Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, 2, 15, 27, 73, and 74

[GN Docket No. 12-268; FCC 14-50]

Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document the Commission adopts rules to implement the broadcast television spectrum incentive auction. Our central objective in designing this incentive auction is to harness the economics of demand for spectrum in order to allow market forces to determine its highest and best use, which will benefit consumers of telecommunications services.

DATES:

Effective October 14, 2014 except for amendments to §§ 1.2105(a)(2)(xii) and (c)(6); 1.2204(a), (c), (d)(3), and (d)(5); 1.2205(c) and (d); 1.2209; 2.1033(c)(19)(iii); 15.713(b)(2)(iv); 15.713(h)(10); 27.14(k) and (t)(6); 27.17(c); 27.19(b) and (c); 73.3700(b)(1)(i) through (v), (b)(2)(i) and (ii), (b)(3), (b)(4)(i) and (ii), and (b)(5); 73.3700(c); 73.3700(d); 73.3700(e)(2) through (6); 73.3700(f); 73.3700(g); 73.3700(h)(4) and (6); 74.602(h)(5)(ii) and (iii); and 74.802(b)(2), which contain new or modified information collection requirements that are not effective until approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the

Federal Register

announcing the effective date for those sections.

FOR FURTHER INFORMATION CONTACT:

Paul Malmud, Wireless Telecommunications Bureau, Broadband Division, at (201) 418-0006 or by email to

Paul.Malmud@fcc.gov.

For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams at (202) 418-2918, or via the Internet at

PRA@fcc.gov.

SUPPLEMENTARY INFORMATION:

The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, facsimile (202) 488-5563, or via email at

fcc@bcpiweb.com.

The complete text is also available on the Commission's Web site at

http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0602/FCC-14-50A1.pdf

. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via email to

bmillin@fcc.gov.

I. Introduction

1. This Order (

See Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions,

FCC 14-50, GN Docket No. 12-268 (rel. June 2, 2014)), adopts rules to implement the broadcast television spectrum incentive auction, which the Federal Communications Commission (“FCC” or “Commission”) proposed in

Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions

77 FR 69934, Nov. 21, 2012 (“

NPRM

”). The incentive auction is a new tool authorized by Congress to help the Commission meet the Nation's accelerating spectrum needs as set forth in the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, sections 6402, 6403, 125 Stat. 156 (2012) (“Spectrum Act”).

II. The Reorganized UHF Band

A. Band Plan for the New 600 MHz Band

1. All-Paired, Down From 51 Band Plan

2. We adopt the 600 MHz Band Plan with paired uplink and downlink bands, which will enhance the value of the 600 MHz Band, consistent with our central goal for the incentive auction. Commenters overwhelmingly support this approach. The few commenters who oppose using paired spectrum blocks support adopting a TDD-only band plan, which does not require separate uplink and downlink spectrum bands. We are unpersuaded that the benefits these commenters assert for allowing TDD technology in the 600 MHz Band—broad global adoption, improved spectrum efficiency, and more dynamic use of communications channels—are sufficiently advantageous to adopt an unpaired, TDD framework for the 600 MHz Band. For example, although TDD operations do not require a duplex gap, TDD operations use five to 10 percent of their spectrum capacity as overhead for time domain duplex guard time intervals, and therefore, are not necessarily more efficient than FDD operations. Further, T-Mobile states that TDD has link budget constraints, resulting in less uplink coverage at the cell edge than an FDD system. Based on our examination of the record, FDD is better suited for the 600 MHz Band at the present time in light of current technology, the Band's propagation characteristics, and potential interference issues present in the Band. Therefore, we decline to adopt a TDD-based band plan.

3. We also decline to allow a mix of TDD and FDD use in the 600 MHz Band, because, as several commenters indicate, allowing both FDD and TDD operations in the 600 MHz Band would require additional guard bands and increase the potential for harmful interference both within and outside the Band. We emphasize that our determination regarding the suitability of an unpaired, TDD framework is limited to the decision before us. Different characteristics of other bands, or advances in technology, may make an unpaired, TDD-compatible framework appropriate in other circumstances.

4. Although most commenters support our decision to offer paired spectrum blocks, the record diverges on how to offer spectrum blocks if we can repurpose more than 84 megahertz, i.e., how to offer 600 MHz licenses below channel 37. Some commenters suggest that it would be beneficial to offer downlink-only blocks because of the asymmetrical nature of broadband traffic patterns. Other commenters note that offering downlink-only blocks creates an easy way to accommodate market variation (i.e., offering different amounts of spectrum in different geographic areas) by varying the amount of downlink offered in a given market. Although we recognize that broadband traffic patterns are currently asymmetrical and offering downlink-only blocks is one way to accommodate market variation, we agree with other commenters that the benefits of offering paired spectrum blocks are greater than the benefits of offering downlink-only blocks in the 600 MHz Band. Further, although some argue that offering downlink-only blocks would mitigate antenna performance issues by creating two separate bands, such an approach would reduce the overall spectrum utility as a result of the necessary frequency separation.

5. In order to repurpose this spectrum, we must enhance the spectrum's value to potential bidders, as well as serve the public interest, and we find that offering paired blocks rather than downlink-only blocks best achieves these goals. To effectively use 600 MHz downlink-only blocks, a provider must not only have available uplink spectrum to pair it with, but that spectrum ideally should be below 1 GHz in order to take advantage of the superior propagation

characteristics of the 600 MHz Band that allow for increased coverage. At the same time, some commenters state that aggregating 600 MHz spectrum with another band below 1 GHz presents technical challenges; consequently, in practice, wireless providers may choose to aggregate 600 MHz downlink-only blocks with a high spectrum band, thus negating some of the coverage benefits of the 600 MHz Band that would be realized from using paired 600 MHz blocks. Further, we agree with commenters that argue that paired blocks are more valuable than downlink-only blocks to new entrants. Recent auctions also suggest that paired spectrum is more valuable to bidders than unpaired blocks.

6. We also agree with commenters that assert that offering downlink-only blocks in the 600 MHz auction may undermine competition. Because providers must pair downlink-only blocks with existing spectrum holdings, new entrants would not be able to use downlink-only blocks, thus limiting their utility. In contrast, offering paired spectrum blocks will benefit all potential 600 MHz Band licensees. We also agree with commenters that assert that paired blocks will facilitate the deployment of networks by smaller carriers and new entrants by allowing them to obtain much-needed low frequency, paired spectrum.

7. Further, offering downlink-only blocks would further complicate the auction design without a commensurate benefit. As explained above, downlink-only blocks are less valuable than paired blocks to bidders, and offering both paired and unpaired blocks would introduce additional differences among licenses in the forward auction and increase the amount of time the auction takes to close. As discussed in the

NPRM,

the Commission expressed the desire to offer generic blocks in order to reduce the time and, therefore, the cost, of bidder participation.

8. Finally, our all-paired band plan generally has nationally consistent blocks and guard bands, which will promote interoperability. In contrast, offering downlink-only blocks could exacerbate interoperability concerns by separating the 600 MHz Band into two bands. If we license both unpaired and paired blocks, we would expect that the industry standards body would create separate bands for the paired blocks and unpaired blocks, as it has done previously. If the 600 MHz Band were split into two separate bands, then some devices could support part, but not all, of the Band. Further, US Cellular raises concerns over the potential for wireless carriers using downlink-only blocks to configure their networks so as to create barriers to roaming. Limiting the auction to paired blocks will help to ameliorate these concerns. It will also promote international harmonization, and in particular, should help to address cross-border issues with Canada and Mexico.

9.

“Down from 51” Approach.

We conclude that the “Down from 51” approach we adopt, with contiguous uplink and downlink bands starting at channel 51, will provide greater technical certainty because of its technical advantages over other options and, therefore, will enhance the value of the 600 MHz Band for bidders and serve the public interest. In particular, a contiguous band plan will reduce the antenna bandwidth for 600 MHz devices, which in turn will reduce the cost and complexity of such devices. As a result, we decline to adopt any of the band plans in which the uplink and downlink bands are “split” (the uplink and downlink bands are not adjacent to one another) because the antenna bandwidth would be much greater.

10. Further, by placing the 600 MHz uplink band next to the 700 MHz uplink band and adopting generally consistent technical rules for the 600 MHz and 700 MHz Bands, we improve spectrum efficiency. This continuity should also speed deployment of the 600 MHz Band and make it easier to develop devices for it. Further, placing the uplink pass band at the upper end of the 600 MHz Band limits the potential effects of both harmonic interference and intermodulation interference. Starting the 600 MHz uplink band at channel 51 also clears television operations out of channel 51, which should help spur deployment of the 700 MHz lower A Block. This approach will provide greater certainty to Wireless Medical Telemetry Service (“WMTS”) operators regarding their operating environment as well, and will likely result in greater spectrum efficiency than placing uplink operations adjacent to channel 37. This approach also simplifies the incentive auction design, which is critical to its overall success. We therefore adopt the “Down from 51” approach and decline to adopt the “Down from 51 Reversed” band plan, in which the downlink band would begin after a guard band at channel 51 (698 MHz), followed by a duplex gap, and then the uplink band.

11. Very few commenters criticize the Down from 51 approach that we adopt in our 600 MHz Band Plan. DISH complains that the Down from 51 band plans that commenters propose limit paired spectrum to the portion of the 600 MHz Band above channel 37, thereby restricting “the amount of spectrum realistically available for smaller operators.” The approach we are adopting, however, involves paired spectrum only, including below channel 37, so it increases the amount of spectrum available for all wireless providers. We decline to adopt J. Pavlica's proposal to first license to wireless broadband providers the VHF channels in the 54-72 MHz and the 174-216 MHz bands (channels 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13). UHF spectrum above 300 MHz is better suited for wireless broadband service because of its propagation characteristics as well as its shorter wavelengths, which allow for smaller radio components including antennas and filters. In addition, the Spectrum Act limits the Commission's ability to repack the VHF channels, which would hamper our ability to repack efficiently if we were to adopt Pavlica's band plan.

2. 5+5 MHz, Interchangeable Spectrum Blocks

12. We adopt the proposal to license in five megahertz blocks, which commenters overwhelmingly support, because these “building blocks” will allow for the greatest amount of flexibility and efficiency in the 600 MHz Band Plan. Specifically, we find that five megahertz blocks: (1) Are the most compatible with current and emerging technologies; (2) may be easily aggregated to form larger blocks; (3) will maximize the number of licensed blocks in each market; and (4) will allow for diverse participation in the auction.

13. We agree with commenters that five megahertz building blocks are most compatible with current wireless technologies. For example, numerous commenters state that five megahertz building blocks are most compatible with several current and emerging wireless broadband technologies, including LTE, LTE-Advanced, High Speed Packet Access + (“HSPA+”), and W-CDMA. Further, because many current wireless broadband technologies operate with five megahertz blocks or blocks that are multiples of five megahertz, this block size facilitates aggregation. Commenters also support our view that five megahertz building blocks will maximize the number of licensed blocks in each market. Finally, licensing in five megahertz building blocks will allow auction participation by small, midsize, regional, and national carriers. As Leap notes, using the smaller five megahertz bandwidth blocks will promote flexibility and allow auction participation by diverse carriers, particularly smaller carriers who may not need such large swaths of spectrum.

14. We decline to license the 600 MHz spectrum using six megahertz blocks, a proposal which no commenters support, and which several commenters oppose. Using six megahertz blocks would strand spectrum and reduce the number of new 600 MHz licenses because most FDD technologies support five megahertz blocks. Similarly, using six megahertz blocks might lead to inefficient use of the spectrum as each six megahertz block would typically accommodate only one active five megahertz LTE channel. Converting six megahertz channels into 5+5 megahertz 600 MHz licenses could, in contrast, create extra blocks to license. As explained further below, because we adopt a 600 MHz Band Plan with paired uplink and downlink bands, we also decline to adopt Sprint's proposal to license the spectrum using ten megahertz blocks to accommodate its band plan proposal for TDD operations.

15. We also adopt the proposal to incorporate “remainder” spectrum, i.e., any excess spectrum remaining after converting six megahertz television channels to paired, 5+5 megahertz 600 MHz licenses, into the 600 MHz Band guard bands to help prevent harmful interference between licensed services. A majority of commenters supports this approach. As discussed below, we find that including these remainders in the guard bands is the best approach to support a straightforward auction design and help bolster innovation and investment by unlicensed devices in the guard band spectrum. We agree with Google and Microsoft that “[s]oliciting separate bids for the remaining small spectrum slivers in the simultaneous forward and reverse auction will introduce needless complexity to the auction process.”

16. In our 600 MHz Band Plan, we create interchangeable, “generic”

1

categories of spectrum blocks by establishing guard bands and technical rules to ensure a like operating environment among different blocks.

1

In referring to “generic licenses” we are not referring to the actual licenses that will be assigned to winning bidders, but to standardized blocks of spectrum which will be used to represent quantities of licenses for a time during the bidding process. We emphasize that licensees will ultimately be assigned a license with a specific frequency assignment, and to the extent that bidders desire a specific frequency to meet their particular business plans, winning bidders will have the opportunity to bid for specific frequency blocks before they are assigned their licenses.

17. Creating spectrum blocks that are as functionally and technically interchangeable as possible enhances substitutability among blocks. Offering interchangeable spectrum blocks allows us to conduct bidding for generic blocks, assigning specific frequencies later, which will speed up the forward auction bidding process. Commenters generally support the proposal to offer interchangeable blocks but emphasize the importance of making them truly interchangeable. Some commenters suggest that we group the spectrum blocks into different classes and treat each class as a separate category. As explained below, we adopt rules that will allow us to group generic blocks into separate categories of licenses for purposes of the forward auction bidding.

18. We also conclude that it is important for wireless providers to be able to aggregate 600 MHz Band spectrum blocks. The ability to aggregate spectrum by obtaining multiple spectrum blocks in the same service area, or licenses in multiple service areas, affords potential bidders significant flexibility to meet their coverage and capacity needs in accordance with their business plans. Commenters overwhelmingly support allowing licensees to aggregate spectrum blocks. Specifically, they encourage us to create an auction process that allows bidders to aggregate contiguous frequency blocks within a service area or across geographic areas using a variety of auction design mechanisms, such as assignment round rules. Under our rules, licensees will be able to aggregate 600 MHz Band spectrum in the forward auction, as well as after the auction. As a result of these rules, wireless providers have the ability to aggregate spectrum to meet their business needs.

3. Geographic Area Licensing

19. We adopt the proposal to implement a geographic licensing approach. We conclude that a geographic licensing approach is well-suited for the types of fixed and mobile services that will likely be deployed in this band. In addition, geographic area licensing is consistent with the licensing approach adopted for similar spectrum bands that support mobile broadband services.

20. Further, we adopt Partial Economic Areas (“PEAs”), which are a combination of Metropolitan Statistical Areas (“MSAs”) and Rural Statistical Areas (“RSAs”) (collectively MSAs and RSAs are referred to as Cellular Market Areas (“CMAs”)), as the service area for the 600 MHz Band licenses. PEAs offer a compromise between Economic Areas (“EAs”) and CMAs because they are smaller than EAs, yet “nest” (or fit) within EAs, and can be easily aggregated into larger areas, such as Major Economic Areas (“MEAs”) and Regional Economic Areas (“REAs” or “REAGs”). And like CMAs, PEAs divide urban and rural areas into separate service areas. In short, this approach will encourage entry by providers that contemplate offering wireless broadband service on a localized basis, yet at the same time will not preclude carriers that plan to provide service on a much larger geographic scale. As a result, licensing by PEAs will best promote entry into the market by the broadest range of potential wireless service providers without unduly complicating the auction. As CCA notes, PEAs “address concerns regarding the unusual complexity of this particular auction while also retaining many of the benefits of small license areas.”

21. Commenters agree that PEAs should: (1) Nest within EAs; (2) reduce the number of service areas (as compared to the 734 CMAs); (3) reflect Metropolitan Statistical Areas (“MSAs”); and (4) be constructed from counties. CCA, NTCA, and RWA argue in favor of using the MSA boundaries that the Commission uses for its current CMA boundaries, updated with 2010 U.S. Census data for each county, because these boundaries have been “employed in numerous previous auctions, including Auctions 73 (700 MHz), 78 (AWS-1), and 92 (Lower 700 MHz).” On the other hand, Verizon argues that we should adopt its proposal, which uses more recent MSAs, because they are “a much more accurate division of rural and urban areas.” (

See

Letter from Tamara Preiss, Vice President, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 12-268 (filed Mar. 20, 2014) (Verizon PEA Proposal))

22. We adopt the PEA boundaries contained in the Joint PEA Proposal (

See

Letters from C. Sean Spivey, Assistant General Counsel for CCA, Jill Canfield, Assistant General Counsel for NTCA, Caressa Bennet, General Counsel for RWA, and John A. Prendergast, Counsel to Blooston Rural Carriers, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 12-268 (filed Mar. 11, 2014 and Mar. 20, 2014) (Joint PEA Proposal)). This approach will promote the simplicity and speed of the incentive auction, as well as our competitive goals. Specifically, the Joint PEA Proposal encourages broad participation by utilizing the MSA boundaries that the Commission currently uses. Because these boundaries may more closely fit many wireless providers' existing footprints, they should provide a greater opportunity for wireless providers to acquire spectrum licenses in their service areas. As Blooston notes, the

Verizon PEA Proposal has “little in common with geographic areas where rural and competitive carriers currently offer wireless service.” In addition, Blooston argues that using the MSAs in the Joint PEA Proposal could increase service to rural areas as compared to Verizon's proposal. Further, while the Joint PEA Proposal provides service areas small enough for smaller carriers to support, the number of total service areas is low enough to reduce the time necessary to complete the incentive auction. With respect to larger carriers, the Joint PEA Proposal “nests” within the EAs so it may facilitate spectrum aggregation during the auction and in the secondary market.

23. We decline to adopt the Verizon PEA Proposal. First, rather than defining the boundaries for all PEAs, Verizon only defines those areas relating to MSAs. Verizon clearly intended to provide the Commission with flexibility to consider a range of alternatives with respect to rural areas. However, implementing Verizon's PEA proposal, while respecting general principles of nesting within EAs and limiting the number of licenses in the auction, would create inefficient service areas for non-MSA-based service areas. Further, adopting the Verizon PEA Proposal may diminish competitive carrier participation in the forward auction. We disagree with Verizon that adopting the Joint PEA Proposal will lead to outdated service areas that are not based on objective criteria. The Joint PEA Proposal creates PEA service areas by utilizing 2010 U.S. Census population and county boundary data; consequently, it takes into account current population data for the counties that are included in each PEA. The PEA boundaries in the Joint PEA Proposal also are based on objective criteria. We further decline to adopt the Verizon Alternative PEA Proposal, which modifies the Joint PEA Proposal “by adding specified counties to the PEAs representing some of the top markets.” (

See

Letter from Tamara Preiss, Vice President, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 12-268 (filed Apr. 29, 2014)). Verizon's proposed modifications to the Joint PEA Proposal also have the potential to diminish competitive carrier participation in the forward auction.

24. Although most commenters support PEAs as an alternative or compromise solution, the nationwide wireless carriers prefer EAs as the license size for the 600 MHz Band, and the smaller and/or rural carriers prefer CMAs. We decline to adopt EAs or CMAs as the licensing scheme for the 600 MHz Band. As discussed above, we need to create interchangeable spectrum blocks in order to permit substitutability among the spectrum blocks (i.e., “generic blocks”) in the forward auction. To accomplish this goal, we can adopt only one license size for the entire 600 MHz Band and cannot offer a mix of license sizes as we have done in previous auctions. Under the PEA approach, there are 416 service areas, which is significantly fewer than the 734 CMA service areas, but more than the 176 EAs. This will reduce the exposure risk to the nationwide carriers as compared to CMAs. In addition, PEAs nest into EAs, MEAs, and REAGs, so that nationwide carriers can aggregate licenses to create the service area they desire, allowing them to take advantage of economies of scale. PEAs separate out the urban and rural areas, which should provide for greater auction participation by rural providers and allow them to bid on a geographic area license that better matches their service area.

25. We also decline to adopt broadcast Designated Market Areas (“DMAs”), nationwide, REAG, or MEA licensing approaches. Some commenters suggest that the Commission consider matching licensing areas to broadcast DMAs to simplify auction procedures by aligning the geographic areas of the forward and reverse auctions. We agree with commenters that assert that DMAs are not appropriate because they do not match wireless service footprints or existing FCC wireless service area designations. Further, we find that DMAs, like EAs, do not sufficiently address the needs of smaller and rural wireless providers, given the number of licenses we would make available. The Commission also sought comment on using nationwide and REAG service areas, but no commenters support using these service areas, and some commenters actively oppose them. T-Mobile recommends that the Commission license by MEAs—a service area size larger than EAs—because the economically efficient size of wireless service is substantially larger than individual EAs, and MEAs will reduce transaction costs and help wireless companies achieve economies of scale. T-Mobile notes that smaller licenses, such as PEAs, are manageable and would not create a significant exposure risk under certain conditions. For the reasons discussed above, using smaller, PEA service areas strikes the appropriate balance and will allow both smaller and larger wireless carriers to obtain licenses that best align with their respective business plans.

26.

Licensing Outside the Continental United States.

The Commission sought comment on licensing of the 600 MHz Band outside the continental United States and in the Gulf of Mexico. For Alaska, Copper Valley Wireless supports licensing Alaska on a CMA basis. RWA (formerly RTG) initially recommended that we license using Alaska Boroughs, which divide the state based on population density, and in any case, use service areas no larger than CMAs. Subsequently, RWA (along with CCA, NTCA, and Blooston) filed the Joint PEA Proposal, which proposes to divide Alaska into four PEAs. Recognizing that Alaska faces uniquely challenging operating conditions for deploying and operating networks, adopting the Joint PEA Proposal endorsed by smaller and rural carrier associations should best address these concerns. The Alaskan PEA boundaries closely approximate the CMA boundaries in Alaska that providers support. We note that to the extent bidders are interested in providing service in Alaska using smaller service areas than PEAs, they may use both pre- and post-auction mechanisms (such as bidding as a consortium and/or partitioning spectrum in a service area) to create the specific area they wish to serve.

27. For the Gulf of Mexico, we will follow the established policy and license the Gulf as a separate license that will be comprised of the water area of the Gulf of Mexico starting 12 nautical miles from the U.S. Gulf Coast and extending outward. Similarly, we will license Guam, the Northern Mariana Islands, Puerto Rico, the United States Virgin Islands, and American Samoa as we have in previous auctions, which is consistent with the Joint PEA Proposal.

28.

Statutory Requirements.

We conclude that our action satisfies the Spectrum Act requirement that the Commission consider assigning licenses that cover geographic areas of a variety of different sizes. Based on the extensive record developed in this proceeding, we have carefully considered assigning licenses using a variety of different geographic area sizes. As stated above, however, we cannot offer a mix of license sizes as we have done in previous auctions without endangering our goal of repurposing spectrum through this auction: Using one license size (PEAs) is essential to creating interchangeable spectrum blocks, which in turn are critical elements of the 600 MHz Band Plan developed to promote a successful incentive auction. We note that various mechanisms are available to carriers that wish to serve larger or smaller geographic areas.

29. We also conclude that licensing the 600 MHz Band on a PEA basis is

consistent with the requirements of section 309(j) because it will promote spectrum opportunities for carriers of different sizes, including small businesses and rural telephone companies. Just as larger carriers can aggregate EAs into larger geographic areas, PEAs are small enough to allow bidders to acquire a limited coverage area—often only a few counties—which should enable small businesses and rural carriers to compete with larger carriers in these areas. Further, if bidders want to acquire licenses for smaller geographic areas, they can make use of the partitioning and disaggregation rules. Although the use of smaller geographic service areas, such as CMAs, could potentially encourage participation by smaller providers and support greater variation in the amount of repurposed spectrum from area to area, on balance offering licenses for a large number of very small geographic service areas would be inconsistent with our auction design goals of simplicity and speed. First, we must use fewer service areas because the time necessary to close the incentive auction increases dramatically as the number of licenses increases. As discussed above, we are designing the forward auction for speed. Further, more service areas could complicate potential bidders' efforts to plan for, and participate in, the auction for related licenses, potentially affecting the success of the auction. More service areas could also complicate subsequent service deployment.

4. Market Variation

30. The 600 MHz Band Plan we adopt can accommodate market variation in order to avoid restricting the amount of repurposed spectrum that is available in most areas nationwide. We intend to offer a uniform number of 600 MHz spectrum licenses in most markets across the country, but the 600 MHz Band Plan will enable us to offer some impaired spectrum blocks, or alternatively, fewer spectrum blocks, in constrained markets where less spectrum is available. We find that accommodating market variation is necessary. If the 600 MHz Band Plan could not accommodate some market variation, we would be forced to limit the amount of spectrum offered across the nation to what is available in the most constrained market (the “least common denominator”), even if more spectrum could be made available in the vast majority of the country. By allowing for market variation in our 600 MHz Band Plan, we can ensure that broadcasters have the opportunity to participate in the reverse auction in markets where interest is high. As a result, more spectrum can be made available nationwide in the forward auction.

31. We recognize that there are certain advantages to having a generally consistent band plan. In particular, limiting the amount of market variation will limit the amount of potential co- and adjacent channel interference between television and wireless services in nearby areas (“inter-service interference”). Furthermore, limiting the amount of variation will help licensees achieve economies of scale when deploying their 600 MHz networks. Therefore, we will accommodate market variation to a limited extent only. In no case will we offer

more

spectrum in an area than the amount we decide to offer in most markets nationwide. Rather, we will offer the same amount of spectrum nationwide in all areas where sufficient spectrum is available. In constrained markets where less spectrum is available, we will offer impaired blocks or fewer blocks than we offer in most markets nationwide.

32. The decision to accommodate market variation raises a number of issues, including how to prevent inter-service interference consistent with the requirements of the Spectrum Act, how much market variation to accommodate under different spectrum recovery scenarios, where to place television stations in the 600 MHz Band if necessary in constrained markets, and whether and how to offer impaired spectrum blocks in the forward auction. Here, we explain the process by which we will resolve these issues and establish rules and auction procedures related to inter-service interference. Specifically, following this Order, we plan to issue an order that establishes the methodology for preventing inter-service interference. That methodology will govern post-auction co- or adjacent-channel operation of television and wireless services, including operation of new 600 MHz licensees in these areas (i.e., additional rules for licensees that hold impaired 600 MHz licenses). We will issue that order concurrent with issuing the

Incentive Auction Comment Public Notice

(“

Comment PN

”) inviting comment on final, specific auction procedures. This approach will ensure that potential bidders in both the forward and reverse auctions have a clear understanding about how we will protect against inter-service interference in the 600 MHz Band, and have an opportunity to comment on how such protection should be taken into consideration in the auction process.

33. The

Comment PN

will seek comment on aspects of market variation and inter-service interference that affect the incentive auction, such as how much market variation to accommodate under different spectrum recovery scenarios, where to place television stations in the 600 MHz Band in constrained markets, if necessary, and whether and how to auction impaired spectrum blocks. We will resolve these issues in the

Incentive Auction Procedures Public Notice

(“

Procedures PN

”). The approach we adopt will appropriately balance the costs and benefits of having a nationwide band plan versus accommodating market variation.

34. Although we defer establishing the methodology by which we will prevent inter-service interference so that we can do so based on a fully developed record with meaningful public input, we provide guidance on several matters in this Order. First, to prevent inter-service interference to television stations, 600 MHz licensees with impaired licenses may be required to operate within smaller boundaries than the entire area for which they hold a license. We will provide forward auction bidders with sufficient information both before and after the incentive auction to determine whether they are bidding on, or hold, an impaired license. Licensees with impaired licenses will be limited to operation within the boundaries permitted under the inter-service interference rules we adopt (“permitted boundaries”). Thus, for example, licensees with impaired licenses will be allowed to operate at the power and out-of-band emission (“OOBE”) limits authorized by our technical rules only to the permitted boundaries of the impaired licenses, even if the actual boundaries of their license areas extend further. Likewise, such licensees will be required to meet the build-out requirements only for the area they are permitted to serve within each license area.

35. Second, television stations operating on a co- or adjacent channel to a new 600 MHz licensee in a nearby market will be limited in their ability to expand their facilities following the incentive auction. In these markets, some broadcasters will be operating adjacent to or co-channel to wireless licensees. Such television licensees will not be permitted to expand their noise-limited service contours if doing so would increase the potential for interference to a wireless licensee's service area. We recognize that there may be extraordinary circumstances beyond the control of a television licensee in which it must involuntarily relocate its facilities or cannot replicate its service area on its new channel after

the repacking process without expanding its contour in the direction of the wireless license area. Because this type of modification would affect both the television licensee and the wireless licensee, we expect these cases will need to be evaluated on a case-by-case basis, and will carefully consider requests for waiver of our rules in such situations. We encourage television and wireless licensees to work cooperatively to find an equitable solution should this situation arise.

5. Guard Bands

36. As permitted by section 6407(a), we incorporate guard bands into our 600 MHz Band Plan to prevent harmful interference between licensed services. Commenters strongly support the use of such guard bands. We adopt a guard band between television and wireless operations that ranges from seven megahertz to 11 megahertz, depending on the amount of spectrum cleared, as discussed below. We adopt a uniform duplex gap of 11 megahertz for every clearing scenario, and uniform three megahertz guard bands to protect against interference between licensed WMTS services on channel 37 and adjacent wireless services. The Spectrum Act specifically authorizes the FCC to implement band plans with guard bands, subject to a “technically reasonable” restriction. We interpret the statute to affirm the Commission's discretion to employ guard bands in exercising its spectrum management authority. Establishing these guard bands not only protects against harmful interference between the 600 MHz service and adjacent licensed services, but also helps to ensure that the 600 MHz spectrum blocks that we offer in the forward auction are as interchangeable as possible, consistent with our auction goals. Guard bands also will bolster innovation and investment by unlicensed devices. In that regard, section 6407(c) of the Spectrum Act specifically authorizes “the use of such guard bands for unlicensed use.”

37. As discussed above, the incentive auction presents the unique challenge of not knowing in advance how much spectrum will be repurposed, and the 600 MHz Band Plan we adopt is therefore flexible enough to accommodate different spectrum recovery scenarios. The guard bands are tailored to the technical properties of the 600 MHz Band under each scenario. In some scenarios, converting six megahertz television channels to paired five megahertz blocks would leave “remainders” of spectrum smaller than six megahertz. Auctioning these remainders would be inconsistent with our decision to license the 600 MHz Band in paired five megahertz spectrum blocks, and would needlessly complicate the auction design. Accordingly, such remainders are incorporated into the guard bands. As a result, the guard band between television and 600 MHz downlink varies in size to some extent under different spectrum recovery scenarios.

38. Guard band size is subject to the statutory “technically reasonable” restriction we address below. Importantly, it also is limited by our goals for the incentive auction. The statute requires that the forward auction proceeds cover the costs of incentive payments to clear broadcasters from the 600 MHz Band and other identified costs. The amount of spectrum available to generate such proceeds decreases with increases in guard band size. In other words, the bigger the guard bands, the less spectrum we can offer for sale in the forward auction. Alternatively, we could seek to repurpose more spectrum, but that would require clearing more broadcasters, increasing the costs of incentive payments without increasing the amount of spectrum available in the forward auction to generate the necessary proceeds. Thus, in sizing the guard bands, we must be mindful of the objective of repurposing spectrum for new, flexible uses, which can be fulfilled only if the forward auction generates sufficient proceeds. Decreases in the amount of licensed spectrum available in the forward auction also may undermine competition among licensed providers in the 600 MHz Band, another important policy objective. The guard bands we establish in the 600 MHz Band Plan factor in all of these considerations.

39. The guard bands meet the statutory requirement that guard bands be “no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands.” We interpret “harmful interference” consistent with our rules, which define harmful interference as interference that “seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service.” Courts have held that the use of the statutory term “reasonable” “opens a rather large area for the free play of agency discretion.” In contrast, the term “necessary” has been read to refer to something “required to achieve a desired goal.” In that regard, we reject suggestions that the statute requires the Commission to restrict guard bands to the

minimum

size necessary to prevent harmful interference. Congress knows how to draft provisions of this kind, and did not use such language in section 6407. Rather, it left determination of the appropriate size of the guard bands to prevent harmful interference to the Commission's “reasonable” technical judgment. Establishing “technically reasonable” guard bands is thus not only a matter that Congress left to the Commission's discretion, but also the type of predictive judgment that lies at the core of the agency's expertise.

40. The record supports our conclusion that the guard bands we adopt are technically reasonable to prevent harmful interference. With respect to the guard band between television and wireless operations, which may be from seven to 11 megahertz depending on the spectrum recovery scenario, most commenters support a size within that range. With regard to the duplex gap, which is 11 megahertz, a number of device manufacturers and wireless carriers support a size of 10 to 12 megahertz. Incorporating the “remainder” spectrum into the guard band between television and wireless operations enhances the protection against harmful interference to licensed services. The three megahertz guard band in our Band Plan between WMTS on channel 37 and 600 MHz operations likewise is supported by examination of the record.

41. Guard bands employ frequency separation to protect against harmful interference between licensed services outside the guard bands; the degree of protection generally increases with the amount of separation. The extent to which frequency separation reduces the potential for interference between a transmitter and a receiver can be measured by a well-established relationship among transmitted power spectral density, receiver selectivity, and frequency separation between transmitter and receiver. In the case of television and the 600 MHz downlink, the two specific interference cases are a television transmitter to a mobile broadband device, and a mobile broadband base station to a television receiver. Frequency dependent rejection (“FDR”) values for these two cases at different degrees of frequency separation show significant differences in likely interference. Taken together, the results of these two interference cases corroborate our decision that the technically reasonable guard band size between television and the 600 MHz downlink is seven to 11 megahertz, depending on the particular band plan scenario.

42. Transmit and receive filters often contribute significantly to interference protection, and accordingly we also

consider the capabilities of mobile device filters in the case of television and the 600 MHz downlink. The transition band, or separation needed for significant filter rejection, can be as small as seven megahertz with reasonable cost, complexity, and size, but increasing the transition band size up to 11 megahertz reduces the filter cost, complexity, and size and enables a greater variety of filter technologies to be considered. Consideration of this determination together with our FDR analysis confirms that a guard band size between television and wireless operations of seven to 11 megahertz is technically reasonable.

43. With respect to the duplex gap, many FDD technologies, including FD-LTE, allow simultaneous transmission and reception. Because the transmitter and receiver are co-located, however, there is a potential for self-interference (i.e., harmful interference within the device). For this reason, the FDD device contains a receive and a transmit filter designed to operate together to reduce the likelihood of such interference. The two filters depend on frequency separation, often referred to as the “duplex gap,” to operate properly. Factors that affect the impact of frequency separation are the transmitter's Out of Band Emissions (“OOBE”) and filter capability. With regard to the former, a duplex gap of up to 11 megahertz, depending on the spectrum recovery scenario, is reasonable to prevent third order intermodulation products adjacent to the transmit signal from overlapping the frequency region of the receive signal. With regard to filter capability, in order to be as large as the achievable transition band, and considering the high rejection needed to prevent self-interference, the duplex gap should be at least 11 megahertz. Consideration of these two factors together confirms that the duplex gap in our 600 MHz Band Plan, which is 11 megahertz, is technically reasonable to prevent harmful interference.

44. We reject arguments that the Commission should establish larger guard bands to facilitate their use by unlicensed devices. For the reasons discussed above, doing so would threaten our ability to meet our goals in the incentive auction. Moreover, guard bands larger than those incorporated in our 600 MHz Band Plan would not satisfy the requirements of section 6407(b). The statutory “technically reasonable” restriction was a compromise between one legislative proposal that would have required all repurposed spectrum to be licensed and other proposals that would have designated or reallocated repurposed spectrum specifically for unlicensed use. That compromise permits the establishment of guard bands, and the use of such guard bands for unlicensed use, but requires that the guard bands be no larger than the Commission determines is technically reasonable for the specific purpose of preventing harmful interference between licensed services outside the guard bands. Thus, we reject suggestions that section 6407(c) implicitly requires us to size guard bands to facilitate unlicensed use without regard to their effect in preventing harmful interference. Such arguments would effectively negate Congress's express directive in section 6407(b) regarding “size of guard bands.” We also reject NCTA's argument that the duplex gap is not a “guard band” and, therefore, need not be sized in accordance with section 6407(b).

6. Band Plan Technical Considerations

a. Pass Band Size and Mobile Filter Considerations

45. The 600 MHz Band Plan we adopt has at most a 60 megahertz pass band size, which can be accommodated by using multiple filters. The specific size of the pass band for the 600 MHz Band Plan depends on the amount of spectrum we can ultimately make available in the forward auction. Based on the results of our technical analysis, we agree with the commenters that assert that the maximum pass band size for current technology is roughly four percent of the center frequency for a single filter. However, we also agree with commenters who point out that this need not limit the 600 MHz Band Plan pass band size, as multiple duplexers can be used. Therefore, filter pass band size is not a limit on the pass band size for our 600 MHz Band Plan.

b. Mobile Antenna Considerations

46. We will not limit the amount of paired spectrum we make available because of mobile antenna concerns. We agree with Ericsson, T-Mobile and others that although more paired spectrum in a single band decreases antenna performance to some extent, it is better nonetheless to make more paired spectrum available. For example, the propagation of the 600 MHz Band is such that even if repurposing a large amount of spectrum has a coverage impact, the coverage would still be as good as the 700 or 800 MHz Bands. The relatively small potential costs of degradation in antenna performance are outweighed by the utility of repurposing spectrum. Further, these issues can be addressed using a tunable antenna or other antenna technologies. Therefore, we will not limit the amount of paired spectrum we make available because of mobile antenna concerns.

c. Intermodulation Interference

47. We will not limit the amount of spectrum available in the forward auction based on intermodulation interference concerns. We find that with appropriate frequency separation, placing television stations in the duplex gap will not cause harmful interference, should we decide to do so to accommodate market variation. We also agree with Alcatel-Lucent that a technically reasonable duplex gap, which we adopt as part of our 600 MHz Band Plan, will prevent in-band third order intermodulation products from falling in the downlink pass band.

d. Harmonic Interference

48. Any potential harmonic interference created in the 600 MHz Band can be effectively mitigated so that it does not result in harmful interference. The risk of mobile-to-mobile harmful interference through harmonic interference is minimal. In addition, although we recognize that harmful interference within a device could occur in a carrier aggregation scenario, we agree with commenters who suggest that this potential can be mitigated in various ways. Therefore, we find that we do not need to limit the amount of spectrum we offer in the 600 MHz Band due to the potential for harmonic interference.

7. Specific Band Plan Scenarios

49. Below we discuss in detail the specific 600 MHz Band Plan scenarios we may use in the forward auction. These range from offering two sets of paired blocks to 12 sets of paired blocks, in the configurations shown above. In addition, we discuss the number of licensed blocks we can offer based on the amount of repurposed spectrum, and the size of the guard bands, including the duplex gap, under each of these scenarios.

50. We note that we do not offer a scenario for fewer than two sets of paired blocks or more than 12 sets of paired blocks because the costs outweigh the benefits of offering only one set of paired blocks, given that we would need to clear five television channels in this scenario. Further, we decline to create scenarios for more than 12 sets of paired blocks, i.e., using more than a 144 megahertz clearing target.

51. Specifically, we do not offer scenarios with 13 or more sets of paired blocks, due to the inefficiencies associated with the position of channel

37 (used for RAS and WMTS) in the 600 MHz Band. To offer 14 sets of paired blocks, we would need to place one downlink block above channel 37 and the rest of the downlink blocks below channel 37, resulting in an additional duplexer to support only this one block. Therefore, in this case the costs outweigh the benefits of placing only one downlink block above channel 37.

a. Two Sets of Paired Blocks (42 Megahertz Repurposed)

52. Under this scenario, we create two sets of paired blocks from 42 megahertz of repurposed spectrum. We establish an 11 megahertz duplex gap, which is large enough to ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allows for a feasible transition band for the transmit and receive filters. We also use an 11 megahertz guard band between the 600 MHz downlink and television operations, which provides reasonable rejection and allows for an achievable transition bandwidth in the mobile filters. This scenario requires 10 megahertz filter pass bands and 31 megahertz of antenna bandwidth, which no commenters suggest present technical difficulties.

b. Three Sets of Paired Blocks (48 Megahertz Repurposed)

53. The Band Plan scenario for three sets of paired blocks will be used if we have 48 megahertz of repurposed spectrum. Under this scenario, we establish an 11 megahertz duplex gap, which is large enough to ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allows for a feasible transition band for the transmit and receive filters. We create a seven megahertz guard band between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth. This scenario requires 15 megahertz filter pass bands and 41 megahertz of antenna bandwidth, which no commenters suggest present technical difficulties.

c. Four Sets of Paired Blocks (60 Megahertz Repurposed)

54. Under this scenario, we create four sets of paired blocks from 60 megahertz of repurposed spectrum. We create an 11 megahertz duplex gap, which is large enough to ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allows for a feasible transition band for the transmit and receive filters. We also create a nine megahertz guard band between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth. This scenario requires 20 megahertz filter pass bands and 51 megahertz of antenna bandwidth, which no commenters suggest present technical difficulties.

d. Five Sets of Paired Blocks (72 Megahertz Repurposed)

55. The Band Plan scenario for five sets of paired blocks will be used if we have 72 megahertz of repurposed spectrum. Under this scenario, we establish an 11 megahertz duplex gap, which is required in this case to ensure there is no overlap of third order intermodulation products between transmit and receive channels and allow for a transition bandwidth that can be supported by all mobile filter technologies. We establish an 11 megahertz guard band between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth. This scenario requires 25 megahertz filter pass bands and 61 megahertz of antenna bandwidth, which no commenters suggest present significant technical difficulties.

e. Six Sets of Paired Blocks (78 Megahertz Repurposed)

56. Under this scenario, we create six sets of paired blocks from 78 megahertz of repurposed spectrum. We create an 11 megahertz duplex gap, which, as discussed above, is required to ensure there is no overlap of third order intermodulation products between transmit and receive channels and allow for a transition bandwidth that can be supported by all mobile filter technologies. We establish a seven megahertz guard between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth. This scenario has a 30 megahertz pass band in the uplink and downlink bands.

57. Some commenters suggest we should limit paired spectrum to 25 megahertz pass bands (i.e., five sets of paired blocks) due to mobile filter limitations. However, we reject this limitation because we recognize that technology improves over time and 30 megahertz mobile filter pass bands may become feasible, and, the 600 MHz Band could be implemented with multiple filters (duplexers) if necessary.

58. This scenario requires 71 megahertz of antenna bandwidth, which is somewhat above the approximately 60 megahertz limit some commenters propose for the 600 MHz Band. As discussed above, we reject this limit and agree with T-Mobile that any performance degradation will be small (less than 1 dB) and can be mitigated by using tunable antennas or other technologies.

59. Finally, some commenters suggest the uplink pass band should be limited to 25 megahertz due to the potential for harmonic interference with the BRS/EBS band. As discussed above, the likelihood of such interference is low, and it does not prevent use of the spectrum; it only limits the potential for carrier aggregation with the BRS/EBS band. This potential limitation is outweighed by the benefit of making more spectrum available, and as a result, we determine that we should not limit the size of the paired bands if enough repurposed spectrum is available.

f. Seven Sets of Paired Blocks (84 Megahertz Repurposed)

60. The Band Plan scenario for seven sets of paired blocks will be used if we have 84 megahertz of repurposed spectrum. Under this scenario, we establish an 11 megahertz duplex gap, which, as discussed above, will ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allow for a transition bandwidth that can be supported by all mobile filter technologies. We create a three megahertz guard band between the mobile downlink and WMTS services in channel 37, which as discussed above, will minimize the likelihood of harmful interference to WMTS devices. We also note that this three megahertz guard band combined with channel 37 forms an effective nine megahertz guard band between the downlink band and television operations, which, as discussed above, provides reasonable rejection and allows for a feasible transition bandwidth.

61. This scenario has a 35 megahertz pass band in both the uplink and downlink bands, and requires 81 megahertz of antenna bandwidth in a static approach. As discussed above, this configuration exceeds the pass band sizes and antenna bandwidth limits proposed by some commenters to address mobile filter, antenna bandwidth, and/or harmonic interference concerns. For the reasons discussed above, we decline to limit the amount of paired spectrum we will offer in the forward auction, should we have enough repurposed spectrum available.

g. Eight Sets of Paired Blocks (108 Megahertz Repurposed)

62. Under this scenario, we create nine sets of paired blocks from 108 megahertz of repurposed spectrum. We create an 11 megahertz duplex gap, which will ensure there is no overlap of third-order intermodulation products between transmit and receive channels, and allow for a feasible transition bandwidth. Under this scenario, we establish two three megahertz guard bands between the mobile downlink band and WMTS services in channel 37 (both above and below channel 37), which will minimize the likelihood of harmful interference to WMTS devices. We also establish an 11 megahertz guard band between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth, as discussed above.

63. This scenario has a 40 megahertz pass band in the uplink band, and two pass bands in the downlink band (30 megahertz above channel 37 and 10 megahertz below channel 37), which will require implementing two to three duplexers. Under a two duplexer approach, the band would be split into 30+30 megahertz and 10+10 megahertz. Although a 30+30 megahertz duplexer exceeds the 25 megahertz pass band discussed above, alternate technologies such as lithium niobate may allow for larger pass bands (up to 36 megahertz). Although lithium niobate offers lower Q values and therefore potentially larger transition bands, as can be seen in the diagram below, the 30+30 megahertz filter would be 33 megahertz from television operations, allowing a very large transition band for this filter; while the 10+10 megahertz duplexer would need an 11 megahertz transition bandwidth, which is feasible today. Alternatively, this scenario could be implemented using three duplexers, with two duplexers in the 30+30 megahertz portion. Under either a two or three duplexer approach, the duplex spacing of the lower 10+10 megahertz portion would be different from the upper 30+30 megahertz portion. This does not present an implementation challenge; in the past 3GPP has approved a band with different duplex spacing for different blocks within the band.

64. In addition to creating a 40 megahertz pass band in the uplink band, this configuration requires 103 megahertz of antenna bandwidth in a static approach, but only 73 megahertz in a tunable approach. As discussed above, this configuration exceeds the pass band sizes proposed by some commenters to address mobile filter, antenna bandwidth, and/or harmonic interference concerns. For the reasons discussed above, and in the Order, we decline to limit the amount of paired spectrum we will offer in the forward auction, should we have enough repurposed spectrum available.

h. Nine Sets of Paired Blocks (114 Megahertz Repurposed)

65. The Band Plan scenario for nine sets of paired blocks will be used if we have 114 megahertz of repurposed spectrum. As discussed above, we establish an 11 megahertz duplex gap to ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allow for a feasible transition bandwidth. In this scenario, we create two three megahertz guard bands between the mobile downlink and WMTS services in channel 37, both above and below channel 37, which will minimize the likelihood of harmful interference to WMTS devices. We establish a seven megahertz guard band between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth.

66. This scenario has a 45 megahertz pass band in the uplink band and two pass band in the downlink band (25 megahertz above channel 37 and 20 megahertz below channel 37), which can be implemented with two duplexers, 25+25 megahertz and 20+20 megahertz, within the capabilities of current mobile filter technology. This plan requires 88 megahertz of antenna bandwidth using a tunable antenna, and may have some degradation. As discussed above, this configuration exceeds the pass band sizes and antenna bandwidth limits proposed by some commenters to address mobile filter, antenna bandwidth, and/or harmonic interference concerns. For the reasons discussed above, we decline to limit the amount of paired spectrum we will offer in the forward auction, should we have enough repurposed spectrum available.

i. Ten Sets of Paired Blocks (126 Megahertz Repurposed)

67. Although commenters focus on how to configure a band plan for 120 megahertz of repurposed spectrum or less, we provide scenarios for more than 120 megahertz should we have sufficient repurposed spectrum and decide to offer more than 120 megahertz in the forward auction. As discussed above, we note that we have not yet determined our initial clearing target, so we may not necessarily offer these scenarios in the forward auction.

68. Under this scenario, we create 10 sets of paired blocks from 126 megahertz of repurposed spectrum. As discussed above, we create an 11 megahertz duplex gap in this case to ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allow for a feasible transition bandwidth. In this scenario, we create two three megahertz guard bands between the mobile downlink band and WMTS services in channel 37 (both above and below channel 37), which as discussed in the Order, will minimize the likelihood of harmful interference to WMTS devices. We also create a nine megahertz guard band between the downlink band and television operations, which provides reasonable rejection and allows for a feasible transition bandwidth for all filter technologies, as discussed above.

69. This scenario has a 50 megahertz pass band in the uplink band, and two pass bands in the downlink band (30 megahertz below channel 37 and 20 megahertz above channel 37), which, as in the 108 megahertz scenario above, could be implemented with two or three duplexers. This scenario requires 93 megahertz of antenna bandwidth assuming a tunable antenna, and may have some degradation. As discussed above, this configuration exceeds the pass band sizes and antenna bandwidth limits proposed by some commenters to address mobile filter, antenna bandwidth, and/or harmonic interference concerns. For the reasons discussed above, and in the Order, we decline to limit the amount of paired spectrum we will offer in the forward auction, should we have enough repurposed spectrum available.

j. Eleven Sets of Paired Blocks (138 Megahertz Repurposed)

70. The Band Plan scenario for 11 sets of paired blocks will be used if we have 138 megahertz of repurposed spectrum. In this scenario, we create an 11 megahertz duplex gap, which will ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allow for a feasible transition bandwidth. In this scenario, we establish two three megahertz guard bands between the mobile downlink band and WMTS services in channel 37—both above and below channel 37—which, as discussed above, will minimize the likelihood of harmful interference to WMTS devices. We also create an 11 megahertz guard band between the downlink band and television operations, which, as discussed above, provides reasonable

rejection and allows for a feasible transition bandwidth.

71. This scenario has a 55 megahertz pass band in the uplink band, and two pass bands in the downlink band (40 megahertz and 15 megahertz), which would most likely be implemented with three duplexers. This scenario requires 98 megahertz of antenna bandwidth assuming a tunable antenna, and may have some degradation. As discussed above, this configuration exceeds the pass band sizes and antenna bandwidth limits proposed by some commenters to address mobile filter, antenna bandwidth, and/or harmonic interference concerns. For the reasons discussed above, we decline to limit the amount of paired spectrum we will offer in the forward auction, should we have enough repurposed spectrum available.

k. Twelve Sets of Paired Blocks (144 Megahertz Repurposed)

72. The Band Plan scenario for 12 sets of paired blocks will be used if we have 144 megahertz of repurposed spectrum. In this scenario, we create an 11 megahertz duplex gap, which will ensure there is no overlap of third order intermodulation products between transmit and receive channels, and allow for a feasible transition bandwidth. In this scenario, we establish two three megahertz guard bands between the mobile downlink band and WMTS services in channel 37—both above and below channel 37—which, as discussed above, will minimize the likelihood of harmful interference to WMTS devices. We also create a seven megahertz guard band between the downlink band and television operations, which, as discussed above, provides reasonable rejection and allows for a feasible transition bandwidth.

73. This scenario has a 60 megahertz pass band in the uplink band, and two pass bands in the downlink band (50 megahertz and 10 megahertz), which would most likely be implemented with three duplexers. This scenario requires 103 megahertz of antenna bandwidth assuming a tunable antenna, and may have some degradation. As discussed above, this configuration exceeds the pass band sizes and antenna bandwidth limits proposed by some commenters to address mobile filter, antenna bandwidth, and/or harmonic interference concerns. For the reasons discussed above, we decline to limit the amount of paired spectrum we will offer in the forward auction, should we have enough repurposed spectrum available.

B. Repacking the Broadcast Television Bands

74. Repacking involves reorganizing television stations in the broadcast television bands so that the stations that remain on the air after the incentive auction occupy a smaller portion of the UHF band, thereby freeing up a portion of that band for new wireless uses. In repacking, the Commission will exercise its longstanding spectrum management authority, as it has in prior actions such as the digital television transition, as well as the specific grant of authority in the Spectrum Act. The Spectrum Act imposes express requirements on that exercise of authority; in particular, it makes repacking “subject to international coordination along the border with Mexico and Canada” and requires “all reasonable efforts to preserve, as of the date of the enactment of this Act, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69.”

75. The selection of winning reverse auction bids will depend in part on the Commission's ability to assign television channels to the stations that are not relinquishing their spectrum usage rights. Because participation in the reverse auction is voluntary, the option for active bidders to stay in their pre-auction band must remain available. To ensure this option is available, the feasibility of assigning a channel in the pre-auction band must be checked for each non-participating station and each active bidder before each auction round. The reverse auction and the repacking process are, therefore, interdependent; for the incentive auction to succeed, they must work together.

76. Speed is critical to the successful implementation of the incentive auction. If the reverse auction bidding takes an unreasonably long time to complete because of the time required to determine whether there is an appropriate channel for each station that has not relinquished its spectrum usage rights, then the viability of the auction as a whole will be threatened. Our repacking methodology, therefore, must be capable of analyzing complex technical issues in a timely manner, that is, fast enough not to unduly slow down the bidding process. Certainty also is vital: because the reverse auction outcome depends on repacking decisions, the results of the repacking process cannot be tentative or indefinite after the auction is complete.

1. Repacking Process Overview

77. The implementation of the repacking process is driven by the Spectrum Act's express requirements, as well as by auction design considerations. During the reverse auction bidding process, it will undertake a “repacking feasibility check” to ensure that each station that will remain on the air after the incentive auction is reassigned to a channel that satisfies the statutory preservation mandate. After the final stage rule is satisfied and bidding stops (but before the incentive auction concludes), channel assignments will be optimized and finalized. This approach will enable rapid evaluation of bids during the reverse auction and will provide certainty that a channel that complies with the requirements imposed by the Spectrum Act and our rules is available for every station that remains on the air following the incentive auction.

78. Prior to the commencement of the reverse auction, the staff will determine the coverage area and population served as of February 22, 2012 (the date of the enactment of the Spectrum Act) of every television station whose coverage area and population served the Commission will make all reasonable efforts to preserve in the repacking process, using the methodology described in the Office of Engineering and Technology Bulletin No. 69 (“OET-69”). With respect to certain facilities the Commission is exercising discretion to protect it will determine the coverage area and population served as of dates appropriate to those facilities. Based on this data, the staff will develop constraint files for each station using the approach set forth in the

Repacking Data PN

(

See Incentive Auction Task Force Releases Information Related to the Incentive Auction Repacking,

ET Docket 13-26, GN Docket No. 12-268, Public Notice, 28 FCC Rcd 10370 (2013)), with some exceptions. Specifically, an “interference-paired” file will be produced that includes, for each station, a list of all the other television stations that could

not

be assigned to operate on the same channel or on an adjacent channel with each particular station. Additionally, a “domain” file will be produced that includes, for each station, a list of all the channels to which the station could be assigned considering “fixed constraints,” that is, incumbents in the bands other than domestic television stations that are entitled to interference protection at fixed geographic locations and on specific channels. The two files, collectively the “constraint files,” will be used to check the feasibility of

assigning permissible channels to stations that will remain on the air. The constraint files will enable the repacking methodology to rapidly evaluate during the reverse auction bidding process whether a channel could feasibly (that is, consistent with the preservation mandate of the Spectrum Act) be assigned to each station in light of the other stations that must also be assigned channels at that point during the auction.

79. The Commission adopted the approach to developing constraint files proposed in the

Repacking Data PN,

except that the determination of coverage area and population served, as required by the Spectrum Act, will not be calculated based on a single channel, or “proxy” channel, in each band. Instead, the Commission will calculate the coverage of a station and the interference between stations on every possible channel that could be assigned to the station during the repacking process. Further, the data inputs and assumptions that appear in the

Repacking Data PN

will be updated to reflect the decisions adopted in this Order.

80. During the initialization step of the reverse auction, the initial “clearing target” for how much television spectrum will be repurposed through the reverse auction and the repacking process will be determined based on broadcast stations' collective willingness to relinquish spectrum usage rights at the opening prices announced by the Commission. The clearing target will dictate the total number of remaining channels available for the repacking process.

81. At the start of the reverse auction bidding process, broadcast stations will fall into two general categories: Non-participating stations that will remain on the air after the incentive auction, and participating stations that may or may not remain on the air (including stations that may elect to change bands from UHF to VHF or high VHF to low VHF), depending on the reverse auction outcome. The repacking feasibility checker will ensure that every non-participating station can be assigned a television channel in its pre-auction band. Each time a participating station drops out of the auction, the repacking feasibility checker will determine whether a channel is available for each individual station that continues to participate in the bidding. The bidding will continue within a stage until every station has either dropped out of the auction or had its bid accepted. Final channel assignments will not be made during the bidding stage.

82. After the bidding in the reverse auction ends, the forward auction bidding will begin. As the forward auction bidding proceeds, whether the final stage rule is met will be evaluated. If the rule has not been satisfied, a new stage of the auction will commence with a lower spectrum clearing target. If the rule has been satisfied, the channel assignments for each station that will remain on the air will be optimized to ensure an efficient post-incentive auction channel assignment scheme, taking into consideration factors such as minimizing relocation costs. The Commission will seek comment on the details of the channel assignment optimization in the

Comment PN.

2. Implementing the Statutory Preservation Mandate

a. “All Reasonable Efforts”

83. The Spectrum Act gives the Commission broad discretion to “make such reassignments of television stations that the Commission considers appropriate” “[f]or purposes of making available spectrum to carry out the forward auction.” Congress imposed a qualification on this general mandate: “the Commission must make

all reasonable efforts

to preserve, as of the date of the enactment of this Act, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin No. 69 of the Office of Engineering and Technology of the Commission.”

84. The Commission interprets our “all reasonable efforts” obligation in light of the statutory context. Thus, in determining what is “reasonable,” the Commission should take into account the other objectives in the Spectrum Act, including the goal of repurposing spectrum—an objective which clearly militates in favor of an efficient repacking method. This reading is consistent with the rest of the Spectrum Act. Section 6403(a)(1), for example, directs the Commission to “conduct a reverse auction . . .

in order to make spectrum available

for assignment through a system of competitive bidding.” It is also consistent with Congressional intent. The Commission therefore finds that the statute requires that it use all reasonable efforts to preserve each station's coverage area and population served without sacrificing the goal of using market forces to repurpose spectrum for new, flexible uses.

85. Accordingly, the Commission rejects NAB's contention that § 6403(b)(2) of the Spectrum Act is a “hold harmless” provision that requires the Commission to identify “extraordinary” or “truly exceptional” circumstances before altering a station's coverage area and population served. The Commission notes that courts have interpreted the phrases “all reasonable efforts” or “every

reasonable

effort” to “require[] that a party make every reasonable effort, not every

conceivable

one.” Congress included the term “reasonable” in the statute because it anticipated that broadcasters' interests would not be the only interests that the Commission would have to consider in the repacking process. Had Congress instead intended to ensure the primacy of broadcasters' interests over all others, as NAB and others contend, Congress could have so specified. It did not. Instead, it required the Commission to make “all reasonable efforts” to preserve their coverage areas and populations served, a qualification that requires of the Commission a certain level of

effort

rather than a particular outcome. Accordingly, the Commission does not believe the statute requires us to precisely and strictly preserve broadcasters' coverage areas and populations served without considering the other objectives in the Spectrum Act.

86. Nor does the legislative history support broadcasters' interpretation of § 6403(b)(2). Comcast claims that “[d]uring markup, Congress specifically rejected alternate language that could have allowed the auction and repacking process to permanently reduce broadcasters' existing coverage, as long as the process resulted in `substantially similar' coverage.” Comcast's argument misses the mark. The cited legislative history informs our reading of “coverage area and population served” in section 6403(b)(2). The Commission interpreted those terms to require efforts to preserve service to those viewers who had access to a station's signal within its protected coverage area as of February 22, 2012—an outcome that is consistent with Congress' rejection of the term “substantially similar coverage.” By contrast, “the reasonableness requirement [in § 6403(b)(2)] by its plain terms is a measure of effort—i.e., the actions taken to achieve a goal—and not of the outcome itself.” As CEA explained in its comments, “[t]he question is not whether the Commission will protect broadcasters”; rather, “[t]he question is whether the Commission is obligated to protect

all

of the existing levels of service without considering the impact on the goal of spectrum clearing.” The Commission agrees with CEA that the answer to that question “is plainly no.”

87. The Commission clarifies, however, that it is not adopting a “balancing approach” that weighs the objective of preserving coverage area and population served against the Spectrum Act's general objective of repurposing spectrum. Rather, the other objectives in the Spectrum Act inform our assessment of the degree of effort required to protect the coverage areas and populations served of broadcast licensees, that is, whether we have satisfied the “all reasonable efforts” mandate. This approach is consistent with the Supreme Court's directive that “[s]tatutory construction . . . is a holistic endeavor” such that “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” By way of example, efforts that would preserve broadcasters' coverage areas and populations served, but would prevent us from repurposing spectrum, would not be “reasonable” in the larger context of the Spectrum Act. The Commission, therefore reject Comcast's view that § 6403(b)(2) requires us to “focus exclusively on preserving the integrity of broadcasters' existing coverage area and population served.”

88. Similarly, by taking into account the other objectives in the Spectrum Act, the Commission is not “pretend[ing] that the word `all' does not exist in the phrase `all reasonable efforts.' ” “All” as used in § 6403(b)(2) modifies “reasonable”; it measures quantity of effort, but does not affect the degree of effort required by the statute. “All” therefore requires only that we make every

reasonable

effort to preserve broadcasters' coverage area. Under our reading of the statute, the Commission could not satisfy its statutory obligation if it undertook only one of several reasonable actions to preserve broadcasters' coverage areas and populations served. “All,” however, has no bearing on whether any particular effort is “reasonable” and thus does not require the Commission to ignore the other objectives of the Spectrum Act when conducting the repacking process.

b. OET-69 and

TVStudy

89. OET Bulletin No. 69, which is titled “Longley-Rice Methodology for Evaluating TV Coverage and Interference,” provides guidance on the implementation and use of the Longley-Rice propagation methodology for evaluating television coverage and interference. The methodology described in OET-69 predicts a television station's coverage area and population served, both of which the Commission must make all reasonable efforts to preserve under the Spectrum Act. OET-69 specifically states that a computer program is necessary to implement the methodology. That computer program takes certain inputs, including population data, geographical terrain data, and data about stations' transmission facilities, and applies the methodology described in OET-69 to generate a station's predicted coverage area and population served. The computer program that implements OET-69 thus produces “output”—or more specifically, a description of a station's predicted coverage area and population served within its noise-limited contour.

90. The Commission will use

TVStudy,

the updated computer program that implements the methodology described In OET Bulletin No. 69, in the incentive auction. As discussed,

TVStudy's

capability to create and use a uniform nationwide grid for analysis of coverage area and population served is essential to the repacking process. In addition, the software previously used to implement OET-69 cannot support the incentive auction because it cannot undertake, in a timely fashion, the volume of interference calculations necessary to ensure that all stations that will remain on the air following the auction are assigned channels in accordance with the provisions of the Spectrum Act. Further, the proposed updates to the input values used in applying the OET-69 methodology allow for a more accurate analysis of each station's coverage area and population served as of the date of the enactment of the Spectrum Act and eliminate the use of input values that are now obsolete. Thus, with one exception that is explained, the Commission adopted the updated input values proposed in the

TVStudy PN

(

Office of Engineering and Technology Releases and Seek Seeks Comment on Updated OET-69 Software,

ET Docket No. 13-26, GN Docket No. 12-268, Public Notice, 28 FCC Rcd 950 (2013)).

2

It finds that using

TVStudy

with updated input values to implement OET-69 will support the unique requirements of the incentive auction while satisfying our statutory obligation to make “all reasonable efforts” to preserve television stations' coverage area and population served as of February 22, 2012. The Commission finds that the Spectrum Act not only permits us to use

TVStudy,

but—because the statute requires the Commission to make all reasonable efforts to preserve broadcast stations' coverage areas and populations served as of February 2012—requires us to update the software and data inputs necessary to implement the methodology set forth in OET-69 to predict coverage as of that date as accurately as possible.

2

Updated versions of

TVStudy

were announced by public notice in April, July, August, and September 2013.

See Office of Engineering and Technology Releases Updated TVStudy Software,

ET Docket No. 13-26, GN Docket No. 12-268, Public Notice, 28 FCC Rcd 5520 (2013); Repacking Data PN, 28 FCC Rcd 10370;

Office of Engineering and Technology Releases Updated TVStudy Software,

ET Docket No. 13-26 and GN Docket No. 12-268, Public Notice, 28 FCC Rcd 12327 (2013);

Office of Engineering and Technology Releases TVStudy Version 1.2.8 and Announces Future Updates Will Be Posted to the Web,

ET Docket No. 13-26 and GN Docket No. 12-268, Public Notice, 28 FCC Rcd 12979 (2013). The most up-to-date version of TVStudy is posted at

http://data.fcc.gov/download/incentive-auctions/OET-69/.

91. The Longley-Rice methodology described in OET-69 divides the area within a digital television station's noise-limited contour into approximately square “grid cells” to evaluate signal strength, or coverage, and any interference. The computer program previously used to implement the OET-69 methodology generates station-specific grid calculations based on each station examined. More specifically, the earlier software creates a new and unique grid for each station centered on the station's transmitting facilities. Signal strength and potential interference from other stations are calculated for each cell in that particular grid. Because each grid is unique to each station, however, no two station grids are typically the same, and signal strength and interference calculations for one station cannot be used to calculate coverage and interference for another station, even where they cover the same or portions of the same geographic area. The cell-level data are not consistent from one station to another. Moreover, the earlier computer software lacks the capability to save grid calculations. Given these two limitations (i.e., the lack of uniform grid cells and the inability to save calculations), the earlier computer software would have to re-create an individual station's grid each and every time it has to analyze a possible channel assignment in the repacking process. In other words, an individual station's grid may have to be re-created thousands of times before a determination is made as to which channel a station may be assigned following the auction.

92. In contrast,

TVStudy

has the capability to apply the OET-69 methodology to calculate signal strength and evaluate interference using a single, common grid of cells common to all television stations. Based on the data derived from the common grid,

TVStudy

can undertake pairwise interference analyses of every station that will

remain on the air after the incentive auction and generate data that identifies combinations of stations that can (or cannot) co-exist on the same channel or adjacent channels. These data are used to generate the constraint files that will be employed in the repacking process. Further, unlike the earlier software, much of the cell-level data produced by

TVStudy

are cached, or saved. Hence, the repacking methodology need not re-create a station's unique grid each time it examines a possible channel assignment, and the numerous interference calculations can be run in a much shorter period of time. These attributes of

TVStudy

(i.e., the common grid and caching) are essential to the timely analysis of feasible channel assignments.

93. The Commission concludes that the statutory language allows the Commission to update the computer software and input values used to implement the OET-69 methodology while adhering to the methodology described in OET Bulletin No. 69. The statutory language is ambiguous, and it is reasonable to read it narrowly. Indeed, the Commission finds unreasonable NAB's interpretation, which would compel the Commission to rely on outdated computer software and data to implement that methodology. Accordingly, the Commission interprets the statutory phrase “methodology described in OET Bulletin No. 69” to refer to the particular procedures for evaluating television coverage and interference that are provided for in that bulletin, not the computer software or input values used to apply that methodology in any given case. The Commission's interpretation is consistent with the common meaning of the word “methodology.” Distinguishing between a “methodology” and the “software” and “inputs” used for applying that methodology also is consistent with the ordinary meaning of the latter words, as well as with common understanding. Courts have recognized similar distinctions between administrative methodologies and the computer programs and data inputs used to apply them. Likewise, evaluating TV coverage and interference using the methodology described in OET-69 requires a computer program and data inputs, but they are tools for applying the evaluation procedure, not the procedure itself.

94. Even though computer software and certain inputs that are necessary to implement OET-69 are referred to in OET-69, the Commission finds they are not part of the OET-69 “methodology.” Examination of OET-69 itself bears out this distinction. OET-69 characterizes the computer program as a tool for applying the Longley-Rice propagation model, explaining that “[a] computer is needed . . . because of the large number of reception points that must be individually examined.” OET-69 also makes clear that the computer program for applying OET-69 is subject to change—for example, it refers to “the computer program now used by the Media Bureau to evaluate applications . . . as well as predecessors of that program,” and to “[t]he Fortran code currently used by the Media Bureau to evaluate new proposals”—and provides instructions on how to use different computer programs to apply the Longley-Rice model. Indeed, OET-69 contemplates that others will utilize their own computer programs to implement the OET-69 methodology and provides suggestions for obtaining information on using the Longley-Rice model in doing so. The Commission's bureaus have used different computer programs to implement OET-69. In contrast, the methodology itself has remained the same through multiple versions of OET Bulletin No. 69 (other than corrections and updated Internet references). The Commission further notes that the rules distinguish between “the procedure set forth in OET Bulletin No. 69” and the inputs for applying it; for example, in evaluating post-digital TV transition allotments, the rules require the use of “the 2000 census population data” when calculating interference pursuant to the methodology in OET-69. Thus, the Commission agrees with CTIA and others that

TVStudy

is merely an updated tool for implementing the methodology in OET-69. Likewise, the updated input values that the Commission adopted are not part of the OET-69 methodology within the meaning of the statute.

95. While NAB argues that the statutory phrase “methodology described in OET Bulletin 69” is “a term of art that was well established in 2012” to include the present software and input values, NAB cannot point to a single instance of the FCC using, let alone defining, that phrase prior to enactment of the Spectrum Act. NAB does identify a number of decisions in which the Commission characterized use of specific Census and terrain data and treatment of “flagged” results as part of a “methodology.” However, only one of those decisions referred specifically to OET-69. In that decision, the Commission did not define or describe the OET-69 “methodology” but rather used the term “methodology” colloquially to refer to inputs associated with application processing. Accordingly, the Commission rejects NAB's argument.

96. In addition to being consistent with the statutory language, our interpretation furthers the statutory requirement to “make all reasonable efforts to preserve, as of the date of enactment of this Act [February 22, 2012], the coverage area and population served of each broadcast television licensee” by allowing us to update the computer program and input values for applying the OET-69 methodology. For example, updated inputs like the 2010 U.S. Census data more accurately reflect the latest population changes, which show an increase in population nationwide of approximately ten percent between 2000 and 2010, as well as changes in population distribution. Use of 2000 Census data, as NAB urges, would preserve television service as of year 2000 rather than as of the date of enactment of the Spectrum Act. Had Congress intended to prevent any updates to the software and input values used to implement the OET-69 methodology, it could have expressly directed the FCC to use the methodology described in OET-69, including the February 6, 2004 version of one of the Commission's computer programs implementing that methodology and the inputs used as of that date. Instead, Congress required “all reasonable efforts” to preserve each station's coverage area and population served as of February 22, 2012, a mandate that necessitates the use of updated software and inputs with greater utility and accuracy. In light of this mandate, the Commission disagrees with NAB that Congress was interested not in “the realities of population growth” but in “reduc[ing] coercive pressure on stations to give up their licenses.” The Commission cannot conclude that Congress intended to require us to maintain and somehow adapt an obsolete computer program that relies on inaccurate data—particularly given the threat that doing so could leave some viewers without television service.

97. The Commission's reading is also consistent with other relevant statutory obligations and with Commission precedent. It has a well-established duty under the Administrative Procedure Act (“APA”) to “analyze . . . new data” when faced with existing data that “are either outdated or inaccurate.” NAB's interpretation of section 6403(b)(2) is in direct conflict with our duty under the APA; it would require us to ignore new Census data despite significant population changes between 2000 and

2010, more accurate and updated terrain data, and corrected technical information. Consistent with its APA and other statutory obligations, the FCC has consistently relied on updated, accurate data and procedures when possible. In the Satellite Home Viewer Improvement Act of 1999 (“SHVIA”), for example, Congress directed the Commission to “take all actions necessary . . . to develop and prescribe by rule a point-to-point predictive model for reliably and presumptively determining the ability of individual locations to receive signals [of Grade B intensity].” In implementing that statutory mandate, the Commission adjusted the Longley-Rice methodology for UHF stations but left VHF calculations essentially unchanged. The DC Circuit upheld that decision, finding that the Commission acted reasonably because its chosen methodology increased the accuracy of the model. NAB tries to distinguish SHVIA on the basis that it expressly requires the Commission to “establish procedures for the continued refinement of the application of the model by the use of additional data as it becomes available”—a provision which the Spectrum Act lacks. The Commission is not persuaded. The underlying purpose of SHVIA was to identify “unserved households” eligible for the rebroadcast of distant network signals—an inherently pro-consumer objective. Similarly, in the Spectrum Act, Congress required us to make “all reasonable efforts” to preserve coverage area and population served as of February 22, 2012—an obligation that depends heavily on having accurate data for that date. The Commission cannot fulfill the statutory mandate using outdated data. The 2000 Census data that NAB advocates using fails to reflect the increase in predicted population served that 85 percent of stations have experienced since that time.

98. NAB also objects that the proposed updates “are unlawful because they do not preserve broadcast licensees' coverage areas and populations served as predicted on February 22, 2012”—predictions which it asserts necessarily depend on calculations pursuant to OET-69, as it was implemented on that date. On the contrary, the Commission read the date in section 6403(b)(2) to modify the preservation mandate, not the reference to OET-69. In other words, we read the statute to require us to preserve the actual coverage areas and populations served by broadcast stations on February 22, 2012, not (as NAB contends) to preserve the coverage areas and populations served as calculated by using the input values and the version of the computer program implementing OET-69 in use by one of the Commission's bureaus on February 22, 2012. Use of the outdated computer program and input values would not fulfill our statutory mandate to preserve the “coverage area and population served” as of February 22, 2012, but rather the service provided long before the Spectrum Act's enactment.

99. The Commission disagrees with NAB that

TVStudy

redefines or reduces the coverage area of a significant number of stations in comparison with the earlier version of the OET-69 computer program. OET took care in designing and developing

TVStudy

to ensure that it faithfully implements the OET-69 methodology, provides results that closely match those of the earlier computer software (notwithstanding updates that improve accuracy), and avoids bias that would systematically reduce broadcast stations' coverage areas and populations served. In support of its position, NAB, for example, predicts that station KMAX-TV in Sacramento, California, would suffer a 15 percent loss in the population served if we use

TVStudy

rather than the earlier OET software. However, OET's analysis using

TVStudy

predicts that KMAX-TV will experience an eight percent increase in population served. Further, OET's analysis using

TVStudy

and the updated inputs adopted in this Order shows that 88 percent of full service stations will experience an increase in population served, while only 12 percent show some decrease.

100. NAB also asserts that

TVStudy

departs from the OET-69 methodology because it considers LPTV stations and TV translators in its evaluation of service and interference analysis. NAB is correct that

TVStudy

has the capability of studying the interference from LPTV and TV translators. However, NAB is incorrect in assuming that that option will be used in the repacking process.

101. In addition, NAB claims OET “failed to conduct any cost-benefit analysis for its proposed changes.” According to NAB, “[t]he proposed changes to OET-69 and the attendant uncertainty w[ill] drive up the costs for broadcast licensees, as they scramble to acquaint themselves with the new methodology, without any countervailing benefit.” That is demonstrably not the case. The benefits of using

TVStudy

clearly outweigh the costs. The use of

TVStudy

and the updated input values is essential to the repacking process and to fulfilling the statutory preservation mandate.

102. Moreover, NAB's criticisms of OET's efforts to provide support for

TVStudy

are baseless. Copies of

TVStudy

have been made available to the public continuously since its original release in February 2013. The

TVStudy

software was released in a form allowing it to be easily installed and run on inexpensive, commonly available consumer computers. While OET has corrected minor errors and improved the functionality of

TVStudy

since its original release, OET has informed the public of these updates by releasing Public Notices, or (as announced in September 2013) through updates on the Commission's Web site. Commission staff have provided and continue to provide ongoing support to users seeking to implement and utilize

TVStudy,

including participating in an online discussion forum (list-serve) open to the public. As the developer of

TVStudy,

OET has provided support to users of the software by responding to inquiries on the listserve. Thus, broadcasters have had ample opportunity to evaluate and familiarize themselves with the updated software and input values. Accordingly, contrary to NAB's claims, there should be no uncertainty associated with the use of

TVStudy.

103. NAB complains that

TVStudy

contains “scores of soft switches,” which contain variables or inputs that can lead to different predictions of coverage area and population served depending on how the switches are set. Most of these switches reflect variables that are not meant to be changed from their default values, were included in the software to maximize flexibility, and have not changed since the original release of

TVStudy.

In the

TVStudy PN,

OET tentatively defined the eight soft switches for the inputs that the Commission adopted. The release of this Order finalizes the variables or inputs associated with the key soft switches. In addition, a Public Notice released by OET concurrently with the Order provides guidance regarding how to set the switches for the remaining variables or inputs.

104. As interested parties continue to work with

TVStudy,

there may be further opportunities for OET to correct minor errors in, or to improve the functionality of, the software, consistent with this Order. Accordingly, OET may continue to make improvements and other changes to

TVStudy

after release of this Order that are necessary and appropriate to correct minor errors or improve functionality, provided such changes are consistent with this Order.

However, the Commission recognizes the importance of finalizing

TVStudy

well in advance of the auction. The Commission directed OET to finalize

TVStudy

no later than the release of the

Procedures PN.

It also directed OET to release a detailed summary of baseline coverage area and population served by each television station to be protected in the repacking process, and to provide an opportunity for additional public input.

105. NAB further argues that it is “arbitrary and capricious” for the Commission to utilize

TVStudy

only in the incentive auction context. According to NAB, if the Commission adopts

TVStudy,

“the result would be that on the very same day that the auction is commenced using [

TVStudy

], a person or entity could file an application for a new television station, yet be required by the Commission to use the [old software].” This assertion lacks merit because the Commission has not yet addressed whether

TVStudy

will be used for purposes other than the repacking process. The Commission notes that, contrary to NAB's assumption, the Commission does not always use the same computer software to implement OET-69. The Commission's bureaus have used

different

software programs to implement OET-69: the Media Bureau has used

tv_process

to process applications for new stations and modifications, OET has used “FLR” for large-scale projects, like the DTV transition, and the International Bureau has used “V-Soft Probe” for international coordination efforts. Each type of software provides a different utility that serves the purposes for which it is used (i.e., licensing, interference and international coordination).

106. NAB and other broadcasters also raise procedural objections that lack merit. Because the Commission adopted

TVStudy

and updated input values in this Order, NAB's claim that the Commission itself must approve the use of

TVStudy

and updated input values is moot. NAB also complains that the comment cycle was too short. The Commission disagrees. The

TVStudy PN

allowed 45 days for comments and an additional 15 days for reply comments. In addition, parties have had additional time to work with the updated software and inputs (and to submit

ex parte

filings) since the comment period closed. While NAB claims that “formal” notice and comment procedures were required instead of Public Notices, the purpose of the APA's notice and comment requirement has been fully satisfied by OET's issuance of the

TVStudy PN

and its publication in the

Federal Register

. The Commission has a robust record on the issues raised in the

TVStudy PN

and it has taken the comments and

ex parte

filings into account in adopting the use of

TVStudy

and the updated values in this Order.

107.

Use of 2010 U.S. Census Data.

Having addressed the broadcasters' statutory and other arguments that the Commission cannot use updated software or input values in applying the OET-69 methodology, the Commission turn to the specific updates to the input values associated with

TVStudy

proposed in the

TVStudy PN.

First, the Commission adopted use of the latest available population data from the 2010 U.S. Census. The old software used population data from the 2000 U.S. Census or earlier. According to the 2010 U.S. Census, the country's population has grown 9.7 percent since the 2000 Census, an increase of 27.3 million people. In addition, the distribution of the population across the country has shifted.

108. NAB argues that the Commission should continue to use 2000 Census data, claiming that its preliminary analysis of

TVStudy

with 2010 population data shows that 14 percent of broadcast licensees will experience a decrease in predicted population served. Though our evaluation of

TVStudy

shows a similar apparent reduction, it also shows that

88

percent of full-service broadcasters will experience an increase in predicted population served. Moreover, while NAB contends that “[t]hese changes are contrary to the Commission's statutory obligation to preserve `population served,'” NAB fails to acknowledge that using 2010 Census data, the most recent population data available, does not result in actual population loss but rather an accurate representation of a broadcast station's population served

as of 2010.

In other words, broadcast stations experiencing a “loss” in predicted population served were, in fact, serving a smaller population on February 22, 2012, than predicted using 2000 Census data because the 2000 Census data is outdated.

109.

Use of One Arc-Second Terrain Elevation Data.

The Commission adopted use of terrain elevation data with a nominal resolution of one arc-second (approximately 30 meters) in most areas of the country. The one arc-second dataset, which is derived from smaller scale topographic maps with more granular elevation data than datasets used by earlier implementations of the OET-69 methodology, will allow for more accurate calculation of the effect of terrain on propagation of television signals. The U.S. Geological Survey (“USGS”) maintains a database with this terrain information, which is updated on a two-month cycle to integrate newly available and improved data. The earlier software used to implement OET-69 relied on a terrain elevation database of three arc-second resolution (approximately 90 meters). The USGS no longer distributes, maintains, or supports a three arc-second database, which also has a history of errors and no mechanism to check the validity of those errors or to correct them. The Commission finds no reason to continue using an obsolete database when there is an expert federal agency that offers up-to-date and more precise terrain data.

110. NAB opposes this change and argues that OET-69 expressly requires use of a three arc-second database. The Commission acknowledges that OET-69 mentions that “the FCC computer program is linked to a terrain elevation database with values every three arc-seconds of latitude and longitude.” This is a descriptive statement about an input database, however, not a prescriptive element of the OET-69 methodology. The Commission does not interpret the description of an input linked to the earlier software as a methodological requirement or a restriction against updating that software to incorporate more precise, accurate, and current data.

111. NAB further maintains that switching from three to one arc-second terrain data will result in predicted losses in population served for 85.1 percent of all broadcast stations—results that NAB argues “simply cannot be squared with Congress's directive to preserve broadcast licensees' service populations, as calculated using the version of OET-69 in effect on February 22, 2012.” NAB did not provide any analytical information to support its calculations. By contrast, our analysis predicts that about one-half of the stations examined will maintain or slightly improve population coverage in comparison to what would have been predicted using the three arc-second terrain data, while one-half are predicted to experience a slight decrease in coverage. Further, staff analysis shows that the results using the one arc-second terrain database are more accurate than those of the three arc-second database.

112.

Antenna Beam Tilt Values.

The Commission adopted use of actual beam tilt data, as those data are specified by the licensees and shown in the Commission's Consolidated Database System (“CDBS”), instead of an across-the-board-assumed downtilt figure. This will allow for a more accurate depiction

of the predicted coverage of, and interference from, each television station. As the

TVStudy PN

recognized, the computer program previously used to implement the OET-69 methodology ignores this input from CDBS and instead uses the same electrical beam tilt for every location, regardless of the actual beam tilt value, which can result in a coverage projection that may effectively “miss” some of the population served. In contrast,

TVStudy

uses the actual amount of electrical downtilt as specified by the broadcast licensees in CDBS, generating a more accurate model of coverage and interference effects and therefore better implementing the methodology in OET-69.

113.

Coordinates, Depression Angles, and Incorrect Data.

Instead of continuing to truncate or round geographic coordinates to the nearest second, as was the practice in earlier versions of software implementing OET-69, the Commission adopted use of full-precision data in coverage and population served projections. By increasing the precision of geographic coordinates,

TVStudy

eliminates rounding errors and provides at least three additional orders of precision. NAB opposes this change because it estimates that it will decrease predicted population served for 37.3 percent of stations and increase predicted population served for 38.1 percent of stations. The Commission finds NAB's argument unpersuasive; there is no technical or computational basis to intentionally reduce the numerical precision of the geographic coordinates used to calculate station coverage and population served as of February 22, 2012. The FCC has a well-established statutory obligation to address known inaccuracies in existing data. Therefore, the Commission adopted the proposal set forth in the

TVStudy PN.

114. For the same reasons, the Commission adopted the

TVStudy PN

proposal to correct the previous software's error in calculating depression angles. Some versions of the computer program previously used to implement OET-69 erroneously calculated depression angles based on the antenna height above ground, rather than the height above mean sea level, which, as the

TVStudy Public Notice

recognized, can cause the radiated power toward the cell under study to be incorrectly calculated. This can result in an incorrect representation of a station's coverage area and population served.

115. The

TVStudy PN

also recognized that there may be instances where the information entered into the FCC's broadcast station database, CDBS, may not be fully accurate. This could lead to incorrect results when the values in that database are used to predict coverage and interference. While OET sought comment on methods to detect and correct inaccurate data, the commenting parties did not address this issue. As discussed, full power and Class A stations will be required to certify the accuracy of the information in CDBS prior to the incentive auction.

116.

Longley-Rice Error Warnings or “Flags” Treatment.

The Commission declined to adopt an alternative treatment of results that are flagged as “unusable or dubious” by the Longley-Rice algorithm underlying the OET-69 methodology. Currently, the assumption is that the cells with such warning flags have coverage, even if surrounding cells are predicted to lack coverage or are subject to interference.

117. The Commission is not persuaded that a change in the underlying assumption of error warnings or “flags” is necessary or appropriate at this time. As noted in the

TVStudy PN,

error warnings have been treated differently depending on context. For example, the presence of an error “flag” is ignored in applying the methodology of OET Bulletin Nos. 72 and 73. That assumption is consistent with the purpose of OET-72 and OET-73, which were designed to identify whether service is available at a

specific location

(household). OET-69 is designed to predict service availability within

a station's coverage area generally,

at points that are not specific households but are intended to be representative of a surrounding area or cell. The assumption of coverage in that context is consistent with the Commission's traditional assumption that service is available throughout a station's coverage area and that broadcasters locate and configure their transmitters to maximize coverage. Thus, despite the fact that the current treatment of error warnings may overestimate coverage areas, the Commission finds no compelling reason to change our treatment of the Longley-Rice error flags at this time. Further, it does not believe that assuming service for cells with error flags will significantly impact our ability to efficiently repack television stations, because this assumption does not increase the coverage area that the Commission must make all reasonable efforts to preserve. Accordingly, the Commission will continue to assume coverage where Longley-Rice error warnings appear.

118. On May 8, 2014, NAB filed a 129-page submission purporting to demonstrate that

TVStudy

“produce[s] flawed results” by comparing

TVStudy

and “the existing OET-69 software.” Despite the fact that OET first publicly released

TVStudy

over 15 months ago, NAB filed on the eve of the Sunshine period, limiting analysis of its submission and depriving interested parties of an opportunity for comment. Nonetheless, analysis indicates that NAB's submission is flawed. First, NAB used the wrong legacy software for its comparison. NAB maintains that “the version of OET-69 in existence on February 22, 2012 (understood to include OET Bulletin 69 and its implementing software)” must be used in the repacking process. NAB does not specify

which

of the legacy software programs for applying the OET-69 methodology in use as of that date it believes must be used. If Congress had intended to require the use of particular software, however, presumably it would have required the use of OET's “FLR” software (which has been publicly available on OET's Web site for years), as the statute refers specifically to OET as the originator of OET-69. Yet NAB apparently used a version of the Media Bureau's application processing software for its comparisons to

TVStudy

. Second, NAB used the wrong input values for its comparison. NAB maintains that it used “the settings OET actually proposes to use.” NAB used such settings selectively, however, skewing the results of its comparison. For example, NAB maintains that use of

TVStudy

results in a loss of population served for approximately 52 percent of stations studied, yet NAB failed to update Census data reflecting an increase in the U.S. population between 2000 and 2010. OET's analysis using the settings OET proposed to use (and that we adopted in this Order) results in a population increase for 85 percent of full power stations. Third, NAB is mistaken that

TVStudy

must be flawed because it does not replicate the results produced by earlier software for applying OET-69. The various legacy software programs used by the Commission's different bureaus do not always produce identical results: Identical results are unnecessary when the software is being used for different purposes.

TVStudy

is not designed to produce the identical results produced by earlier software, although it does produce very similar results.

TVStudy

is configured differently from earlier software so that it can support the repacking process using the most up-to-date and accurate information and technical evaluation capabilities and, therefore, necessarily does not produce exactly the same results.

c. Preserving Coverage Area

119. The Commission adopted the proposal to interpret the statutory term “coverage area” consistent with the definition of “service area” in OET-69 and § 73.622(e) of the Commission's rules with regard to full power stations. Accordingly, the Commission will consider a full power station's coverage area to be the geographic area within its noise- limited F(50,190) contour where the signal strength is predicted to exceed the noise-limited service level. Consistent with the methodology in OET-69, areas within a station's noise-limited contour where its signal strength is below the noise-limited signal strength level, which typically occurs due to terrain obstructions or other propagation factors, will not be considered to be part of the station's coverage area. The coverage areas of full power stations that operate distributed transmission systems (“DTS”) using multiple transmitters will be determined in accordance with the definition of authorized service area and method for determining DTS “authorized service areas” in 47 CFR 73.626(b), (c) and (d) of the rules. Further, it is appropriate to use a DTS station's authorized service area as currently set forth in our rules as the definition of the coverage of such stations. While OET-69 does not specifically address DTS stations, the Commission finds that considering a DTS station's service area to be the combined coverage of its transmitters, as limited by the maximum distances specified in the rules, is consistent with that methodology.

120. As proposed in the

NPRM,

the Commission will make all reasonable efforts to preserve Class A stations' protected contours. The Commission disagrees with commenters who argue that we must protect the entire area covered by Class A stations' signals, i.e., the noise-limited contour within which viewers may be able to receive the signal. Because our rules only protect Class A stations' protected contours from interference, defining their coverage areas as their noise-limited contours would provide these stations with greater interference protection after the repacking process than they enjoy today. In the absence of an explicit statutory directive, the Commission finds no basis to do so. Our approach makes our interpretation of the statutory term “coverage area” consistent for full power and Class A stations, both of which will enjoy protection in the repacking process for the same area that now receives interference protection under our rules.

121. In preserving a station's coverage area, the Commission will replicate that station's contour on its new channel. As noted earlier, OET-69 sets forth the methodology for determining the contours that define the boundaries of a station's coverage area. As proposed in the

NPRM,

the Commission adopted the “equal area” approach for replicating the area within the station's existing contour as closely as possible using the station's existing antenna pattern. Assuming a station maintains its other existing technical parameters, i.e., location, antenna height and antenna pattern, the Commission will permit the station to adjust its power on the new channel until the geographic area within the station's noise-limited or protected contour (depending on whether the station is full power or Class A) is equal to the area within the station's original contour on its pre-auction channel. This approach will allow stations to preserve their existing coverage areas using antennas that are practical to build, so that stations will be able to actually construct their new facilities.

122. The Commission adopted the proposal to protect in the repacking process the existing coverage areas of stations operating under a waiver of the antenna height above average terrain (“HAAT”) or antenna height limits. The Commission will also protect the existing coverage areas of stations that operate under a waiver of effective radiated power (“ERP”) limits. In addition, the Commission will make all reasonable efforts to preserve the existing coverage areas of stations that operate above the HAAT and/or ERP limits pursuant to § 73.622(f)(5), except that such operations will not be protected to the extent that they exceed the maximum power limits specified in the Commission's rules without regard to HAAT. Stations licensed pursuant to a waiver of the applicable ERP limit will be permitted to continue operations at power levels up to the existing authorized ERP.

123. To the extent that a broadcaster participates in the auction through a UHF-to-VHF or a high-VHF-to-low-VHF bid, the Commission will make all reasonable efforts to preserve its coverage area and population served. However, because these stations will be relocating to a different band, the Commission anticipates that it may be difficult for them to maintain their antenna pattern on the new channel. Accordingly, as discussed, the Commission will allow successful UHF-to-VHF and high-VHF-to-low-VHF bidders to request alternative facilities that may result in increases in their coverage areas, as long as the increases do not cause interference to other stations.

124. Although broadcasters generally support our decision to permit stations assigned to new channels to continue to use their existing antenna patterns with power adjustments, the Affiliates Associations contend that the Commission should not consider a station's signal to be receivable at all locations within its noise-limited contour, thereby ignoring terrain losses. They argue that because the effect of terrain on signal reception is the

sine qua non

of the OET-69 model, ignoring terrain losses and assuming that a station's signal is receivable at all locations within its noise-limited contour would eviscerate the statutory requirement to preserve coverage areas using the OET-69 methodology. They acknowledge that there inevitably will be some changes in coverage area due to channel reassignments, but contend that the Commission can only satisfy the preservation mandate in the statute if it limits such changes to no more than 0.5 percent. The Affiliates Associations alternately propose that the Commission allow stations “flexibility in specifying alternative facilities that increase a station's coverage area if that is necessary to fully preserve the coverage area and population served of a station following repacking.”

125. While we agree that the goal of the repacking process should be preservation of stations' pre-repacking coverage areas, the Commission emphasize that, as the Affiliates Associations acknowledge, it may not be physically practical or possible for some stations to build modified facilities that result in less than a 0.5 percent change in the geographic area served within the original contour. Because radio signals propagate differently on different frequencies, the signal of a station reassigned to a different channel will generally not be receivable in precisely the same locations within a station's contour as it was in its original channel. Instead, there may be signal losses due to terrain in different areas within the contour. Such losses are unavoidable, so exact replication of coverage within a station's contour is not always attainable under the laws of physics. The Commission also notes that the Affiliates Associations have mischaracterized the proposal to preserve stations' coverage areas in the repacking process. The Commission is not assuming that “coverage area” includes all of the area within a station's contour (i.e., that a station's signal is receivable at all locations within the contour). Rather, the Commission will adhere to the OET-69 methodology,

which considers variations in signal availability resulting from terrain losses, when determining the “coverage area” and “population served” that must be preserved in the repacking process. Thus, the Commission will not include areas where a signal is not receivable due to terrain losses in the coverage area to be preserved.

126. The Commission declines to adopt the proposals advanced by the Affiliates Associations. First, it does not interpret the Spectrum Act to prohibit anything greater than a

de minimis

change in a station's coverage area. Rather, as discussed, the Commission agrees with T-Mobile that “the reasonableness requirement [in § 6403(b)(2)] by its plain terms is a measure of effort—i.e., the actions taken to achieve a goal—and not of the outcome itself.” Hence, the demand that the outcome of the repacking process be no more than a 0.5 percent change in the geographic area served, finds no support in the statute.

127. Nor does the Spectrum Act require us to expand stations' contours to account for terrain losses. The Commission adopted the “equal area” approach for replicating the area within a station's contour using the station's existing antenna pattern. This approach is designed to allow a station to use its existing facilities, allowing for some adjustments, to serve the same geographic area on the channel to which it is reassigned in the repacking process. The Affiliates Associations support our approach, but seem to demand that we go even further by expanding a station's contour to compensate for terrain losses resulting from propagation differences on the reassigned channel are predicted to reduce the coverage area

within

the contour. While not entirely clear, the Affiliates Associations seem to demand that the Commission preserve the same square kilometers of coverage, not a station's actual coverage area prior to repacking. Such an approach finds no support in the Spectrum Act, which specifically directs us make “all reasonable efforts to

preserve

. . . the coverage area . . . of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69.” Consistent with our approach to preserving population served, the Commission interprets the statute to direct us to make all reasonable efforts to protect the geographic area that a station actually served as of February 22, 2012. This approach, which is consistent with our efforts to replicate coverage areas during the digital transition, is designed to ensure that after the repacking process, broadcasters will continue to reach the same viewers, and that viewers will continue to have access to the same stations. Expanding contours, as the Affiliates Associations' request, would thus be inconsistent with the statute, because it would not maintain the

status quo;

to the contrary, it would expand the geographic area that a station actually serves. The Affiliates Associations' proposal could provide the station with a “windfall” in the form of new viewers or, require us to undertake costly efforts to extend interference protection to areas with no viewers. The Commission does not believe that either of these outcomes was intended by the Spectrum Act.

128. Second, expanding contours in the repacking process is not practical or realistic, because it would compromise the repacking process and, ultimately, the success of the auction. Allowing contour extensions during the repacking process will make it more difficult to repack stations efficiently. The Commission would face the same problem if we were to prohibit any channel reassignment that resulted in anything greater than a

de minimis

change in the geographic area served. Reducing the number of potential channels significantly limits the Commission's flexibility to assign channels in the repacking process, increasing the potential costs of clearing the spectrum and decreasing the likelihood of a successful auction outcome. The Commission interpreted the statute to require that we make all reasonable efforts to preserve each station's coverage area and population served without sacrificing the goal of a successful incentive auction. The Commission adopted a number of measures that will effectively address broadcasters' concerns without compromising the auction. Under these circumstances, the Commission need not adopt the proposals advanced by the Affiliates Associations to meet the statutory mandate.

129. Third, broadcasters' concerns regarding the potential for substantial new terrain losses are exaggerated. The majority of UHF stations will be assigned to channels that are lower in the band than their original channels, because under the 600 MHz Band Plan the Commission will be seeking to repurpose UHF spectrum contiguously from channel 51 down, meaning that stations being reassigned to new channels within the UHF band generally will be assigned to channels lower in the band. Such stations are likely to experience

decreases

rather than increases in coverage lost to terrain within their contours due to the superior propagation characteristics of their lower frequencies.

130. Finally, the Commission adopted a number of measures to effectively address the Affiliates Associations' concerns. For those stations that may experience a loss of coverage due to terrain, it adopted several measures that will allow them to remedy such losses. Specifically, broadcasters will be able to file initial construction permit applications that expand their coverage area by up to one percent, as long as they do not cause new interference to any other station. In addition, if a station is dissatisfied with its new channel assignment due to terrain losses, it may seek alternative transmission facilities on a different channel, provided a channel is available and the alternative facilities meet all existing technical and interference requirements and serve the public interest. Further, if a licensee wishes to provide service to a specific area that had service on its pre-auction channel but lacks service on its new channel, it could use DTS, for example, to provide that coverage. This approach will allow us fulfill our statutory duty to make “all reasonable efforts” to preserve broadcast licensees' coverage area and population served, as required by section 6403(b)(2) of the Spectrum Act.

d. Preserving Population Served

131. As proposed in the

NPRM,

the Commission interprets the statutory term “population served” to mean the persons who reside within a station's coverage area at locations where service is not subject to interference from another station or stations, as specified in OET-69 and § 73.616(e). Commenters do not specifically address the NPRM proposal, although they express views on how the Commission should make all reasonable efforts to preserve each station's population served in the repacking process. The Commission will consider a station's “population served” to be the population within the station's coverage area, as that term is defined above, less any portions of the areas where interference from other stations is present as of February 22, 2012. Also, the Commission adopted Option 2, proposed in the

NPRM,

to fulfill the statutory mandate to preserve “population served” as of February 22, 2012. Thus, it will preserve service to the same specific viewers for each eligible station, and no individual channel reassignment, considered alone, will reduce another station's population served on February 22, 2012 by more than 0.5 percent. This approach is consistent with the standard for evaluating interference from new or

modified television operations in § 73.616(e) of the rules. As noted, the 0.5 percent level is considered to be no interference at integer precision.

132. Option 2 will best fulfill our mandate to make “all reasonable efforts” to preserve broadcast licensees' populations served as of the date of enactment of the Spectrum Act, for the following reasons. First, the Commission agrees with NAB and other broadcasters that § 6403(b)(2) of the Spectrum Act's charge that we “make all reasonable efforts to preserve . . . the population served of each broadcast television licensee” directs us to protect service to the specific viewers who had access to a station's signal as of February 22, 2012. Interpreting the preservation mandate to refer to existing viewers as of this date seems most consistent with the statutory language and legislative history, as well as Commission precedent. The statute's use of the word “preserve” suggests that the goal is to maintain the

status quo,

not to replace some viewers with others. That interpretation is reinforced by Congress's rejection of a bill that would have established a goal of substantial equivalence rather than preservation, as well as another bill that would have required the FCC to preserve “interference levels with respect to [each] licensee's signal” rather than population served. Further, the Commission historically has been concerned with avoiding disruption of service to existing viewers. Thus, while Option 1 would provide greater efficiencies because it takes into account overall reductions in interference that result when broadcast stations relinquish all of their spectrum usage rights, the Commission declined to adopt it because it would not preserve service to existing viewers as of February 22, 2012.

133. Second, Option 2 best satisfies our auction design needs. Specifically, Option 2 can accommodate pairwise interference analyses. Option 1 would require analysis of interference relationships on an aggregate rather than a pairwise basis. While Option 3 permits greater new interference than Option 2 (i.e., two percent per station versus 0.5 percent per station), it is unduly restrictive because it does not allow any “replacement” interference, making repacking less efficient. Accordingly, Option 2 provides the most protection to television stations' existing populations served consistent with our auction design needs.

134. Even though NAB recommends the adoption of Option 2 as the standard for “all reasonable efforts,” it also urges the Commission to cap the amount of total additional interference at one percent, and allow no new interference to stations that are currently experiencing ten percent or more interference within their service areas. According to NAB, these interference caps are necessary because, while an individual station can only cause a maximum addition of 0.5 percent interference under Option 2, “stations repacked during the incentive auction process . . . would likely receive interference from multiple stations” which, in the aggregate, could “lead to significant viewer losses.” Contemporaneously with the release of this Order, OET, and the Wireless, Media, and International Bureaus will be releasing a Public Notice inviting comment on a staff analysis of the potential impact of aggregate interference on television stations as a result of the repacking process. The Commission will defer a decision on NAB's proposal until the record is fully developed on the requested cap. The Commission will resolve the issue in a subsequent Order that will be released no later than the release of the

Comment PN,

and well in advance of the incentive auction.

3. Facilities To Be Protected

135. The Commission concludes that protecting certain facilities in addition to those the statute requires it to protect will serve the public interest. The Commission also explains its decision not to extend protection to certain other categories of facilities.

a. Mandatory Protection of Full Power and Class A Facilities

136. Section 6403(b)(2) of the Spectrum Act directs the Commission, in making any reassignments or reallocations under Section 6403(b)(1)(B), to “make all reasonable efforts to preserve, as of the date of enactment of [the] Act, the coverage area and population served of each broadcast television licensee.” A “broadcast television licensee” is defined as the “licensee of—(A) a full-power television station; or (B) a low-power television station that has been accorded primary status as a Class A television licensee” under Section 73.6001(a) of the Commission's rules. The Commission adopts the tentative conclusion that Section 6403(b)(2) mandates all reasonable efforts to preserve the “coverage area and population served” reflected in full power and Class A facilities (1) licensed as of February 22, 2012, the date of enactment of the Spectrum Act; or (2) for which an application for a license to cover was on file as of February 22, 2012. The Commission also adopts the tentative conclusion that the scope of mandatory protection under Section 6403(b)(2), which is limited to “broadcast television licensees,” defined by the Spectrum Act as full power and Class A stations only, excludes LPTV and TV translator stations. The Commission interprets this mandate to apply to full power and Class A broadcasters that do not participate in the reverse auction and full power and Class A broadcasters that participate in the reverse auction but do not submit a winning bid. The Commission also interprets this statutory mandate to apply to full power and Class A broadcasters that submit a winning bid to move from a UHF to a VHF channel or from a high VHF to a low VHF channel.

137. To ensure a stable, accurate database, and to facilitate the repacking process, all full power and Class A television stations will be required to verify and certify to the accuracy of the information contained in CDBS with respect to their protected facilities. Prior to the start of the incentive auction, the Media Bureau will issue a Public Notice announcing each station's protected facility. All full power and Class A stations will be required to submit a form (to be developed by the Media Bureau following the release of this Order) specifying any changes to the information contained in CDBS and certifying to the accuracy of the information in CDBS or provided on the form for their protected facility. The Commission delegates authority to the Media Bureau to announce by Public Notice the deadline and procedures for filing the form.

138. The Commission concludes that Section 6403(b)(2) requires all reasonable efforts to preserve only facilities that were in operation as of February 22, 2012. The full power and Class A facilities that were in operation as of February 22, 2012 are facilities that were licensed on that date or for which an application for a license to cover an authorized construction permit was on file.

139. The Commission rejects claims that Section 6403(b)(2) mandates protection of facilities authorized in construction permits as of February 22, 2012. While facilities authorized in a construction permit are protected from interference under Commission rules, the grant of a construction permit standing alone does not authorize operation of those facilities.

b. Discretionary Preservation

140. Although the Commission interprets the Spectrum Act to mandate that it protect only facilities that were in

operation as of February 22, 2012, it adopts the tentative conclusion in the

NPRM

that the Spectrum Act does not preclude us from exercising discretion to protect additional facilities beyond this statutory floor. That authority is encompassed within the Commission's broad spectrum management authority under the Communications Act.

141. As set forth more fully below, the Commission concludes that the public interest is best served by extending protection to certain categories of facilities that were not licensed or the subject of a pending license to cover application as of February 22, 2012. More specifically, the Commission will protect: (1) The small number of new full power television stations that were authorized, but not constructed or licensed, as of February 22, 2012; (2) full power facilities authorized in outstanding construction permits issued to effectuate a channel substitution for a licensed station; (3) modified facilities of full power and Class A stations that were authorized by construction permits granted on or before April 5, 2013, the date the Media Bureau issued a freeze on the processing of certain applications; and (4) Class A facilities authorized by construction permits to implement Class A stations' mandated transition to digital operations. Except in very limited circumstances discussed below, the Commission will limit discretionary protection to these categories.

142. The Commission generally will limit its discretionary protection to facilities in the preceding categories that are licensed (which in this Section of the Order encompasses both licensed facilities and those subject to a pending license to cover application), by the Pre-Auction Licensing Deadline to be announced by the Media Bureau. The Commission delegates authority to the Media Bureau to issue a Public Notice specifying the Pre-Auction Licensing Deadline. The Commission anticipates that the Public Notice will give stations at least 90 days prior notice of this deadline.

(i) New Full Power Stations

143. As proposed in the

NPRM,

the Commission will exercise its discretion to protect the new full power television stations that were authorized by construction permits, but not yet licensed, as of February 22, 2012.

(ii) Channel Substitution Construction Permits

144. The Commission will exercise its discretion to protect facilities authorized in construction permits issued to a licensed station to effectuate a substitution of a new channel for its licensed channel (a “channel substitution”) that are licensed by the Pre-Auction Licensing Deadline rather than their facilities licensed on February 22, 2012. The fact that these channel substitution allotments were protected in the Table prior to enactment of the Spectrum Act further weighs in favor of protecting the corresponding authorized facilities.

145. Seven of the channel substitutions the Commission is electing to protect result in a station moving from a VHF to a UHF channel, which will encumber additional UHF spectrum by adding a new station to the band. If any of these stations participates in the reverse auction, it will have the opportunity to relinquish its newly allotted UHF channel through a UHF-to-VHF bid.

146. The Commission will protect channel substitution construction permits only if they are licensed by the Pre-Auction Licensing Deadline. The Commission finds that preserving a facility for the channel licensed and operating on February 22, 2012 (as required by the Spectrum Act) as well as an authorized facility for a different channel that remains unbuilt would limit its repacking flexibility without offering sufficient countervailing public interest benefits.

147. The Commission will protect the substitute channel facilities of former channel 51 licensees if they are licensed by the Pre-Auction Licensing Deadline. Because rulemaking petitions seeking to relocate stations from channel 51 are still permitted to be filed, they are not subject to the Media Bureau's April 5, 2013 freeze on the filing of certain facilities modifications, which is discussed in the following Section. Accordingly, the Commission will not impose the requirement discussed in the next Section that these facilities modifications need to be authorized in a construction permit by April 5, 2013 in order to qualify for protection.

(iii) Facility Modifications

148. The Commission concludes that it will serve the public interest to extend discretionary protection to the facilities of full power and Class A stations authorized in construction permits that were granted on or before April 5, 2013 (the date on which the Media Bureau issued a Public Notice, the

Freeze PN

imposing limitations on the filing and processing of certain applications by full power and Class A television stations in light of the forthcoming auction and the need to plan for the repacking process

See Media Bureau Announces Limitations on the Filing and Processing of Full Power and Class A Television Station Modification Applications, Effective Immediately, and Reminds Stations of Spectrum Act Preservation Mandate,

Public Notice, 28 FCC Rcd 4364 (2013) (

Freeze PN

)), provided that the facilities are licensed by the Pre-Auction Licensing Deadline.

149. Applications that were pending on April 5, 2013 that complied with the filing limitations set forth in the

Freeze PN,

or were amended to comply, as well as later-filed applications that comply with the filing limitations, will continue to be routinely processed by Commission staff. To the extent that such applications are granted, the facilities will be protected in the repacking process, provided they are licensed by the Pre-Auction Licensing Deadline.

150. While the

Freeze PN

remains in effect, the Commission directs the Media Bureau to begin processing facilities modifications and displacement applications that were on file but were not granted by April 5, 2013 and were not amended to comply with the filing limitations set forth in the

Freeze PN.

The Commission emphasizes, however, that any such facilities, even if authorized and subsequently licensed by the Pre-Auction Licensing Deadline, will not be protected in the repacking process. However, the Commission directs the Media Bureau to process these applications, rather than instructing that they be dismissed, to afford as much flexibility to these applicants as possible.

(iv) Class A Television Stations Transitioning to Digital Service

151. As explained in the

NPRM,

Congress authorized the incentive auction in the midst of the Class A television digital transition; the deadline for Class A stations to operate on a digital-only basis is not until September 1, 2015. The Commission will exercise its discretion to protect Class A stations' initial digital facilities that were not initially licensed until after February 22, 2012, including those that were not authorized until after the

Freeze PN,

provided they are licensed by the Pre-Auction Licensing Deadline.

152. In order to qualify for protection, Class A digital facilities must be licensed by the Pre-Auction Licensing Deadline. Class A stations that have not completed the transition to digital service as of that deadline will receive protection only of their licensed analog facilities, to the extent protected in this Order. The Commission clarifies that it is not modifying the deadline for Class A stations to convert to digital service

in this Order. Licensees are free to wait until the September 2015 deadline to complete their digital transition, but will receive repacking protection only for their analog facilities consistent with the provisions of this Order.

(v) Additional Cases

153.

World Trade Center Stations.

The Commission will afford discretionary protection to stations affected by the destruction of the World Trade Center and will not require certain authorized facilities for these stations to be licensed by the Pre-Auction Licensing Deadline. The Commission will permit each of these stations to elect protection of either: (1) Their licensed Empire State Building facilities or (2) facilities at One World Trade Center (1WTC), the primary building of the new World Trade Center complex, that are authorized in a construction permit. The deadline for these stations to elect the facility to be protected in the repacking process is the Pre-Auction Licensing Deadline. To be eligible for protection under the second option, stations must obtain a construction permit for the 1WTC facilities by the Pre-Auction Licensing Deadline. Such facilities, however, are not required to be licensed by the Pre-Auction Licensing Deadline in order to be protected.

154.

Stations Reallocated Pursuant to Section 331 of the Communications Act.

The Commission will exercise its discretion to protect the facilities for new full power television stations on channel 2 at Wilmington, Delaware and channel 3 at Middletown Township, New Jersey that were allotted in 2013 pursuant to a court order. Although the Wilmington station is now licensed, the Middletown Township facility is not. The Commission will not require this station to be licensed by the Pre-Auction Licensing Deadline in order to be protected in the repacking process.

155.

KTNC-TV, Channel 14, Concord, California.

TTBG, the licensee of KTNC-TV, channel 14, Concord, California, constructed and had an application for a license to cover on file for its authorized channel 14 facility prior to February 22, 2012, but was operating at reduced power on that date (and continues to do so) due to its inability to satisfy a condition pertaining to non-interference to land mobile stations. The Commission will exercise its discretion to protect the facilities in TTBG's pending channel 14 license application, even if they are not fully operational and the station has not received a license by the Pre-Auction Licensing Deadline.

156.

KHTV-CD, Los Angeles, California.

The Commission will not protect stations that are eligible for a Class A license but that did not file an application for such license until after February 22, 2012, even if the application is granted before the auction. For the reasons discussed in detail below, however, the Commission makes one exception for KHTV-CD, Los Angeles, California.

c. Non-Final License Revocation or Downgrade Proceedings

157. The Commission clarifies that any licensee of facilities that is eligible for protection in the repacking process as set forth in this Order that is the subject of a non-final license validity proceeding or downgrade order will be protected until the proceeding or order becomes final and non-reviewable. Specifically, this treatment will apply to the facilities of licensees who have been downgraded from Class A to LPTV status, and to the facilities of full power and Class A licensees with expired, cancelled, or revoked licenses.

d. Facilities That Will Not Receive Discretionary Protection

158. The Commission will not exercise its discretion to extend protection in the repacking process beyond the facilities discussed above. Below, the Commission specifically addresses its decision not to afford protection to pending rulemaking petitions to move from a VHF to a UHF channel, out-of-core Class A-Eligible LPTV stations, LPTV and TV translator stations, and special temporary authority and experimental authorizations.

(i) Pending Channel Substitution Rulemaking Petitions

159. Section 6403(g)(1)(B) of the Spectrum Act provides that the Commission “may not” reassign a television licensee from a VHF to a UHF channel from the enactment date of the Spectrum Act until the completion of the incentive auction “unless (i) such reassignment will not decrease the total amount of [UHF] spectrum made available for reallocation . . . or (ii) a request from such licensee for the reassignment was pending at the Commission on May 31, 2011.” The Commission declines to exercise its discretion to protect the facilities requested in pending VHF-to-UHF channel substitution rulemaking requests. This includes the facilities addressed in

Amendment of Section 73.622(i), Post-Transition Table of DTV Allotments, Television Broadcast Stations (Cleveland, Ohio),

Notice of Proposed Rulemaking, 26 FCC Rcd 14280 (Vid. Div. 2011).

160. The Commission disagrees with commenters who assert that Section 6403(g)(1)(B) compels the Commission to process and grant channel substitution rulemaking requests that were pending on May 31, 2011. The statute grants the Commission the discretion to reassign a licensee from VHF to UHF if either of the two statutory conditions in this provision is satisfied, but it does not mandate such reassignment. Having determined that Section 6403(g)(1)(B) does not compel grant of the pending VHF-to-UHF petitions, the Commission directs the Media Bureau to dismiss any of these petitions if issuance of an NPRM would not be appropriate. This would be the case, for example, if the proposed facility would result in an impermissible loss of existing service or the petition fails to make a showing as to why a channel change would serve the public interest. The Commission further directs the Media Bureau to hold in abeyance any remaining petitions or related rulemakings proceedings and to process them once the Media Bureau lifts the filing freezes now in place, unless the petition is withdrawn.

(ii) Out-of-Core Class A-Eligible LPTV Stations

161. With one exception, the Commission will not protect stations that are eligible for a Class A license but that did not file an application for such license until after February 22, 2012, even if the application is granted before the auction. These stations are not entitled to mandatory preservation because their Class A facilities were not licensed or the subject of a pending Class A license application as of February 22, 2012. Moreover, the Commission declines to extend discretionary protection to LPTV stations that has not filed an application for a Class A license as of February 22, 2012. Although the Commission will not protect such stations in the repacking process, it will provide them with an advanced opportunity to locate a new channel. Specifically, if such station obtains a Class A license but is displaced in the repacking process, it may file a displacement application during one of the filing opportunities for alternate channels. The Commission will, however, exercise its discretion to protect one station in this category—KHTV-CD, Los Angeles, California, licensed to Venture Technologies Group, LLC.

(iii) LPTV and TV Translator Stations

162. The Commission declines to extend repacking protection to LPTV and TV translator stations. As discussed

below, the Commission adopts measures to mitigate the potential impact of the auction and repacking process on LPTV and TV translator stations, including adopting special procedures for displaced stations to select a new channel among the limited number of channels that will remain following the repacking process. The Commission will also initiate a rulemaking proceeding after the release of this Order to consider further actions to provide regulatory relief to displaced LPTV and TV translator stations.

163. Protection of LPTV and TV translator stations in the repacking process is not mandated by Section 6403(b)(2). The protection provision applies only to “each broadcast television licensee,” which is defined as the “licensee of—(A) a full-power television station; or (B) a low-power television station that has been accorded primary status as a Class A television licensee” under Section 73.6001(a) of the Commission's rules. There is no basis in the text of section 6403(b)(2) or the pertinent statutory definitions to conclude that low power stations that have not been accorded Class A status are entitled to the protections afforded by Section 6403(b)(2).

164. Section 6403(b)(5) provides that nothing in Section 6403 shall be construed to “alter the spectrum usage rights of low power television stations.” This provision simply clarifies the meaning and scope of Section 6403; it does not limit the Commission's spectrum management authority.

165. The Commission likewise declines to exercise its discretionary authority to protect replacement digital low power TV translator stations authorized pursuant to Section 74.787(a)(5) of the Commission's rules (“digital replacement translators” or “DRTs”). As discussed below, however, in order to mitigate the potential impact of the repacking process on DRTs, the Commission will afford DRT displacement applications priority over other LPTV and TV translator displacement applications in cases of mutual exclusivity. Moreover, in connection with the rulemaking proceeding the Commission intends to initiate relating to the potential displacement of LPTV and TV translator stations, the Commission will consider whether to create a new replacement translator service for stations that experience losses in their pre-auction service areas.

166. Finally, the Commission adopts its proposal in the

NPRM

not to extend interference protection to LPTV or TV translator stations vis-à-vis Class A television stations in the repacking process. Section 336(f)(7)(B) of the Communications Act prevents the Commission from approving a modification of a Class A license “unless the . . . licensee shows” that its proposal would not cause interference to low power television or translator facilities authorized or proposed before “the application for . . . modification of such a license . . . was filed.” The Commission does not interpret this language, which grants LPTV and TV tra

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