MDS and ITFS Two-Way Transmissions

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 21 and 74

[MM Docket No. 97-217; FCC 98-231]

MDS and ITFS Two-Way Transmissions

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this Report and Order (``Order''), the Commission adopts

amendments to its rules to enable Multipoint Distribution Service

(``MDS'') and Instructional Television Fixed Service (``ITFS'')

licensees to engage in fixed two-way transmissions. These rule changes

enhance the flexibility of MDS and ITFS operations through facilitated

use of response stations, use of cellular configurations, use of signal

booster stations with program origination capability, and use of

variable bandwidth (``subchanneling'' or ``superchanneling''). As a

result of these rule changes, any MDS and ITFS frequencies in the 2 GHz

band may be used by licensees, or leased to wireless cable operators,

for broadband data, video or voice transmissions to and/or from

subscribers' premises, promoting the competitive position of the

wireless cable industry, augmenting the educational uses of these

frequencies by ITFS entities, and increasing services to consumers.

DATES: Effective January 25, 1999.

FOR FURTHER INFORMATION CONTACT: Michael J. Jacobs, (202) 418-7066 or

Dave Roberts, (202) 418-1600, Video Services Division, Mass Media

Bureau.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's

Report and Order, MM Docket No. 97-217, adopted September 17, 1998, and

released September 25, 1998. The full text of this Order is available

for inspection and copying during normal business hours in the FCC

Reference Center (Room 239), 1919 M Street, N.W., Washington, D.C., and

also may be purchased from the Commission's copy contractor,

International Transcription Services, Inc., (202) 857-3800, 1231 20th

Street, N.W., Washington, D.C. 20036.

Synopsis of Report and Order on MDS and ITFS Two-Way Transmissions.

I. Introduction

1. This Order is adopted by the Commission after receiving and

evaluating comments and reply comments, including ``permit-but-

disclose'' ex parte comments, filed in response to the Commission's

Notice of Proposed Rulemaking (``NPRM'') in this docket. MDS and ITFS

Two-Way Transmissions, 62 FR 60025, Nov. 6, 1997, as corrected, 62 FR

60750, Nov. 12, 1997. The NPRM was issued after the Commission

initially sought comment on a petition for rulemaking filed by a group

of 111 educators and participants in the wireless cable industry

(collectively, ``Petitioners''), comprised of MDS and ITFS licensees,

wireless cable operators, equipment manufacturers, and industry

consultants and associations. Currently, MDS and ITFS licensees are

authorized to use digital technology in order to increase the number of

usable one-way channels available to them, leased ITFS frequencies and

MDS channels may be used for asymmetrical high speed digital data

applications so long as such usage complies with the Commission's

technical rules and its declaratory ruling on the use of digital

modulation by MDS and ITFS stations (``Digital Declaratory

[[Page 65088]]

Ruling,'' 11 FCC Rcd 18839 (1996)), and MDS licensees have been

permitted to provide two-way service on a limited basis. Response

channels, which currently are allocated in 125 kHz blocks for use in

association with most MDS and ITFS stations, must be individually

licensed under the Commission's existing rules. Prompted by the

petition for rulemaking, the NPRM anticipated that many MDS and ITFS

licensees and wireless cable operators engaging in two-way

transmissions will require more capacity for return paths than is

available through such 125 kHz channels, and recognized that the

individual licensing of such channels is too cumbersome and imposes too

great a financial burden on licensees seeking to implement two-way

wireless services. Instead, the NPRM proposed to implement a system

under which MDS and ITFS licensees would be permitted to utilize all or

part of a 6 MHz channel for return path transmissions from subscriber

premises, to cellularize their transmission systems to take advantage

of spectrally efficient frequency reuse techniques, and to employ

modulation schemes consistent with bandwidths either larger or smaller

than 6 MHz, all while providing incumbent MDS and ITFS licensees

interference protection equivalent to what they currently receive.

2. The comments and reply comments from wireless cable industry

participants generally support the NPRM's proposals, and include a

Joint Statement of Position (``Joint Statement'') supported by several

industry participants in an attempt to reach agreement primarily on

issues related to leasing of excess spectrum capacity by ITFS

licensees. While several commenters express concern over the details of

the proposals advanced in the NPRM and of the Joint Statement, the

comments and reply comments reflect unanimous support in the MDS and

ITFS communities for rules which would enable MDS and ITFS licensees

and wireless cable operators to offer a wide array of new, enhanced

services, including new digital and two-way communications services. As

a result, in this Order we: (1) permit both MDS and ITFS licensees to

provide two-way services on a regular basis; (2) permit increased

flexibility on permissible modulation types; (3) permit increased

flexibility in spectrum use and channelization, including combining

multiple channels to accommodate wider bandwidths, dividing 6 MHz

channels into smaller bandwidths, and channel swapping; (4) adopt a

number of technical parameters to mitigate the potential for

interference among service providers and to ensure interference

protection to existing MDS and ITFS services; (5) simplify and

streamline the licensing process for stations used in cellularized

systems; and (6) modify the ITFS programming requirements in a digital

environment. We believe that the rules that we adopt in this Order will

facilitate the most efficient use of the affected spectrum, enhance the

competitiveness of the wireless cable industry, and provide benefits to

the educational community through the use of two-way services, while

still permitting traditional use of the spectrum, thus giving both MDS

and ITFS licensees the flexibility they need to serve best the public

interest.

II. Technical Changes to Rules

A. Revised Definitions of Service

3. The ITFS/MDS spectrum is used primarily for the provision of

either one-way video service to students, in the ITFS context, or, in

the MDS context, wireless cable service to subscribers, which likewise

historically has constituted primarily the provision of one-way video

services. While our Rules already permit MDS licensees to provide non-

video services, under our current regulatory scheme, MDS operators

typically only provide two-way service to subscribers using telephone

return links or individually licensed subscriber premises stations.

This is an outgrowth of the basic one-way approach to MDS transmission

from which our current rules originated.

4. Changes that we adopt in the Order to MDS and ITFS service

definitions fully incorporate the concept of two-way transmission and

reflect the reorientation of the regulatory approach to a flexible

service, from that of an essentially one-way service. A regulatory

system is created authorizing the use of response station hubs and the

more flexible use of response stations, enabling the two-way operation

of wireless cable systems. Specifically, the definition of a ``response

station'' is amended to indicate that licensees may use all or part of

any of their 6 MHz channels as a response channel. Response stations

will be the means of transmission from a subscriber's premises, and can

use either separate transmitting antennas for return paths or combined

transmitting/receiving antennas. The concept of a response station hub

is added, and these hubs will serve as the collection points for

signals from the response stations in a multipoint-to-point

configuration for upstream signal flow. Thus, response stations would

not need to be licensed individually, and they could operate at lower

power because the response station hubs would be located closer to

subscriber premises than are current transmitter sites. Moreover, the

hubs are expected to improve service reliability and permit greater

frequency reuse than if each subscriber were required to communicate

directly with their associated main transmitter site.

5. We further amend the definition for ``signal booster stations''

to allow such stations to originate transmissions, as well as to relay

transmissions from other stations. Booster stations now may be used to

cellularize wireless cable operations in areas too large to be served

by a single station. High-power boosters are those which operate above

-9 dBW EIRP, while low-power boosters may operate at or below the -9

dBW threshold. Permitting boosters to originate as well as relay

programming will facilitate frequency reuse, cellular configurations,

two-way high speed Internet access and other services. Booster station

signals will receive interference protection within the booster's

service area, but not at receive sites beyond the booster's service

area, and booster stations may not have overlapping service areas. We

also agree with the Joint Statement and with the comments of several

parties that all booster stations should be licensed to the licensee of

the channels used by the booster station.

6. After receiving broad support in the comments and reply comments

to the NPRM, flexible subchannelization (i.e., the division of a

channel of a particular bandwidth into multiple, but not necessarily

equal, channels of smaller bandwidth) will be permitted to allow more

efficient channel reuse within a given service area, and

superchannelization (i.e., the combining of more than one channel into

a single, wider channel) will be allowed and may be used for the

transmission of high data rates and/or the use of spread spectrum

emissions. Superchannels also will be licensed to multiple entities in

many instances, due to the fact that the interleaved, non-contiguous

channels in this band generally are licensed to different entities.

Subchannels and superchannels will be limited to digital transmissions

with fixed uniform power spectral density across the bandwidth, in

order to make possible the use of spectral density analysis as part of

the interference analysis process. However, we are permitting the

maximum possible flexibility for digital subchannelization and

superchannelization. Such flexibility includes: subchannelization and

[[Page 65089]]

superchannelization of 6 MHz and 125 kHz channels; permitting such

techniques both for point-to-multipoint (downstream) and response

channel use; subchannelization of superchannels, e.g., an 18 MHz

superchannel could be redivided into two 9 MHz channels or any other

combination which sums to 18 MHz; division of superchannels into

partially overlapping subchannels which sum to greater than the width

of the superchannel, e.g., an 18 MHz channel subdivided into three

channels each 8 MHz wide, thus producing two overlapping areas of 3 MHz

each; and permitting licensees to use either static (fixed and

unchanging) or dynamic (not fixed and changing) bandwidths at their

stations, so as to optimize the efficiency and speed of information

flow. We will continue to issue individual authorizations to individual

licensees for 6 MHz and 125 kHz channels, and we will not issue

specific authorizations for superchannels or subchannels.

7. Finally, after receiving support from most commenters, we adopt

rules in accordance with the most flexible framework proposed in the

NPRM for use of the 125 kHz channels. Such flexibility includes:

permitting the 125 kHz channels to be used as response channels and/or

for point-to-multipoint transmissions, which promotes greater options

for two-way system design and more efficient use of the spectrum;

allowing licensees to swap 125 kHz channels and removing requirements

that each 125 kHz channel be used solely in conjunction with a

specifically associated 6 MHz channel, which together present

opportunities for licensees to create channels with bandwidths

exceeding 125 kHz; and, as suggested by the Instructional

Telecommunications Foundation, Inc. (Foundation), allowing the content

of those channels to be independent of that transmitted on related 6

MHz channels. For the sake of simplicity and consistency with the MDS/

ITFS database, we also redesignate the 125 kHz channels as the I

channels. In adopting this flexible approach towards the 125 kHz

channels, we deny the request of the Catholic Television Network (CTN)

that we reallocate all of the 125 kHz channels to ITFS and use them

solely for response transmissions, and we also deny the University of

Maryland's request that we mandate that any non-ITFS use of I channels

licensed to an ITFS entity be secondary to ITFS use. Where the I

channels are used for downstream transmissions, they will be afforded

interference protection in the same manner as other point-to-multipoint

MDS and ITFS facilities. An MDS or ITFS licensee or applicant wishing

to use its I channels for downstream transmissions shall apply for such

authority using FCC Form 331, and shall prepare interference showings

and serve them on potentially affected parties.

B. Interference Considerations

8. Spectral Mask. In the Digital Declaratory Ruling, the Commission

waived its rules with respect to out-of-band emissions and permitted

the use of a somewhat relaxed spectral mask for digital transmission

modes. This action was taken because the Commission concluded that the

application of the current analog emission mask to digital emissions

would be unnecessarily restrictive and could increase the cost of

digital equipment while providing no benefit. In addition, the results

of laboratory tests submitted in connection with the Commission's

consideration of this issue demonstrated that a digital station using

the relaxed mask is less likely to cause interference than an analog

station using the existing, more restrictive, mask.

9. As proposed in the NPRM, and subject to slight modifications

based on comments of the General Instrument Corporation (formerly

NextLevel Systems, Inc.) which we believe will have no impact on the

interference environment, we permanently incorporate into the Rules the

digital spectral mask waiver provisions of the Digital Declaratory

Ruling, specifically for main station, high-power booster and response

station transmitters which operate on a single 6 MHz channel; masks

also are specified, albeit with certain further modifications, for sub-

and superchannels, 125 kHz channel stations, and high-power booster

stations transmitting using analog or digital modulation on multiple

non-contiguous channels simultaneously carrying separate signals

(``broadband boosters''). Furthermore, as in the Digital Declaratory

Ruling, all spectral mask calculations involving digital emissions will

use the average power of the emission across its bandwidth, and steps

must be taken to ensure substantially uniform power spectral density

across the bandwidth in use, including constant power per unit of

bandwidth for sub-and superchannels, with 6 MHz as the reference

bandwidth, and continuous energy dispersal during times of no

modulation. We also incorporate into the Rules formulas provided by

Petitioners for consistent spectral mask measurement and

interpretation, and based on comments by CTN and as a result of

technological advances over the past year, we eliminate the exception

proposed in the NPRM to the mask for response stations, which would

have allowed for discrete spurious emissions. No spectral mask

whatsoever will be applicable to low-power booster stations using

analog or digital modulation, but such transmitters will be shut down

if it is established that they are causing harmful interference.

10. Power. As requested by Petitioners, we will permit response

stations to use up to 33 dBW EIRP. While the Commission had proposed in

the NPRM to place a limit of 18 dBW EIRP on response station

transmitters in cellularized systems, and although we continue to be

concerned about interference, we concur with the conclusions of

Petitioners' propagation analysis that the proposed 18 dBW power limit

would adversely impact system range and reliability, thereby increasing

the number of stations needed and increasing system costs. As a

practical matter, however, we do not expect that all, or even most,

response stations will utilize the maximum power permitted. In

addition, while current MDS and ITFS rules limit booster power to 18

dBW EIRP, henceforth we allow boosters to operate up to 33 dBW EIRP,

the maximum power level for MDS and ITFS. The 33 dBW power limit is

predicated on a bandwidth of 6 MHz, and the power limit for stations

using lesser bandwidth must be reduced proportional to that bandwidth.

We also retain frequency tolerance requirements for digital and analog

main station and high-power booster station transmitters, while

declining to impose such requirements for low-power booster and

response station transmitters; retain rules requiring type

certification of main and booster transmitters, and adopt rules

requiring type certification of response station transmitters, subject

to exceptions set forth in the Digital Declaratory Ruling regarding the

use of existing analog equipment for digital emissions; and adopt rules

protecting against excessive radio frequency (``RF'') emissions

exposure from MDS/ITFS return path transmissions, in a manner similar

to the approach that we adopted for LMDS.

11. Interference Protection Criteria. The Commission's current

regulations in ITFS and MDS for interference protection were designed

to minimize the potential for destructive cochannel and adjacent

channel interference between systems located in proximity to each

other. The specific criteria for protection are of two forms, namely,

(1) cochannel and adjacent channel

[[Page 65090]]

desired-to-undesired signal (D/U) ratios and (2) limits on the

magnitude of a station's free space field as measured at the edge of

the station's protected service area. For cochannel interference

protection, an applicant must configure its system so that the signals

from each of its transmitters are at least 45 dB weaker than the

signals of the existing licensee's transmitters within the licensee's

protected service area and/or, in the case of ITFS licensees, at the

licensee's protected receiver sites. For adjacent channel protection,

the ratio must be at least 0 dB. In order to meet the second form of

protection, an applicant generally must be able to demonstrate that the

magnitude of the free space radiated field from each transmitter does

not exceed a particular limit (i.e., a power flux density -73 dBW/

m2) at the boundary of the applicant's service area.

12. As proposed in the NPRM, and as supported by all parties

commenting on this issue, we will apply the existing interference

criteria in essentially unchanged form, and supplement them with

similar new criteria to be applied to hub, booster, and response

stations. Furthermore, because two-way systems will involve large

numbers of transmitters with heavy frequency reuse and simultaneous

operation, a calculation of the combined field produced by the main

station transmitter, all cochannel boosters, and the aggregated power

from cochannel response stations within a system will be utilized to

determine compliance with the interference criteria where these

stations partially or completely share spectrum. These criteria shall

be adjusted to account for the particular bandwidths involved in the

calculations. We also emphasize that where an interfered-with receive

antenna meets the antenna characteristics set forth in our MDS and ITFS

rules, the station causing the harmful interference is responsible for

curing it.

13. Interference Prediction Methodology. In order to predict the

interference potential of response stations in cellularized systems, we

will implement a modified version of the three-step process proposed in

the NPRM, which uses statistical analysis and worst-case assumptions in

deriving theoretical estimations of the locations and characteristics

of individual response stations, because these response stations will

be licensed under blanket authorizations which specify only the

locations of the associated hubs to which the response stations

transmit. This methodology is found in Appendix D to the Order, and is

captioned ``Methods for Predicting Interference from Response Station

Transmitters and to Response Station Hubs and for Supplying Data on

Response Station Systems.'' This sequence of system design, development

and authorization necessitates a radical departure from the customary

process whereby interference calculations are made based on specific

information concerning specific stations at specific locations with

specific operating parameters.

14. In step one, the hub station response service area (``RSA'') is

defined and a grid of points is located within this area representative

of the expected actual distribution of response station transmitters

within the area. Regions within the area are defined so that an

adequate population uniformity exists for purposes of predicting

interference from a distribution of response station transmitters.

While the methodology originally proposed in the NPRM would have

determined population uniformity using a complex formula involving

evaluation of the population density within each ZIP Code within the

planned boundaries of a region, in response to comments filed by Spike

Technologies, Inc. (Spike) and others that this procedure would not

produce results representative of the actual distribution of response

stations, the methodology has been corrected so that interference

analyses will be conducted from the grid points which have the greatest

interference potential, taking into account, both for TDMA and CDMA

systems, all potential victim sites both inside and outside the RSA. In

step two, the technical characteristics of response stations which will

be associated with each point in the RSA grid are identified. One or

more classes of response stations are identified within the RSA and its

regions, with each class being a function of several variables, such as

transmitted power (EIRP), antenna height, frequency, bandwidth, and

maximum number of assumed simultaneously operated response stations in

the regional class; these characteristics and others will be specified

in the response hub application. In response to comments of EDX

Engineering, Inc. (EDX) and others that the originally-proposed

methodology ignored terrain data, each grid point now will be assigned

the highest elevation AMSL of all the geographic area surrounding that

grid point, thus making the theoretical stations assigned to each grid

point much more likely to be representative of the actual interference

potential.

15. The final step in calculating response station interference

would require combining the radiated fields of all response stations of

all classes, regions and RSAs within the primary station's protected

service area. In order to simplify this calculation, the statistical

population uniformity within each region will be used as a basis for

grouping response stations of all classes in proximity at the grid

points laid out within each RSA; multiple classes could share the same

grid points. For each class of response stations assigned to a grid

point, a set of worst-case assumptions will be made concerning the

transmitting antenna radiation pattern, transmitter power (EIRP) and

antenna height. Several complex calculations, including procedures for

checking the initial calculations, combining the radiated field for all

of the transmitters for each class of response station at each grid

point from all RSAs will then be used to evaluate compliance with the

interference criteria. Subsequently, licensees are free, upon

notification to the Commission, to continue adding response station

transmitters within their systems until calculations indicate that

permissible interference values would be exceeded.

16. We also have considered other proposed modifications to the

proposals in the NPRM for predicting interference from response

stations and to hubs, which we believe render the methodology

sufficiently comprehensive and conservative without being overly

protective or stifling of growth. For instance, we agree with CTN and

others who argue that the ``minimum receivable signal'' hub protection

standard proposed in the NPRM would have, in some instances,

overprotected the hub and thus potentially precluded construction of

other stations. Instead, we adopt Petitioners' amended proposal to

protect the hub's noise floor, and to take into account the actual

antenna(s) in use at the hub. However, in adopting the methodology as

modified, we decline to adopt several other proposed modifications,

including: EDX's proposed alternate methodology, in which all response

station transmitters within a defined area would be represented by a

single hypothetical aggregate response station located at the hub site,

and which likely would give erroneous interference calculations for

many two-way system configurations; Spike's suggestion that applicants

should be free to choose any methodology they wish for making

interference calculations, which would have promoted uncertainty and

slowed the evaluation of applications; and Spike's recommendation that

hubs be

[[Page 65091]]

redefined to include transmitting capability, which would add

unnecessary complexity to the interference protection rules and which

is further unnecessary in light of the ability of licensees to

collocate hubs with boosters and main stations.

17. We also decline to adopt the guardband proposal for

interference protection advanced by CTN. CTN contends that interference

could be caused to ITFS receive sites by nearby response stations which

are neither cochannel nor adjacent channel to the channels in use at

the ITFS receive sites, as a result of brute force overload (``BFO'')

to broadband downconverters used at these sites. As a solution to the

potential problem of interference from response stations, including

BFO, CTN proposes that a guardband be used as a buffer between

downstream ITFS operations and upstream operations, with downstream MDS

operations occupying the guardband. CTN argues that a guardband would

have several benefits, such as mooting the need for calculating

response station interference into ITFS receive sites, and confining

the risk of BFO, as well as cochannel and adjacent channel

interference, solely to MDS licensees. While we find CTN's guardband

proposal unduly limiting of system design flexibility, and we also at

this time reject as unduly restrictive CTN's proposal of on-air testing

of response stations within a certain proximity of ITFS receive sites

prior to activation of those response stations, we adopt a slightly

modified version of CTN's proposal that no response station may be

installed until a notification is sent to each ITFS licensee with any

registered receive site within a distance of 1960 feet of the location

of the proposed response station. Moreover, because we agree with CTN

that BFO is a possibility in certain limited circumstances, we will

require that licensees of stations causing interference immediately

commence a full cooperative effort with licensees receiving

interference, to solve the problem as quickly as possible at the

expense of the offending licensee. We emphasize that we will order the

immediate deactivation of part or all of a system if that system is

causing any interference--whether cochannel, adjacent channel or BFO--

and the licensee has not cooperated fully and in a timely manner to

eliminate the interference.

C. Modulation Methods

18. In the Digital Declaratory Ruling, the Commission authorized

the use of QAM and VSB modulation. While the Commission declined to

consider the use of other digital modulation methods in the context of

that proceeding, it stated that it would consider future requests for

declaratory rulings where the requesters submit appropriate data to

demonstrate that other modulation techniques could be used in a manner

that would not interfere with MDS and ITFS analog and digital

operations.

19. As in the Digital Declaratory Ruling, and as supported by the

commenters on this issue, we decline to adopt one or more ``standard''

digital technologies. We retain and add provisions for accommodating

the use of different modulation types. In the NPRM, the Commission

solicited comment on whether there is a basis for concluding that use

of particular digital modulation types by MDS and ITFS stations other

than VSB and QAM would not be prone to interference, based on the

current 45 dB/0 dB protection ratios for cochannel and adjacent channel

interference respectively, i.e. that such modulation formats should be

permitted without requiring test data. For example, one modulation type

may be a subset of VSB and QAM and, therefore, is covered under the

industry tests used to support the Digital Declaratory Ruling. In

response, four parties filed a joint request for declaratory ruling

asking that the Commission permit the use of two additional forms of

digital modulation, CDMA and QPSK, and we are persuaded to permit use

of those modulations on a regular basis at all MDS and ITFS stations.

In addition, because we wish to encourage parties to continue to

identify different digital modulation schemes that could be useful in

MDS and ITFS, we emphasize that we remain open to considering future

requests for declaratory rulings in accordance with the Digital

Declaratory Ruling, upon submission of appropriate data. Finally, in

order to facilitate testing and use of different digital modulations

where possible, we will permit licensees and system operators to use

any digital emission in limited circumstances which we set forth where

interference is unlikely or where all parties potentially affected by

interference have consented to such use, and so long as such emissions

meet spectral mask and uniform power spectral density requirements.

III. Application Processing Issues

20. We set forth a scheme governing the filing and processing of

applications for new or modified response station hubs, boosters or

downstream I Channel operations, that will substantially shift review

of such applications from Commission staff and leave much of the

interference environment to be worked out among licensees. As proposed

in the NPRM, we adopt a rolling, one-day filing window system. While

each applicant will be required to demonstrate protection of existing

or previously proposed facilities, applications filed on the same day

will be granted and the filers left to resolve incompatibilities

amongst themselves with little or no intervention by Commission staff.

Because parties will be unable to offer reliable service without

resolving such conflicts, we believe that the incentive to reach a

resolution will be so great that Commission involvement will be

unnecessary to resolve disputes.

21. Specifically, applications first will be placed on public

notice without prior staff review of interference studies. While the

Commission tentatively rejected in the NPRM Petitioners' proposal that

the applications then would be granted automatically on the 61st day

after that notice, unless a petition to deny was filed or the

Commission notified the applicant prior to that date that a grant would

not be made, the majority of commenters on the subject supported some

type of streamlined process, especially when coupled with a complete

guarantee of protection against interference. Upon review of these

comments, we have been persuaded that failure to adopt an expedited

processing system would be seriously detrimental to the provision of

two-way service, despite the increased burden that such a system places

on licensees to track and monitor applications. Thus, we adopt a

modification of the automatic grant proposal, a certification

procedure, whereby an applicant must certify in its application that it

has completed, served upon potentially affected parties, and submitted

to the Commission's copy contractor all required interference studies

(or consent letters) and engineering showings demonstrating no

interference. Before placing an application on public notice,

Commission staff will review it to ensure that all required

certifications are included, and any application that does not contain

the proper certifications will be dismissed. The application will be

granted in reliance on the certifications on the 61st day after public

notice, unless a petition to deny is filed against it or the Commission

finds in a random audit that the applicant certified falsely. A false

certification also could be grounds for revocation of a license. Though

consistent with similar certification procedures that have been adopted

for other communications

[[Page 65092]]

services, this approach is particularly appropriate for MDS and ITFS,

because the interdependence of those two services in most cases relies

on the parties working together. And, as a safeguard, systems causing

interference must cure it immediately or face shut-down, even if the

station applications had been unopposed.

22. A large number of applications are likely to be filed once the

new rules become effective, and many of the applications submitted at

that time may conflict with others filed simultaneously. Therefore, as

proposed in the NPRM, in order to smooth the transition to the rolling

one-day filing window application processing system, we adopt a special

one-week initial filing window, the opening of which will be announced

by public notice, where all applications filed during this window will

be deemed to have been filed as of the same day. Following the

publication of a public notice announcing the tendering for filing of

applications submitted during that window, applicants will have a

period of 60 days to amend their applications to resolve conflicts.

During this 60-day period, no additional applications may be filed,

affording those who filed during the one-week window an opportunity to

resolve any conflicts without fear that, during the pendency of

settlement discussions, third parties will propose facilities that will

have to be protected if the original applicants amend their

applications. After this initial 60 day period, public notice and

application grant procedures akin to those that we adopt for the

rolling one-day filing windows will be implemented. On the 61st day

after the publication of the second public notice, the rolling one-day

filing window will go into effect. We believe that our adoption of the

one-week initial filing window will lessen the burden on all affected

parties, including the Commission's staff, during the first round of

application filing. We also believe that providing parties with an

initial 60-day period during which they can resolve any apparent

conflicts and then amend their applications without prejudice will

serve to expedite service to the public by allowing parties to resolve

their differences without the need to seek Commission review through

the petition to deny process.

23. In the NPRM, the Commission solicited comment on whether to

adopt a system whereby an applicant, once authorization for service has

been granted, may switch from common carrier to non-common carrier

service and back without seeking subsequent authorization. The

Commission also sought comment on whether operators should be required

to give the Commission notice when they are switching back and forth

between common carrier and non-common carrier service, even if prior

approval is not required. What little comment we received on this

subject was supportive of providing the requested flexibility, and we

adopt rules implementing it, subject to a requirement that licensees

provide the Commission with 30-days advance notice of such changes.

IV. Proposals and Issues Primarily Involving ITFS

24. Under Sec. 74.931 of the Commission's Rules, ITFS stations are

operated by educational organizations and are ``intended primarily to

provide a formal educational and cultural development in aural and

visual form,'' to students enrolled for credit in accredited secondary

schools, colleges and universities. Currently, Sec. 74.931(e)(9)

specifies that an ITFS licensee who leases excess channel capacity to a

wireless cable operator must provide a total average of at least 20

hours per channel per week of ITFS programming on its authorized

channels. ITFS licensees in such lease arrangements also retain the

right to recapture ``an average of an additional 20 hours per channel

per week for simultaneous programming on the number of channels for

which it is authorized.'' In addition, an ITFS licensee may shift its

required educational programming onto fewer than its authorized number

of channels via channel loading or channel mapping. The licensee may

further agree to transmission of recapture time on channels not

authorized to it but which are included in the wireless cable system of

which it is a part.

A. ITFS Programming Requirements

25. In the NPRM, the Commission sought comment on several issues

related to the question of whether to change our ITFS programming

requirements in light of the use of digital technology by ITFS

licensees. It asked whether there should be different rules depending

on whether the wireless cable system employs digital or analog

transmissions, or some combination of both. It further asked whether

our existing program content requirements should be retained or whether

they should be modified. Specifically, the Commission sought comment on

whether data transmission and voice transmission should count toward

the fulfillment of minimum programming requirements, and if they were

to count, how they would be measured. The Commission also welcomed

suggestions on whether education-related upstream transmissions should

be applied towards satisfaction of minimum ITFS programming

requirements, and, if so, how they should be measured for that purpose.

The Joint Statement takes positions on many of these issues. To the

extent that it and its supporters represent an agreement by most of the

parties in the wireless cable industry and MDS and ITFS services, we

have accorded it deference in formulating our policies. Nonetheless,

while we find some its approaches sound, we find some if its provisions

unworthy of adoption.

26. Redefinition of Eligible Content. Commenters unanimously

support the proposal that spectrum usage beyond video programming be

eligible to satisfy ITFS educational usage requirements. We agree that

availability of advanced technologies dictates that it is now time to

accord ITFS licensees increased flexibility in determining which

transmissions qualify as satisfying educational usage requirements, so

long as such transmissions are in furtherance of the educational

mission of an accredited public or private school, college or

university, or other eligible institution (such as certain uses by

health care facilities), offering courses to enrolled students. Such

uses may include downstream or upstream video, data and voice

transmissions. In addition, while heretofore not qualifying to satisfy

educational usage requirements, qualifying uses now may include, but

are not limited to, teacher conferencing, remote test administration,

distribution of reports and assignments, research towards and sharing

works of progress in projects for courses, professional training,

continuing education, and other similar uses. Furthermore, in light of

the myriad of possible uses of the spectrum for courses by accredited

schools, we no longer need a separate rule pertaining to where

transmissions are not to on-campus receive sites.

27. We also will subject ITFS signal booster stations to

educational usage requirements, in conjunction with those to which main

ITFS stations are subject, and unless otherwise specified in the Rules,

a ``channel'' henceforth shall refer to any of the 6 MHz frequency

blocks assigned pursuant to Secs. 21.901(b) and 74.902(a) of the

Commission's Rules. We amend Sec. 74.931 and other pertinent rules to

reflect all of these changes. However, while Hispanic Information and

Telecommunications Network contends that qualifying educational service

should not be

[[Page 65093]]

limited to that offered by accredited institutions, we disagree,

because requiring that a qualified licensee be an accredited

institution provides greater certainty of the integrity of the

licensee's educational function. Thus, we will keep intact our

eligibility requirements of Sec. 74.932(a).

28. Analog Programming Requirements. Commenters who address this

subject unanimously believe that the current programming requirements

should be retained for ITFS licensees solely engaged in transmission of

downstream analog programming. We agree, and we will impose no changes

to programming requirements where licensees solely use analog

transmissions. However, for some commenters there is still discord over

what the extent is of the recapture time requirement. In the NPRM, the

Commission rejected Petitioners' proposed changes to Sec. 74.931(e)

that sought to revise the absolute 20 hours per channel per week

recapture time requirement to provide that the ITFS programming

requirements constitute a total of 40 hours per channel per week,

including both actual programming and recapture time. While Petitioners

and some other commenters argue that the Commission's stance in the

NPRM will deter investment, we believe that the Commission's rejection

in the NPRM of Petitioners' proposed changes to our recapture time

requirements was correct. However, in response to concerns expressed by

BellSouth, we clarify that the Rules do not require that 20 hours

always be reserved without accounting for the amount of recapture

already exercised.

29. Digital Educational Usage Requirements. While CTN insists that

educational usage requirements must be modified to reflect increased

capacity arising from use of digital technology, and argues that a

proportionate increase in instructional usage is needed to prevent the

dilution of the instructional nature of ITFS channels, the overwhelming

majority of commenters on these issues favors retaining the current

minimum educational usage requirements in a digital environment. Some

of these commenters, such as BellSouth, argue that ``there is no direct

correlation between technological advancements and the need for ITFS

programming''; others, such as Wireless One of North Carolina, L.L.C.,

observe that many ITFS licensees are finding it difficult even to

satisfy the existing ITFS minimum educational usage requirements;

several others assume the posture reflected in the Joint Statement,

that while the educational usage requirements should not be changed,

25% of an ITFS licensee's capacity should be immediately available to

the ITFS licensee or subject to recapture (with a minimum of 5% of the

licensee's capacity immediately available); and some others, such as

the San Francisco-San Jose Educator/Operator Consortium, contend that

recapture requirements are inefficient and urge that the Commission

abolish them.

30. Because we seek to maximize the flexibility of educators and

wireless cable operators to design systems which best meet their varied

needs, we will adopt ITFS excess capacity leasing rules which best

promote this flexibility while at the same time safeguarding the

primary educational purpose of the ITFS spectrum allocation. After a

careful review of the comments in this proceeding, we decide that these

goals are best harmonized where digital transmissions are used by

retaining the current 20 hours per channel per week educational usage

requirements, adopting the Joint Statement's proposed absolute

reservation of a minimum of 5% of an ITFS station's licensed capacity

for instructional purposes only, and eliminating requirements setting

aside capacity for ready recapture by ITFS licensees. We emphasize that

the 20 hours per channel per week minimum educational usage requirement

is independent from, but concurrent with, the minimum 5% capacity

reservation; further, the reserved capacity can be devoted to

satisfying minimum educational usage requirements. These complementary

standards are in the public interest because they insure the immediate

devotion of ITFS spectrum to formal educational usage, and the

provision by ITFS licensees of at least as much educational usage as

they provide under the current rules, while providing for expansion of

ITFS service offerings and maximization of spectrum available for

leasing to wireless cable operators. Thus, these standards also serve

the same purposes as the recapture provisions that they supplant.

31. Whether a reservation of 5% of the licensee's capacity is

sufficient to meet the minimum educational usage requirements, let

alone provide for future expansion of service, will depend both on the

digital compression ratio employed by the licensee, and on the

particular form of transmissions utilized by the licensee to meet its

usage requirements; in some cases, an ITFS licensee may need to reserve

more than 5% of its capacity in order to satisfy its educational usage

requirements or to provide room for future expansion of services. We

also emphasize that an ITFS licensee may reserve for itself in excess

capacity lease negotiations more than the minimum required reservation

of capacity, and is free not to lease its excess capacity at all if it

does not wish to do so.

32. Measurement of Educational Usage. In recognition of the

difficulty of measuring compliance with the requirements of 20 hours

per channel per week of educational usage and the 5% minimum capacity

reservation, and in light of the varied forms that ITFS spectral usage

can take, we agree with those parties commenting on this issue that at

least for now, the best course is to rely on the good faith efforts of

ITFS licensees to meet these requirements, subject to potential

Commission audits with the licensee bearing the burden of proof of

compliance. We decline to adopt time-of-day requirements for measuring

educational usage, and in light of changed content requirements and

available service options as a result of this proceeding, we grant

relevant portions of pending petitions for reconsideration of a 1994

Commission decision that only programming transmitted for ``real time''

viewing by students counts towards minimum educational usage

requirements.

B. Channel Loading, Shifting and Swapping

33. It is anticipated that system developers will attempt to

utilize contiguous 6 MHz channels for two-way services in order to

minimize the amount of spectrum that would be lost to the spectral mask

whenever a return path is adjacent to a downlink channel. Furthermore,

entire ITFS channel groups may need to be devoted for return paths.

Thus, in the NPRM, the Commission advanced Petitioners' proposal that

we allow ITFS licensees to satisfy their educational usage requirements

on other channels within the wireless cable system (``channel

loading''), and not mandate that licensees meet these requirements

using at least one of their own channels (``channel shifting''). The

Commission also proposed to allow the trading of channels between

licensees (``channel swapping''), and solicited comment on whether ITFS

licensees should be required to retain one or more channels for

downstream transmissions. The general concepts of channel loading,

shifting and swapping are endorsed by the Joint Statement and supported

by almost all of the commenting parties. With the exception of our

channel loading rules and intra-ITFS channel swaps between licensees

using analog transmissions only, the concepts which we permanently

adopt in the Order apply only to licensees using digital

[[Page 65094]]

transmissions, leasing excess capacity to an operator which uses

digital transmissions, or swapping channels with a licensee which uses

digital transmissions.

34. Channel Loading. The parties commenting on our channel loading

rules unanimously support their retention, and we shall do so. In

response to comments of Petitioners and of BellSouth, we also modify

these rules to eliminate the requirement that each ITFS licensee

engaged in channel mapping or channel loading preserve the ability to

transmit all of its ready recapture time simultaneously on the number

of channels for which it is licensed.

35. Channel Shifting. The overwhelming majority of commenters on

this proposal wholeheartedly support it. While the Joint Statement

supports the proposal so long as the usage is shifted onto channels

licensed to other ITFS entities, we are amending our Rules to permit

maximum flexibility in voluntary channel shifting for an ITFS licensee

which itself uses, or leases excess capacity to a wireless cable

operator which uses, digital transmissions. Such flexibility

encompasses the right of an eligible ITFS licensee to shift its

required educational usage onto any other channel(s) within the same

wireless cable system, regardless of whether licensed to an MDS or ITFS

entity. We hope that the flexibility we accord to ITFS licensees to

lease their channel capacity, along with the maintenance of minimum

ITFS educational usage requirements, also encourages educators to apply

for new ITFS stations and leads to more educational usage.

36. Downstream Channel Reservation. Of the few comments that we

received on this issue, the majority favors a mandatory preservation of

one downstream channel. We are adopting the Joint Statement's proposal,

as modified by comments of Alliance for Higher Education, et al.

(Higher Education Alliance): that each ITFS licensee leasing channels

to be used for return paths shall be required to maintain at least 25%

of its capacity to be used for downstream transmissions both during the

term of the lease and following termination of its leasing arrangement;

and that this preservation need not be over the licensee's own licensed

channels. In order to provide additional safeguards of the ITFS

spectrum allocation, we stipulate further that in the event the leasing

arrangement ends, the wireless cable operator must return to the ITFS

licensee unfettered use of as many 6 MHz channels as are authorized to

the licensee; only 25% of these channels, however, must be devoted to

downstream transmissions.

37. Channel Swapping. The comments that we received unanimously are

in favor of the concept, and most commenters on these issues indicate

full support both for swaps between ITFS channels, as well as between

ITFS and MDS channels. The rules that we adopt allow nearly maximum

flexibility in the types of swaps that may take place. We decline to

adopt proposals limiting the location of response channels, such as a

proposal which the Commission tentatively rejected in the NPRM as

unduly restrictive, which sought to convert MDS channels 1, 2 and 2A to

upstream use only, leaving the rest of the MDS and ITFS spectrum solely

for downstream use. Moreover, because channel swapping is voluntary and

its terms negotiable, we see no need to adopt the proposal of Schwartz,

Woods & Miller (SWM) to require that the wireless cable operator cover

all of the costs of channel swaps. We implement simple procedures for

channel swap applications: Each licensee seeking to swap channels shall

file a pro forma assignment application with the Commission, attaching

an exhibit which clearly specifies that the application is filed

pursuant to a channel swap agreement.

38. Effects on ITFS License Renewal. Several commenters urge that

it is important that we clarify that channel shifting, in particular,

will not constitute a basis for, or be a factor in, a license renewal

proceeding; the Joint Statement also contains a provision to this

effect. This concern arises over possible effects of an ITFS licensee

not providing any educational usage over its own licensed channels,

even if it satisfies its educational usage requirements on other

channels in the same wireless cable system. Because we recognize that

two-way system design may be based largely on the implementation of

channel shifting, and that wireless cable operators and their ITFS

lessors may be deterred from utilizing these efficiencies without

assurances that doing so will not have an adverse effect at the time

the ITFS licensee seeks renewal, we amend Sec. 74.931 to reflect that

the fact that an ITFS licensee utilizes channel shifting, channel

loading or channel mapping will not itself be considered adversely to

the licensee in seeking a license renewal.

C. Autonomy of ITFS Licensees and Agency Role

39. When the Commission solicited comments in preparation for the

NPRM, several of the ITFS parties who commented at that time expressed

concern that the proposed two-way scheme presents threats to the

independence of ITFS licensees and their future ability to use spectrum

capacity for instructional purposes. Some of those concerned commenters

focused on the effect that the proposed rules may have on the

engineering autonomy of ITFS licensees. Concerned commenters also

identified issues relating to possible encroachment upon the financial

autonomy of ITFS licensees by implementation of the proposed two-way

framework. While the Commission, in the NPRM, sought comment on the

effects that cellularization would have on the engineering and

financial autonomy of ITFS licensees, it also acknowledged that any

proposed solutions inherently would implicate the fundamental question

of what degree of oversight the Commission should maintain in

regulating the wireless cable industry and ITFS. The Commission

solicited views on this fundamental question, and on one of its

principal offshoots, the question of what impact the proposed two-way

rules should have on the Commission's requirements regarding excess

capacity lease agreements.

40. The comments that we received in response to the NPRM evince

many of the same concerns expressed by some of the ITFS commenting

parties in earlier rounds of comment, and likewise are met with

opposing comments conveying responses comparable to those previously

conveyed. Some of our decisions in the Order, such as generally

prohibiting involuntary modifications to ITFS stations in a two-way

environment, should help address some of the concerns of ITFS licensees

regarding their autonomy and ability to continue providing service

should they no longer be in a relationship with a wireless cable

operator. However, while we will continue to require certain provisions

in excess capacity leases between ITFS licensees and wireless cable

operators, and likewise will continue to prohibit certain provisions,

we believe generally that ITFS licensees can--and should--in their

negotiations with wireless cable operators arrange for lease terms that

best protect their own individual interests and needs.

41. As a starting point, we reemphasize the Commission's

declaration in the NPRM that cellularization by ITFS licensees is

[[Page 65095]]

permissive only, and not mandatory. In addition, we have decided to

grant all ITFS licensees protected service area (psa) protection, in

response to concerns over coercion such as those expressed by the

Foundation, that otherwise there would be a disparity in interference

protection between ITFS licensees that offer high-speed Internet

service pursuant to a lease with a wireless cable operator, and ITFS

licensees that provide exactly the same service on their own. We also

reaffirm the ability of stand-alone ITFS licensees to provide

communications services that are not specifically educational over

their frequencies, so long as they meet the educational usage

requirements set forth in our Rules.

42. Engineering Autonomy. We agree with the commenters who

recognize that our requirement that each ITFS licensee retain 25% of

its capacity for downstream transmissions will present significant

assistance to ITFS licensees in continuing to provide downstream

educational services. Nevertheless, we believe generally that post-

relationship configuration issues should be arranged by the ITFS

licensee in the course of negotiating the terms of its excess capacity

lease with the wireless cable operator. We further conclude that,

particularly in light of the primary educational function of ITFS

licensees, where an ITFS licensee is not the source of transmissions

over its licensed bandwidth, we will not regard the ITFS licensee as

having legal control over the content of such transmissions. At most,

an ITFS licensee's legal control over content transmitted over its

authorized bandwidth is a contractual matter between the leasing

parties.

43. Financial Autonomy. In the NPRM, the Commission sought comment

on the concerns of several commenters at that stage of the proceeding

that ITFS licensees will be unable to sever their relationship with the

wireless cable operator and acquire the equipment to either continue

cellular operations or return to non-two-way transmissions. While some

commenters such as CTN, the Foundation, and SWM propose various

regulatory solutions to these concerns, we agree with the commenters

who argue that the ITFS licensee should address these concerns itself

in its lease negotiations. Thus, we decline to adopt proposals to

require that two-way wireless cable operators establish a performance

bond or escrow account, with sufficient funds to ensure the

uninterrupted operation of participating ITFS stations for a given

period; or to have transmission systems transfer automatically to the

ownership and control of the ITFS licensee upon termination of the

lease, or upon commencement of a lease term. However, consistent with

current policy, we will require that each excess capacity lease contain

a provision assuring the ITFS licensee's right to purchase the actual

equipment, or equipment comparable to that, used by the ITFS licensee

during the lease for educational purposes. This means, for example,

that if the ITFS licensee was providing educational services during the

lease period utilizing digital transmissions, the wireless cable

operator is not obligated to retain analog transmission equipment for

ITFS licensees seeking to return to traditional downstream analog

transmissions. In addition, as requested by CTN, this required lease

provision applies to dedicated or common equipment used for educational

purposes. Nonetheless, as further indicated by CTN, negotiations

between the parties to the lease still will be required to spell out

the appropriate specific equipment that must be made available.

44. Commission Role. In the NPRM, the Commission described how in

the past, it has adopted rules and procedures to accommodate and

protect what has been viewed as the special needs of educational

institutions and organizations, believing that educational institutions

should be treated differently from commercial entities in many

situations due to limited financial and staff resources. One of these

protections has been required review by the staff of ITFS excess

capacity lease agreements, for overly restrictive provisions affecting

the licensee's rights and obligations and for compliance with the

Commission's leasing policies. The Commission requested comment on

whether parties should continue to be required to file written

agreements governing the ITFS licensee's lease of excess capacity on

its channels.

45. The comments that we received on this issue generally are split

between those who believe that many ITFS licensees are well-funded, and

those who believe that many still have very limited resources. Because

we believe that many examples supporting both viewpoints exist, we find

it still appropriate for us to maintain some degree of oversight

regarding the relations between the wireless cable industry and ITFS,

albeit a limited role which allows for maximum possible flexibility of

the parties in establishing excess capacity lease provisions, while at

the same time ensuring educational use of ITFS and a licensee's ability

to continue uninterrupted in that use should its relationship with the

wireless cable operator terminate. In this regard, we will heed the

prescriptions of the numerous commenters who request that we continue

to review excess capacity leases for provisions overly restrictive of

ITFS licensees and in order to police established safeguards, and

require amendment of noncompliant leases. However, consistent with many

of our decisions in the Order regarding the substance of such leases,

we intend this review to be on a lesser scale than previously, and to

be more deferential to the burdens and benefits which constitute the

agreement between the parties to the leases, and to allowing

flexibility in implementation of two-way services.

46. In the NPRM, the Commission tentatively rejected, but

nonetheless sought comment on, a proposal, advanced by the Foundation,

that the Commission require that two-way digital applications and

interference consents be reviewed by legal and engineering counsel that

do not represent commercial interests, and that these independent

advisors certify that in their professional opinion the submission will

not harm future instructional service. The Commission noted that past

attempts to require all leasing parties to hire separate counsel have

been declined by the Commission, having found this safeguard

unnecessary and relying instead on the staff's review and monitoring of

leases. After reviewing the comments on this issue, we continue to see

no reason to change our position on this issue, and we decline to adopt

the Foundation's proposal.

47. Grandfathering of Excess Capacity Lease Provisions. The Joint

Statement recommends that excess capacity lease agreements that provide

for digital usage and were entered into prior to release of the Order

be ``grandfathered for their duration.'' We seek to ensure a transition

as smooth as possible to two-way operations, and we are persuaded by

commenters such as Higher Education Alliance who describe how

effectively requiring amendment of numerous existing leases could prove

unduly burdensome to ITFS licensees and wireless cable operators who

did not anticipate such changes. However, since the March 31, 1997

release of our Public Notice announcing the filing of the petition for

rulemaking which initiated this proceeding, no party can be heard to

argue that it did not have notice that ITFS/MDS two-operations were

anticipated in the not-too-distant future. Thus, any excess capacity

lease entered into, renewed, or extended after March 31, 1997 is

expected to be brought into compliance immediately

[[Page 65096]]

with all of the rule changes and policies that are adopted here, as is

each new such lease, renewal, or term extension from here onward.

Finally, we emphasize that we will not adjudicate whether the

provisions of any specific lease contemplated digital operations as a

general matter. In the absence of resolution between the parties to the

lease, we believe this issue to be a matter of contract law properly

heard before a state tribunal. In framing our policies towards

grandfathering of certain excess capacity leases, we have considered,

and rejected, SWM's proposal that in order to protect the rights of

incumbent ITFS licenses, the Commission require that leases approved or

submitted under the previous rules ``be amended to make clear that the

wireless cable lessee and the ITFS licensee have together considered

the rule changes adopted and made any appropriate changes to lease

terms, prior to the commencement of commercial operations on the

frequencies using cellularization, sectorization or differing

channelization plans.''

48. Length of Leases. The Joint Statement urges that the Commission

allow excess capacity leases of up to 15 years duration, provided that

any lease extending beyond the term of a licensee's authorization

provides for termination of the lease in the event the Commission

denies the subject station's application for renewal. Virtually all of

the commenters who address this proposal support it, and we are

adopting it. In doing so, we decline to adopt the Foundation's

suggestion of maintaining the 10 year lease limit for downstream-only

digital and analog systems, while allowing a 15 year limit for two-way

systems.

49. Other Lease Requirements. Petitioners urge that the Commission

reverse two policies which, Petitioners assert, were not formed in

rulemaking proceedings: (1) Barring lease provisions that require an

ITFS licensee to assign its remaining obligations under an excess

capacity lease if it chooses to assign its underlying license; and (2)

Rejecting lease provisions which require that an ITFS licensee, seeking

to cease operating its facility during the excess capacity lease term,

provide the wireless cable operator a reasonable opportunity to secure

an eligible ITFS assignee before the license is returned to the

Commission for cancellation. We believe that it is appropriate to

continue our ban of provisions that would require an ITFS licensee to

assign its remaining obligations under an excess capacity lease.

However, henceforth we will allow provisions that would permit a

wireless cable operator to find a qualified ITFS assignee to assume the

license prior to its cancellation, and we set forth guidelines to

govern what constitutes acceptable such provisions.

50. The Joint Statement contains provisions which call for all

excess capacity leases to state that the ITFS licensee ``shall have the

right to use any Internet services offered over the system at no

greater than the lowest prevailing commercial rate and shall have

reasonable access, at rates to be negotiated between the parties, to

other services offered over the system (such as addressability and two-

way capability).'' Because we believe that these are best private

contractual matters between the parties, we decline to implement these

provisions of the Joint Statement.

D. ITFS Call Sign Transmission

51. In the NPRM, the Commission presented Petitioners' arguments

that the burdens of continued enforcement of the ITFS call sign

transmission requirement in a two-way environment will far outweigh the

benefits. The Commission sought comment on the proposed elimination of

Sec. 74.982, and solicited alternative solutions for maintaining the

accountability of ITFS licensees. The few commenters which addressed

this proposal unanimously favored eliminating the call sign

transmission requirement where digital transmissions are utilized. In a

two-way environment, alleviation of interference problems primarily

will be left to the wireless cable operator, because of all the

coordination it must do to make a two-way system function properly. In

recognition of this and the greater efficiency of digital

transmissions, we believe that the burdens embedded in Sec. 74.982,

such as costs, outweigh the benefits of applying the rule to any ITFS

station using any digital transmissions. Thus, any ITFS station using

digital modulation, whether or not in a lease agreement with a wireless

cable operator and whether or not in a two-way system, will be exempt

from the requirements of Sec. 74.982. However, because these costs

would not be prohibitive to ITFS stations using only analog

transmissions, and because the benefits of interference identification

can still be realized economically where transmissions are in analog,

we will retain Sec. 74.982 and apply it to ITFS stations which transmit

only in analog.

V. Final Regulatory Flexibility Analysis (FRFA)

52. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C.

Sec. 603, an Initial Regulatory Flexibility Analysis (IRFA) was

incorporated in the NPRM in this proceeding. The Commission sought

written public comment on the proposals in the NPRM, including on the

IRFA. The Commission's Final Regulatory Flexibility Analysis (FRFA) in

this Order conforms to the RFA, as amended by the Contract With America

Advancement Act of 1996.1

---------------------------------------------------------------------------

\1\ Public Law 104-121, 110 Stat. 847 (1996) (CWAAA); see

generally 5 U.S.C. Secs. 601 et seq. Title II of the CWAAA is the

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

---------------------------------------------------------------------------

A. Need for and Objectives of Action

53. In the Order, we amend parts 1, 21 and 74 of our Rules to

enable MDS and ITFS licensees to provide two-way communication

services. These services will be enhanced through the use of two-way

audio, video and data communications from ``response'' stations, the

use of booster stations with program origination capability in a

cellular configuration designed to create spectrum flexibility through

frequency reuse, and the use of variable bandwidth (``subchanneling''

and ``superchanneling'') to create additional flexibility. We believe

the final rule amendments will facilitate two-way transmission and

other improvements to the MDS and ITFS services.

B. Significant Issues Raised by the Public in Response to the Initial

Analysis

54. No comments were received specifically in response to the IRFA

contained in the NPRM. However, some commenters did raise arguments

concerning the effect that certain of our proposals may have on small

entities.

55. As to whether we should increase educational usage requirements

when ITFS licensees employ digital transmissions, Region IV argued that

greater educational usage requirements would particularly burden small

ITFS entities, by indirectly imposing financial and administrative

burdens before these licensees are in a posture to assume such

responsibilities.

56. With respect to whether we should adopt a rolling one-day

filing window for the submission of two-way MDS and ITFS applications,

the Alliance of MDS Licensees argued that such a system would place an

unbearable burden on the limited resources of incumbents, resulting in

large operators having an advantage over small operators.

C. Description and Number of Small Entities Involved

57. The RFA generally defines ``small entity'' as having the same

meaning as the terms ``small business,'' ``small organization,'' and

``small business

[[Page 65097]]

concern.'' 5 U.S.C. Sec. 601(6). In addition, the term ``small

business'' has the same meaning as the term ``small business concern''

under the Small Business Act.2 A small business concern is

one which: (1) is independently owned and operated; (2) is not dominant

in its field of operation; and (3) satisfies any additional criteria

established by the SBA. Small Business Act, 15 U.S.C. Sec. 632.

---------------------------------------------------------------------------

\2\ 5 U.S.C. Sec. 601(3) (incorporating by reference the

definition of ``small business concern'' in 15 U.S.C. Sec. 632).

Pursuant to 5 U.S.C. Sec. 601(3), the statutory definition of small

business applies unless an agency after consultation with the Office

of Advocacy of the Small Business Administration and after an

opportunity for public comment, establishes one or more definitions

of such term which are appropriate to the activities of the agency

and publishes definitions in the Federal Register.

---------------------------------------------------------------------------

58. MDS: The Commission has defined ``small entity'' for the

auction of MDS as an entity that, together with its affiliates, has

average gross annual revenues that are not more than $40 million for

the preceding three calendar years. 47 CFR 21.961(b)(1). This

definition of a small entity in the context of MDS auctions has been

approved by the SBA. See Amendment of Parts 21 and 74 of the

Commission's Rules With Regard to Filing Procedures in the Multipoint

Distribution Service and in the Instructional Television Fixed Service

and Implementation of Section 309(j) of the Communications Act--

Competitive Bidding, MM Docket No. 94-31 and PP Docket No. 93-253,

Report and Order, 10 FCC Rcd 9589 (1995), 60 FR 36524, Jul. 17, 1995.

The Commission completed its MDS auction in March 1996 for

authorizations in 493 basic trading areas (BTAs). Of 67 winning

bidders, 61 qualified as small entities.3

---------------------------------------------------------------------------

\3\ One of these small entities, O'ahu Wireless Cable, Inc., was

subsequently acquired by GTE Media Ventures, Inc., which did not

qualify as a small entity for purposes of the MDS auction.

---------------------------------------------------------------------------

59. MDS is also heavily encumbered with licensees of stations

authorized prior to the auction. The SBA has developed a definition of

small entities for pay television services, which includes all such

companies generating $11 million or less in annual receipts. 13 CFR

121.201. This definition includes multipoint distribution systems, and

thus applies to MDS licensees and wireless cable operators which did

not participate in the MDS auction. Information available to us

indicates that there are 832 of these licensees and operators that do

not generate revenue in excess of $11 million annually. Therefore, for

purposes of this FRFA, we find that there are approximately 892 small

MDS providers as defined by the SBA and the Commission's auction rules,

and some of these providers may take advantage of our amended rules to

provide two-way MDS.

60. ITFS: There are presently 2032 ITFS licensees. All but 100 of

these licenses are held by educational institutions (these 100 fall in

the MDS category, above). Educational institutions may be included in

the definition of a small entity. See 5 U.S.C. Secs. 601 (3)-(5). ITFS

is a non-pay, non-commercial broadcast service that, depending on SBA

categorization, has, as small entities, entities generating either

$10.5 million or less, or $11.0 million or less, in annual receipts.

See 13 CFR 121.210 (SIC 4833, 4841, and 4899). However, we do not

collect, nor are we aware of other collections of, annual revenue data

for ITFS licensees. Thus, we find that up to 1932 of these educational

institutions are small entities that may take advantage of our amended

rules to provide two-way ITFS.

D. Summary of Projected Reporting, Recordkeeping and Other Compliance

Requirements

61. The Order adopts the following proposals that include

reporting, recordkeeping, and compliance requirements:

62. We required MDS and ITFS licensees employing two-way technology

to attach labels to every subscriber transceiver in a conspicuous

fashion. In addition, MDS and ITFS licensees employing two-way

technology will be required to include a full explanation of the labels

that appear on their transceivers, as well as reference to the

applicable Commission guidelines, in the instruction manuals and other

information accompanying their subscriber transceivers.

63. We required a hub station licensee to formally notify an ITFS

licensee when a response station is being located in the vicinity of

any of the ITFS licensee's receive sites. Specifically, we created a

notification zone with a radius of 1960 feet around each registered

ITFS receive site and we required that, at least 20 days prior to the

activation of any response station within such a zone, the hub station

licensee notify, by certified mail, the appropriate ITFS licensee.

64. In addition to required information contained on new FCC Form

331, we required applicants to submit additional data in specified

formats and on diskettes accompanying the application forms.

65. While we do not ordinarily require applicants for minor changes

to ITFS facilities to prepare interference showings or serve them on

potentially affected parties, we required the preparation and service

of interference analyses by ITFS licensees who seek to use their

associated I channels for downstream transmissions.

66. We will accept applications for MDS and ITFS response stations

hubs or boosters via a rolling, one-day filing window. Each applicant

will have to provide interference protection to all facilities existing

or proposed prior to the filing of its application, but its application

will take precedence over all subsequently filed applications.

Applicants will be required to file their applications with all of

their interference analyses, in both hard copy and on disk.

67. Applicants for two-way facilities will be required to certify

that they have met all requirements regarding interference protection

to existing and prior proposed facilities. The applicant will also be

required to certify that it has served all potentially affected parties

with copies of its application, and with its engineering analysis

supporting its interference compliance claim.

E. Steps Taken to Minimize Significant Economic Impact on Small

Entities, and Significant Alternatives Considered

68. The following steps were taken in the Order to minimize the

significant economic impact on small entities:

69. The rule changes adopted in the Order to allow two-way

operations for MDS and ITFS will simplify our licensing system and

provide greater flexibility in the use of the allotted spectrum to

licensees. It is expected that such changes will further eliminate

market entry barriers for small entities.

70. By allowing for subchannelization, small entity licensees will

be able to respond to the demands of the market and create an unlimited

number of channels to carry their current and future communications

needs. Allowing superchannelization will permit small entity licensees

to combine their spectrum with other small entity licensees and create

larger systems to meet their particular operations and to operate at

greater speeds.

71. To permit small entity ITFS licensees with limited resources

adequate time to evaluate a two-way applicant's proposed service plan,

we adopted a certification procedure whereby applicants are required to

certify that they have met all requirements regarding interference

protection to existing and prior proposed facilities. The applicant

will also be required to certify that it has served all potentially

affected parties

[[Page 65098]]

with copies of its application and with its engineering analysis

supporting its interference compliance claim.

72. In an effort to minimize the impact of our new rules on

educational ITFS licensees, many of whom are small entities, we

determined that restricting ITFS eligible use to the downstream video/

audio paradigm would preclude flexibility in service offerings for an

ITFS licensee which leases excess channel capacity. We provided

educational entities with additional flexibility to define what ITFS

usage they regard as educational, in an effort to permit such entities

to further their educational mission. We did not expand our minimum

educational usage requirement for digital ITFS transmissions, and we

added a requirement that 5 percent of an ITFS station's capacity be set

aside for instructional purposes only.

73. The following significant alternatives were considered in the

Order:

74. We declined to adopt CTN's suggestion that greater suppression

of spurious emissions is needed on the order of -60 dB for response

stations operating at +48 dBm, up to -75 dB for response stations

operating at +63 dBm. We found that modifications made to the spectral

mask for response stations would completely eliminate the requirements

that were proposed for such emissions.

75. We did not adopt NextLevel's suggestion that a maximum

suppression limit be placed on digital emitters, which would

effectively remove the out-of-band attenuation requirements for power

levels below a certain minimum. We found that such a relaxation of out-

of-band limits, in the context of a cellularized CDMA system, could

result in an adverse impact on the interference environment because,

unlike other services, hundreds or thousands of low power emitters may

be transmitting simultaneously and the combined effects of their out-

of-band emissions could be significant.

76. In the Order, we adopted a Methodology for calculating the

interference potential of response stations. We rejected CTN's request

to protect hub receivers only to a distance of 35 miles and make them

secondary beyond that distance. We concluded that such a step would

render hubs extremely susceptible to interference and seriously degrade

the communications capabilities and reliabilities within the hub's RSA.

We did not adopt EDX Engineering's alternative to Petitioners' response

station interference Methodology because, for many two-way system

configurations, EDX's interference calculations will inevitably give

erroneous results, a shortcoming that was conceded by EDX itself. We

also did not permit applicants to choose any methodology they wish for

making interference calculations, as we found that this would

drastically slow the evaluation of applications and almost certainly

result in many Petitions to Deny, as licensees and applicants struggled

to understand the differing and potentially incompatible assumptions

and calculations incorporated into the various methodologies.

77. We also declined to adopt Spike's recommendation that hub

stations be redefined to include transmitting capability. We found that

this was not necessary because booster and primary stations may be co-

located with hub stations to provide transmission capability, and

permitting hubs to also transmit would simply add redundancy and

unnecessary complexity to the interference protection requirements of

the rules.

78. We denied CTN's request that guardbands be established

separating upstream (response station) transmissions from downstream

ITFS transmissions. We determined that CTN's first proposal, involving

the creation of 24 MHz-wide guardbands, could result in partially or

completely eliminating many MHz of potentially useful upstream spectrum

on the speculative assumption that such action was necessary to protect

ITFS receive sites from interference. We also declined to adopt CTN's

subsequent proposals, involving 6 MHz guardbands, believing that it was

not the case that the proposed response station interference

Methodology is ``unduly complex'' and will be ineffective in

determining interference when the potential victim ITFS receive site is

within a hub station's RSA.

79. We did not adopt CTN's request for mandatory response station

testing, as we found that it would impose an unnecessary burden on two-

way licensees.

80. We denied CTN's request to reallocate all of the 125 kHz

channels to ITFS and to use them solely for response transmissions. We

found that reallocation and the complications associated with that is

not necessary, and that allowing the I channels to be used for point-

to-multipoint transmissions promotes greater options for two-way system

design and more efficient use of the spectrum. For the same reasons, we

declined to adopt CTN's suggestion that we render low power boosters

secondary, and we also declined to adopt Maryland's request that we

mandate that any non-ITFS use of I channels licensed to an ITFS entity

be secondary to ITFS use.

81. We rejected the automatic grant proposal made by the

Petitioners for granting without review any unopposed two-way license

application after a 60-day comment period. We also did not adopt the

proposal specified in the NPRM to set up a system whereby the staff

would fully review the filed applications and issue a grant or denial.

Instead, we adopted a certification procedure whereby applicants

certify that they have met the requirements regarding interference

protection to existing and prior proposed facilities and have served

copies of their applications on all affected parties. We determined

that this approach was needed to facilitate two-way service to the

public, and that without it, two-way service by MDS operators and/or

ITFS licensees may not become a reality. The certification requirement

would also protect the interests of ITFS licensees, many of whom do not

have the time or resources to evaluate a two-way applicant's proposed

service plan.

82. In the Order, we determined that parties will have 60 days from

the date of the public notice to file petitions to deny against two-way

applications. We decided that, due to the complex nature of the

engineering to be filed, a 60 day petition to deny period is more

reasonable that the usual 30 day period.

83. We did not adopt HITN's suggestion that we eliminate our rule

that limits eligible ITFS educational service providers to accredited

institutions. We found that the primary purpose of ITFS is, and always

has been, to meet the needs of students enrolled in courses of formal

instruction. Furthermore, we found that accredited schools have been

the intended users of ITFS since the origin of the service.

84. We decided to subject ITFS high power booster stations to

educational usage requirements, separate from those to which main ITFS

stations are subject. We determined, however, not to subject ITFS

response stations or response station hubs to educational usage

requirements, because the ITFS licensee has no control over which

upstream transmissions would qualify to satisfy the requirements.

85. We declined to adopt time-of-day requirements for measuring

educational usage, in order to provide ITFS licensees with the maximum

flexibility to determine which uses of their spectrum enhance their

formal educational mission.

[[Page 65099]]

86. In the Order, we retained two different but complementary

requirements of ITFS spectral usage: a minimum of 20 hours per channel

per week for educational usage, and a minimum reservation of 5% of a

licensee's capacity that it may not lease. We determined that both

would be difficult to measure in light of the varied forms that such

usage can take. We decided that the best course would be to rely on the

good faith efforts of ITFS licensees to meet these requirements, and we

did not institute any new, formal proof of compliance reporting

submissions in this area.

F. Report to Congress

87. The Commission will send a copy of the Order, including this

FRFA, in a report to be sent to Congress pursuant to the Small Business

Regulatory Enforcement Fairness Act of 1996. See 5 USC

Sec. 801(a)(1)(A). In addition, the Commission will send a copy of the

Order, including the FRFA, to the Chief Counsel for Advocacy of the

Small Business Administration. A copy of the Order and FRFA (or

summaries thereof) will also be published in the Federal Register. See

5 USC Sec. 604(b).

VI. Procedural Matters

88. Accordingly, it is ordered that, pursuant to the authority

contained in Sections 4(i) and (j), 301, 303(f), 303(g), 303(h),

303(j), 303(r), and 308(b) of the Communications Act of 1934, as

amended, 47 USC Secs. 154(i), 154(j), 301, 303(f), 303(g), 303(h),

303(j), 303(r), and 308(b), this Order is adopted, and parts 1, 21, and

74 of the Commission's Rules, 47 CFR 1, 21, and 74, are amended as set

forth below.

89. It is further ordered that the Petition of Wireless Cable Ass'n

Int'l for Reconsideration and Clarification, MM Docket No. 93-106

(filed August 12, 1994), and Petition of Alliance for Higher Education,

et al., MM Docket No. 93-106 (filed August 5, 1994), are granted to the

extent described in the Order at note 230.

90. The action contained in the Order has been analyzed with

respect to the Paperwork Reduction Act of 1995 and found to impose new

or modified reporting and recordkeeping requirements or burdens on the

public. Implementation of these new or modified reporting and

recordkeeping requirements will be subject to approval by the Office of

Management and Budget as prescribed by the Act. The new or modified

paperwork requirements contained in this Order (which are subject to

approval by the Office of Management and Budget) will go into effect

upon OMB approval.

List of Subjects

47 CFR Part 1

Environmental impact statements.

47 CFR Part 21

Communications common carriers, Communications equipment, Reporting

and recordkeeping requirements, Television.

47 CFR Part 74

Communications equipment, Education, Reporting and recordkeeping

requirements, Television.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Parts 1, 21 and 74 of Title 47 of the Code of Federal Regulations

are amended as follows:

PART 1--PRACTICE AND PROCEDURE

1. The authority for part 1 continues to read as follows:

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),

155, 225, and 303(r).

2. In Sec. 1.1307, paragraph (b)(1), Table 1, right column is

amended by adding the entry regarding MDS licensees directly following

the existing reference to Multipoint Distribution Service building-

mounted antennas, and by adding the entry regarding ITFS licensees

directly following the existing reference to part 74, subpart I

stations, to read as follows:

Sec. 1.1307 Actions that may have a significant environmental effect,

for which Environmental Assessments (EAs) must be prepared.

* * * * *

(b) * * *

(1) * * *

Table 1.--Transmitters, Facilities and Operations Subject To Routine

Environmental Evaluation

------------------------------------------------------------------------

Service (title 47 CFR rule

part) Evaluation required if--

------------------------------------------------------------------------

* * * * * * *

Multipoint Distribution * * *

Service (subpart K of part

21).

MDS licensees are required to attach a

label to subscriber transceiver or

transverter antennas that:

(1) provides adequate notice regarding

potential radiofrequency safety

hazards, e.g., information regarding

the safe minimum separation distance

required between users and

transceiver antennas; and

(2) references the applicable FCC-

adopted limits for radiofrequency

exposure specified in Sec. 1.1310.

* * * * * * *

Experimental, auxiliary, and * * *

special broadcast and other

program distributional

services (part 74).

ITFS licensees are required to attach a

label to subscriber transceiver or

transverter antennas that:

(1) provides adequate notice regarding

potential radiofrequency safety

hazards, e.g., information regarding

the safe minimum separation distance

required between users and

transceiver antennas; and

(2) references the applicable FCC-

adopted limits for radiofrequency

exposure specified in Sec. 1.1310.

* * * * * * *

------------------------------------------------------------------------

[[Page 65100]]

PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES

3. The authority for part 21 continues to read as follows:

Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313,

403, 404, 410, 602, 48 Stat. as amended, 1064, 1066, 1070-1073,

1076, 1077, 1080, 1082, 1083, 1087, 1094, 1098, 1102; 47 U.S.C. 151,

154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602; 47

U.S.C. 552, 554.

4. In Sec. 21.2, the following definitions are added in

alphabetical order, to read as follows:

Sec. 21.2 Definitions.

* * * * *

Booster service area. A geographic area to be designated by an

applicant for a booster station, within which the booster station shall

be entitled to protection against interference as set forth in this

part. The booster service area must be specified by the applicant so as

to not overlap the booster service area of any other booster authorized

to or proposed by the applicant. However, a booster station may provide

service to receive sites outside of its booster service area, at the

licensee's risk of interference.

* * * * *

Channel. Unless otherwise specified, a channel under this part

shall refer to a 6 MHz frequency block assigned pursuant to

Secs. 21.901(b) or 74.902(a) of this chapter.

* * * * *

Response station hub. A fixed facility licensed to an MDS licensee,

and operated by an MDS licensee or the lessee of an MDS facility, for

the reception of information transmitted by one or more MDS response

stations that utilize digital modulation with uniform power spectral

density. A response station hub licensed under this part may share

facilities with other MDS response station hubs, ITFS response station

hubs authorized pursuant to Sec. 74.939 of this chapter, MDS signal

booster stations, ITFS signal booster stations, MDS stations, and/or

ITFS stations.

Response station hub license. A blanket license authorizing the

operation of a single response station hub at a specific location and

the operation of a specified number of associated digital response

stations of one or more classes at unspecified locations within one or

more regions of the response service area.

Sectorization. The use of an antenna system at an MDS station,

booster station and/or response station hub that is capable of

simultaneously transmitting multiple signals over the same frequencies

to different portions of the service area and/or simultaneously

receiving multiple signals over the same frequencies from different

portions of the service area.

* * * * *

4a. In Sec. 21.2, the following definitions, in alphabetical order,

are revised to read as follows:

Multichannel Multipoint Distribution Service (MMDS). Those

Multipoint Distribution Service Channels that use the frequency band

2596 MHz to 2644 MHz and associated 125 kHz channels.

Multipoint Distribution Service (MDS). A domestic public radio

service rendered on microwave frequencies from one or more fixed

stations transmitting to multiple receiving facilities located at fixed

points. MDS also may encompass transmissions from response stations to

response station hubs or associated fixed stations.

Multipoint Distribution Service response station. A fixed station

operated by an MDS licensee, the lessee of MDS channel capacity or a

subscriber of either to communicate with a response station hub or

associated MDS station. A response station under this part may share

facilities with other MDS response stations and/or one or more

Instructional Television Fixed Service (ITFS) response stations

authorized pursuant to Sec. 74.939 of this chapter or Sec. 74.940 of

this chapter.

* * * * *

Signal Booster Station. An MDS station licensed for use in

accordance with Sec. 21.913 that operates on one or more MDS channels.

Signal booster stations are intended to augment service as part of a

distributed transmission system where signal booster stations

retransmit the signals of one or more MDS stations and/or originate

transmissions on MDS channels. A signal booster station licensed under

this part may share facilities with other MDS signal booster stations,

ITFS signal booster stations authorized pursuant to Sec. 74.985 of this

chapter, MDS response station hubs and/or ITFS response station hubs.

* * * * *

5. In Sec. 21.11, paragraphs (f) and (g) are redesignated as

paragraphs (e) and (f), respectively, and the section heading,

paragraphs (a) and (d), and newly redesignated paragraph (e) are

revised, to read as follows:

Sec. 21.11 Miscellaneous forms.

(a) Licensee qualifications. FCC Form 430 (``Licensee Qualification

Report'') must be filed annually, no later than March 31 for the end of

the preceding calendar year, unless the licensee operates solely on a

common carrier basis and service was not offered at any time during the

preceding year. Each annual filing must include all changes of

information required by FCC Form 430 that occurred during the preceding

year. In those cases in which there has been no change in any of the

required information, the applicant or licensee, in lieu of submitting

a new form, may so notify the Commission by letter.

* * * * *

(d) Assignment of license. FCC Form 702 (``Application for Consent

to Assignment of Radio Station Construction Authorization or License

(for Stations in Services Other than Broadcast)'') must be submitted to

assign voluntarily (as by, for example, contract or other agreement) or

involuntarily (as by, for example, death, bankruptcy, or legal

disability) the station license or conditional license. In the case of

involuntary assignment, the application must be filed within 30 days of

the event causing the assignment. FCC Form 702 also must be used for

nonsubstantial (pro forma) assignments. In addition, FCC Form 430 must

be submitted by the proposed assignee unless such assignee has a

current and substantially accurate report on file with the Commission.

Whenever a group of station licenses or conditional licenses in the

same radio service is to be assigned to a single assignee, a single

``blanket'' application may be filed to cover the entire group, if the

application identifies each station by call sign and station location

and if two copies are provided for each station affected. The

assignment must be completed within 45 days from the date of

authorization. Upon consummation of an approved assignment, the

Commission must be notified by letter of the date of consummation

within 10 days of its occurrence.

(e) Transfer of control of corporation holding a conditional

license or license. FCC Form 704 (``Application for Consent to Transfer

of Control'') must be submitted in order to voluntarily or

involuntarily transfer control (de jure or de facto) of a corporation

holding any conditional licenses or licenses. In the case of

involuntary transfer of control, the application must be filed within

30 days of the event causing the transfer of control. FCC Form 704 also

must be used for nonsubstantial (pro forma) transfers of control. In

addition, FCC Form 430 must be submitted by the proposed transferee

unless such transferee has a current and substantially accurate report

on file with the Commission. Whenever control of a corporation holding

a group of station licenses or conditional licenses in the

[[Page 65101]]

same radio service is to be transferred to a single transferee, a

single ``blanket'' application may be filed to cover the entire

transfer, if the application identifies each station by call sign and

station location and if two copies are provided for each station

affected. The transfer must be completed within 45 days from the date

of authorization. Upon consummation of an approved transfer, the

Commission must be notified by letter of the date of consummation

within 10 days of its occurrence.

* * * * *

6. In Sec. 21.27, paragraph (d) is added, to read as follows:

Sec. 21.27 Public notice period.

* * * * *

(d) Notwithstanding any other provisions of this part, effective as

of September 17, 1998, there shall be one one-week window, at such time

as the Commission shall announce by public notice, for the filing of

applications for high-power signal booster station, response station

hub and I channels point-to-multipoint transmissions licenses, during

which all applications shall be deemed to have been filed as of the

same day for purposes of Secs. 21.909, 21.913 and 74.939(l) of this

chapter. Following the publication of a public notice announcing the

tendering for filing of applications submitted during that window,

applicants shall have a period of sixty (60) days to amend their

applications, provided such amendments do not result in any increase in

interference to any previously proposed or authorized station, or to

facilities proposed during the window, absent consent of the applicant

for or conditional licensee or licensee of the station that would

receive such interference. At the conclusion of that sixty (60) day

period, the Commission shall publish a public notice announcing the

acceptance for filing of all applications submitted during the initial

window, as amended during the sixty (60) day period. All petitions to

deny such applications must be filed within sixty (60) days of such

second public notice. On the sixty-first (61st) day after the

publication of such second public notice, applications for new or

modified response station hub, booster station and I channels point-to-

multipoint transmissions licenses may be filed and will be processed in

accordance with the provisions of Secs. 21.909, 21.913 and 74.939(l) of

this chapter. Notwithstanding Sec. 21.31, each application submitted

during the initial window shall be granted on the sixty-first (61st)

day after the Commission shall have given such public notice of its

acceptance for filing, unless prior to such date either a party in

interest timely files a formal petition to deny or for other relief

pursuant to Sec. 21.30(a), or the Commission notifies the applicant

that its application will not be granted. Where an application is

granted pursuant to the provisions of this paragraph, the conditional

licensee or licensee shall maintain a copy of the application at the

transmitter site or response station hub until such time as the

Commission issues a license.

7. In Sec. 21.30, paragraph (a)(4) is revised to read as follows:

Sec. 21.30 Opposition to applications.

(a) * * *

(4) Except as provided in Sec. 21.902(i)(6) regarding Instructional

Television Fixed Service licensees and conditional licensees, in

Sec. 21.909 regarding MDS response station hubs and in Sec. 21.913

regarding MDS booster stations, be filed within thirty (30) days after

the date of public notice announcing the acceptance for filing of any

such application or major amendment thereto, or identifying the

tentative selectee of a random selection proceeding in the Multichannel

Multipoint Distribution Service or for Multipoint Distribution Service

H-channel stations (unless the Commission otherwise extends the filing

deadline); and

* * * * *

8. In Sec. 21.31, paragraph (e)(6)(iv) is revised to read as

follows:

Sec. 21.31 Mutually exclusive applications.

* * * * *

(e) * * *

(6) * * *

(iv) The change of status by an MDS applicant from common carrier

to non-common carrier, from non-common carrier to common carrier, or

from common carrier or non-common carrier to flexibility to alternate

between common carrier and non-common carrier service.

9. In Sec. 21.42, paragraph (b)(3) is revised, and paragraph (c)(8)

is added, to read as follows:

Sec. 21.42 Certain modifications not requiring prior authorization.

* * * * *

(b) * * *

(3) The Commission is notified of changes made to facilities by the

submission of a completed FCC Form 304 within thirty (30) days after

the changes are made.

* * * * *

(c) * * *

(8) A change to a sectorized antenna system comprising an array of

directional antennas, provided that such system does not change

polarization or result in an increase in radiated power by more than

one dB in any direction; provided, however, that notice of such change

is provided to the Commission on FCC Form 331 within ten (10) days of

installation.

* * * * *

10. In Sec. 21.101, paragraph (a), footnote 2 is revised to read as

follows:

Sec. 21.101 Frequency tolerance.

(a) * * *

________________

\2\ Beginning November 1, 1991, equipment authorized to be

operated in the frequency bands 2150-2162 MHz, 2596-2644 MHz, 2650-

2656 MHz, 2662-2668 MHz, and 2674-2680 MHz for use in the Multipoint

Distribution Service shall maintain a frequency tolerance within

1 kHz of the assigned frequency. MDS booster stations

authorized pursuant to Sec. 21.913(b) shall maintain a frequency

tolerance within 1 kHz of the assigned frequencies. MDS

booster stations authorized pursuant to Sec. 21.913(e) and MDS

response stations authorized pursuant to Sec. 21.909 shall employ

transmitters with sufficient frequency stability to ensure that the

emission stays within the authorized bandwidth.

* * * * *

11. In Sec. 21.118, paragraph (c) is revised to read as follows:

Sec. 21.118 Transmitter construction and installation.

* * * * *

(c) Each transmitter employed in these services shall be equipped

with an appropriately labeled pilot lamp or meter which will provide

continuous visual indication at the transmitter when its control

circuits have been placed in a condition to activate the transmitter.

Such requirement will not be applicable to MDS response stations or MDS

booster stations authorized pursuant to Sec. 21.913(e). In addition,

facilities shall be provided at each transmitter to permit the

transmitter to be turned on and off independently of any remote control

circuits associated therewith.

* * * * *

12. Section 21.201 is revised to read as follows:

Sec. 21.201 Posting of station license.

Each licensee shall post at the station, the booster station

authorized pursuant to Sec. 21.913(b) or the MDS response station hub

the name, address and telephone number of the custodian of the station

license or other instrument of authorization if such license or

instrument of authorization, or a clearly legible photocopy thereof, is

not maintained at the station, booster

[[Page 65102]]

station or response station hub. Each operator of an MDS booster

station authorized pursuant to Sec. 21.913(e) shall post at the booster

station the name, address and telephone number of the custodian of the

notification filed pursuant to Sec. 21.913(e) if such notification is

not maintained at the station.

13. Section 21.304 is revised to read as follows:

Sec. 21.304 Tariffs, reports, and other material required to be

submitted to the Commission.

Sections 1.771 through 1.815 of this chapter contain summaries of

certain materials and reports, including schedule of charges and

accounting and financial reports, which, when applicable, must be filed

with the Commission. These requirements likewise shall apply to

licensees which alternate between rendering service on a common carrier

and non-common carrier basis.

14. Section 21.900 is revised to read as follows:

Sec. 21.900 Eligibility.

(a) Authorizations for stations in this service will be granted to

existing and proposed communications common carriers and non-common

carriers. An application will be granted only in cases where it can be

shown that:

(1) The applicant is legally, financially, technically, and

otherwise qualified to render the proposed service; and

(2) There are frequencies available to enable the applicant to

render a satisfactory service; and

(3) The public interest, convenience and necessity would be served

by a grant thereof.

(b) The applicant shall state whether service will be provided on a

common carrier basis, a non-common carrier basis, or alternating

between a common carrier and non-common carrier basis. In addition, an

applicant proposing to provide any common carrier service whatsoever

shall state whether there is any affiliation or relationship to any

intended or likely subscriber or program originator.

15. In Sec. 21.901, paragraphs (a), (b), and (d) and note 1 are

revised, and new paragraph (g) is added, to read as follows:

Sec. 21.901 Frequencies.

(a) Frequencies in the bands 2150-2162 MHz, 2596-2644 MHz, 2650-

2656 MHz, 2662-2668 MHz, 2674-2680 MHz and 2686-2690 MHz are available

for assignment to fixed stations in this service. Frequencies in the

band 2150-2160 MHz are shared with nonbroadcast omnidirectional radio

systems licensed under other parts of the Commission's Rules, and

frequencies in the band 2160-2162 MHz are shared with directional radio

systems authorized in other common carrier services. Frequencies in the

2596-2644 MHz band are shared with Instructional Television Fixed

Service stations licensed under part 74 of the Commission's Rules.

Channels I5, I13, I6 and I14, listed in Sec. 74.939(j) of this chapter,

are assigned to fixed stations in the 2596-2620 band, and are shared

with Instructional Television Fixed Service Stations licensed under

part 74 of the Commission's Rules to operate in this band;

grandfathered channels I21, I29, I22 and I30, listed in Sec. 74.939(j)

of this chapter, are licensed under part 21 or part 74 of the

Commission's Rules, as applicable.

(b) Applicants may be assigned a channel(s) according to one of the

following frequency plans:

(1) At 2150-2156 MHz (designated as Channel 1), or

(2) At 2156-2162 MHz (designated as Channel 2), or

(3) At 2156-2160 MHz (designated as Channel 2A), or

(4) At 2596-2602 MHz, 2608-2614 MHz, 2620-2626 MHz, and 2632-2638

MHz (designated as Channels E1, E2, E3 and E4, respectively, with the

four channels to be designated the E-group channels), and Channels I5

and I13 listed in Sec. 74.939(j) of this chapter,\1\ or

(5) At 2602-2608 MHz, 2614-2620 MHz, 2626-2632 MHz and 2638-2644

MHz (designated as Channels F1, F2, F3 and F4, respectively, with the

four channels to be designated the F-group channels), and Channels I6

and I14, listed in Sec. 74.939(j) of this chapter,\1\ or

(6) At 2650-2656 MHz, 2662-2668 MHz and 2674-2680 MHz (designated

as Channels H1, H2 and H3, respectively, with the three channels to be

designated the H-group channels).\1\

* * * * *

(d) An MDS licensee or conditional licensee may apply to exchange

evenly one or more of its assigned channels with another MDS licensee

or conditional licensee in the same system, or with an ITFS licensee or

conditional licensee in the same system where one or both parties

utilizes digital transmissions or leases capacity to an operator which

utilizes digital transmissions. The licensees or conditional licensees

seeking to exchange channels shall file in tandem with the Commission

separate pro forma assignment of license applications, each attaching

an exhibit which clearly specifies that the application is filed

pursuant to a channel exchange agreement. The exchanged channel(s)

shall be regulated according to the requirements applicable to the

assignee.

* * * * *

(g) Frequencies in the bands 2150-2162 MHz, 2596-2644 MHz, 2650-

2656 MHz, 2662-2668 MHz and 2674-2680 MHz are available for point-to-

multipoint use and/or for communications between MDS response stations

and response station hubs when authorized in accordance with the

provisions of Sec. 21.909, provided that such frequencies may be

employed for MDS response stations only when transmitting using digital

modulation.

________________

\1\ No 125 kHz channels are provided for Channels E3, E4, F3,

F4, H1, H2 and H3, except for those grandfathered for Channels E3,

E4, F3 and F4. The 125 kHz channels associated with Channels E3, E4,

F3, F4, H1, H2 and H3 are allocated to the Private Operational Fixed

Point-to-Point Microwave Service, pursuant to Sec. 101.147(g) of

this chapter.

16. In Sec. 21.902, the section heading, paragraphs (b)(3), (b)(4)

(b)(5)(i), (f)(1) and (f)(2) are revised, and new paragraphs (b)(7) and

(l) are added, to read as follows:

Sec. 21.902 Interference.

* * * * *

(b) * * *

(3) Engineer the system to provide at least 45 dB of cochannel

interference protection within the 56.33 km (35 mile) protected service

area of any authorized or previously-proposed ITFS or incumbent MDS

station, and at each previously-registered ITFS receive site (both

stations utilizing 6 MHz bandwidths).

(4) Engineer the station to provide at least 0 dB of adjacent

channel interference protection within the 56.33 km (35 mile) protected

service area of any authorized or previously-proposed ITFS or incumbent

MDS station, and at each previously-registered ITFS receive site (both

stations utilizing 6 MHz bandwidths).

(5) (i) Engineer the station to limit the calculated free space

power flux density to -73 dBW/m \2\ (or the appropriate value for

bandwidth other than 6 MHz) at the boundary of a 56.33 km (35 mile)

protected service area, where there is an unobstructed signal path from

the transmitting antenna to the boundary; or alternatively, obtain the

written consent of the entity authorized for the adjoining area to

exceed the -73 dBW/m \2\ limiting signal strength at the common

boundary.

* * * * *

[[Page 65103]]

(7) Notwithstanding the above, main, booster and response stations

shall use the following formulas, as applicable, for determining

compliance with: (1) Radiated field contour limits where bandwidths

other than 6 MHz are employed at stations utilizing digital modulation

with uniform power spectral density; and (2) Cochannel and adjacent

channel D/U ratios where the bandwidths in use at the interfering and

protected stations are unequal and both stations are utilizing digital

modulation with uniform power spectral density or one station is

utilizing such modulation and the other station is utilizing either 6

MHz NTSC analog modulation or 125 kHz analog modulation (I channels

only).

(i) Contour limit: -73 dBW + 10 log (X/6), where X is the bandwidth

in MHz of the digital channel.

(ii) Cochannel D/U: 45 dB + 10 log (X1/X2), where X1 is the

bandwidth in MHz of the protected channel and X2 is the bandwidth in

MHz of the interfering channel.

(iii) Adjacent channel D/U: 0 dB + 10 log (X1/X2), where X1 is the

bandwidth in MHz of the protected channel and X2 is the bandwidth in

MHz of the interfering channel.

* * * * *

(f) * * *

(1) Cochannel interference is defined as the ratio of the desired

signal to the undesired signal present in the desired channel, at the

output of a reference receiving antenna oriented to receive the maximum

desired signal. Harmful interference will be considered present when a

free space calculation for an unobstructed signal path determines that

this ratio is less than 45 dB (both stations utilizing 6 MHz

bandwidths).

(2) Adjacent channel interference is defined as the ratio of the

desired signal to undesired signal present in an adjacent channel, at

the output of a reference receiving antenna oriented to receive the

maximum desired signal level.

(i) Harmful interference will be considered present when a free

space calculation for an unobstructed signal path determines that this

ratio is less than 0 dB (both stations utilizing 6 MHz bandwidths).

(ii) In the alternative, harmful interference will be considered

present for an ITFS station constructed before May 26, 1983, when a

free space calculation determines that this ratio is less than 10 dB

(both stations utilizing 6 MHz bandwidths), unless:

(A) The individual receive site under consideration has been

subsequently upgraded with up-to-date reception equipment, in which

case the ratio shall be less than 0 dB. Absent information presented to

the contrary, however, the Commission will assume that reception

equipment installation occurred simultaneously with original station

equipment; or

(B) The license for an MDS station is conditioned on the proffer to

the affected ITFS station licensee of equipment capable of providing a

ratio of 0 dB or more at no expense to the ITFS station licensee, and

also conditioned, if necessary, on the proffer of installation of such

equipment; and there has been no showing by the affected ITFS station

licensee demonstrating good cause and that the proposed equipment will

not provide a ratio of 0 dB or more, or that installation of such

equipment, at no expense to the ITFS station licensee, is not possible

or has not been proffered.

* * * * *

(l) Specific rules relating to response station hubs, booster

stations, and 125 kHz channels are set forth in Secs. 21.909, 21.913,

21.940, 74.939 of this chapter, 74.940 of this chapter and 74.985 of

this chapter. To the extent those specific rules are inconsistent with

any rules set forth above, those specific rules shall control.

17. In Sec. 21.903, paragraphs (a) and (b)(1) are revised, and new

paragraph (d) is added, to read as follows:

Sec. 21.903 Purpose and permissible service.

(a) Multipoint Distribution Service channels are available for

transmissions from MDS stations and associated MDS signal booster

stations to receive locations, and from MDS response stations to

response station hubs. When service is provided on a common carrier

basis, subscriber supplied information is transmitted to points

designated by the subscriber. When service is provided on a non-common

carrier basis, transmissions may include information originated by

persons other than the licensee, licensee-manipulated information

supplied by other persons, or information originated by the licensee.

Point-to-point radio return links from a subscriber's location to a MDS

operator's facilities may also be authorized in the 18,580 through

18,820 MHz and 18,920 through 19,160 MHz bands. Rules governing such

operation are contained in subpart I of part 101 of this chapter, the

Point-to-Point Microwave Radio Service.

(b) * * *

(1) Unless service is rendered on a non-common carrier basis, the

common carrier controls the operation of all receiving facilities

(e.g., including any equipment necessary to convert the signal to a

standard television channel, but excluding the television receiver);

and

* * * * *

(d) An MDS licensee also may apply for authorization by the

Commission to alternate, without further authorization required,

between rendering service on a common carrier and non-common carrier

basis, provided that the licensee notify the Commission of any service

status changes at least 30 days in advance of such changes.

18. Section 21.904 is revised to read as follows:

Sec. 21.904 Transmitter power.

(a) The maximum EIRP of an MDS main or booster station shall not

exceed 33 dBW (or, when digital modulation with uniform power spectral

density and subchannels or superchannels, or 125 kHz channels, are

used, the appropriately adjusted value based upon the ratio of 6 MHz to

the subchannel or superchannel, or 125 kHz, bandwidth), except as

provided in paragraph (b) of this section.

(b) If a main or booster station sectorizes or otherwise uses one

or more transmitting antennas with a non-omnidirectional horizontal

plane radiation pattern, the maximum EIRP over a 6 MHz channel in dBW

in a given direction shall be determined by the following formula:

EIRP = 33 dBW + 10 log (360/beamwidth) [where 10 log (360/beamwidth)

6 dB]. Beamwidth is the total horizontal plane beamwidth of

the individual transmitting antenna for the station or any sector

measured at the half-power points. The first term of the equation

above, 33 dBW, must be adjusted appropriately based upon the ratio of 6

MHz to the subchannel or superchannel, or 125 kHz, bandwidth.

(c) An increase in station transmitter power, above currently

authorized or previously-proposed values, to the maximum values

provided in paragraphs (a) and (b) of this section, may be authorized,

if the requested power increase would not cause harmful interference to

any authorized or previously-proposed, cochannel or adjacent channel

station entitled to interference protection under the Commission's

rules, or if an applicant demonstrates that:

(1) A station that must be protected from interference could

eliminate that interference by increasing its power; and

(2) The interfered-with station may increase its own power

consistent with

[[Page 65104]]

the rules and without causing interference to any MDS booster station

or response station hub which operates as part of the same coordinated

system as the interfered-with station; and

(3) The applicant requesting authorization of a power increase

agrees to pay all expenses associated with the increase in power by the

interfered-with station.

19. In Sec. 21.905, paragraph (b) is revised, and new paragraph (d)

is added, to read as follows:

Sec. 21.905 Emissions and bandwidth.

* * * * *

(b) Quadrature amplitude modulation, digital vestigial sideband

modulation, quadrature phase shift key modulation and code division

multiple access emissions may be employed, subject to compliance with

the policies set forth in the Declaratory Ruling and Order, 11 FCC Rcd

18839 (1996). Different types of emissions may be authorized if the

applicant describes fully the modulation and bandwidth desired and

demonstrates that operation of the station will not cause impermissible

interference. The licensee may subchannelize its authorized bandwidth,

provided that digital modulation is employed and the aggregate power

does not exceed the authorized power for the channel, and may utilize

all or a portion of its authorized bandwidth for MDS response stations

authorized pursuant to Sec. 21.909. The licensee may also, jointly with

affected adjacent channel licensees, transmit utilizing bandwidth in

excess of its authorized frequencies, provided that digital modulation

is employed, all power spectral density requirements set forth in this

part are met and the out-of-band emissions restrictions set forth in

Sec. 21.908 are met at and beyond the edges of the channels employed.

The wider channels thus created may be redivided to create narrower

channels.

* * * * *

(d) Notwithstanding the above, any digital emission which meets the

uniform power spectral density requirements of the Declaratory Ruling

and Order may be used in the following circumstances:

(1) At any MDS main or booster station transmitter which is located

more than 160.94 km (100 miles) from the nearest boundary of all

cochannel and adjacent channel ITFS and MDS protected service areas,

including Basic Trading Areas and Partitioned Service Areas; and

(2) At all MDS response station transmitters within a response

service area if all points along the response service area boundary

line are more than 160.94 km (100 miles) from the nearest boundary of

all cochannel and adjacent channel ITFS and MDS protected service

areas, including Basic Trading Areas and Partitioned Service Areas; and

(3) At any MDS transmitter where all parties entitled by this part

to interference protection from that transmitter have mutually

consented to the use at that transmitter of such emissions.

20. In Sec. 21.906, paragraphs (a) and (d) are revised to read as

follows:

Sec. 21.906 Antennas.

(a) Transmitting antennas shall be omnidirectional, except that a

directional antenna with a main beam sufficiently broad to provide

adequate service may be used either to avoid possible interference with

other users in the frequency band, or to provide coverage more

consistent with distribution of potential receiving points. In lieu of

an omnidirectional antenna, a station may employ an array of

directional antennas in order to reuse spectrum efficiently. When an

applicant proposes to employ a directional antenna, or a licensee

notifies the Commission pursuant to Sec. 21.42 of the installation of a

sectorized antenna system, the applicant shall provide the Commission

with information regarding the orientation of the directional

antenna(s), expressed in degree of azimuth, with respect to true north,

and the make and model of such antenna(s).

* * * * *

(d) Directive receiving antennas shall be used at all points other

than response station hubs and shall be elevated no higher than

necessary to assure adequate service. Receiving antenna height shall

not exceed the height criteria of part 17 of this chapter, unless

authorization for use of a specific maximum antenna height (above

ground and above mean sea level) for each location has been obtained

from the Commission prior to the erection of the antenna. Requests for

such authorization shall show the inclusive dates of the proposed

operation. (See part 17 of this chapter concerning the construction,

marking and lighting of antenna structures.)

Sec. 21.907 [Removed]

21. Section 21.907 is removed.

22. In Sec. 21.908, paragraph (b) is redesignated as paragraph (a),

the section heading and newly redesignated paragraph (a) are revised,

paragraphs (c) through (e) are removed, and new paragraphs (b) through

(e) are added, to read as follows:

Sec. 21.908 Transmitting equipment.

(a) The maximum out-of-band power of an MDS station transmitter or

booster transmitting on a single 6 MHz channel with an EIRP in excess

of -9 dBW employing analog modulation shall be attenuated at the

channel edges by at least 38 dB relative to the peak visual carrier,

then linearly sloping from that level to at least 60 dB of attenuation

at 1 MHz below the lower band edge and 0.5 MHz above the upper band

edge, and attenuated at least 60 dB at all other frequencies. The

maximum out-of-band power of an MDS station transmitter or booster

transmitting on a single 6 MHz channel or a portion thereof with an

EIRP in excess of -9 dBW (or, when subchannels are used, the

appropriately adjusted value based upon the ratio of the channel-to-

subchannel bandwidths) employing digital modulation shall be attenuated

at the 6 MHz channel edges at least 25 dB relative to the licensed

average 6 MHz channel power level, then attenuated along a linear slope

to at least 40 dB at 250 kHz beyond the nearest channel edge, then

attenuated along a linear slope from that level to at least 60 dB at 3

MHz above the upper and below the lower licensed channel edges, and

attenuated at least 60 dB at all other frequencies. Notwithstanding the

foregoing, in situations where an MDS station or booster station

transmits, or where adjacent channel licensees jointly transmit, a

single signal over more than one contiguous 6 MHz channel utilizing

digital modulation with an EIRP in excess of -9 dBW (or, when

subchannels or superchannels are used, the appropriately adjusted value

based upon the ratio of 6 MHz to the subchannel or superchannel

bandwidth), the maximum out-of-band power shall be attenuated at the

channel edges of those combined channels at least 25 dB relative to the

power level of each channel, then attenuated along a linear slope from

that level to at least 40 dB at 250 kHz above or below the channel

edges of those combined channels, then attenuated along a linear slope

from that level to at least 60 dB at 3 MHz above the upper and below

the lower edges of those combined channels, and attenuated at least 60

dB at all other frequencies. However, should harmful interference occur

as a result of emissions outside the assigned channel, additional

attenuation may be required. A transmitter licensed prior to November

1, 1991, that remains at the station site initially licensed, and does

not comply with this paragraph, may continue to be used for its life if

it does not cause harmful interference to the operation of any other

licensee. Any

[[Page 65105]]

non-conforming transmitter replaced after November 1, 1991, must be

replaced by a transmitter meeting the requirements of this paragraph.

(b) A booster transmitting on multiple contiguous or non-contiguous

channels carrying separate signals (a ``broadband'' booster) with an

EIRP in excess of -9 dBW per 6 MHz channel and employing analog,

digital or a combination of these modulations shall have the following

characteristics:

(1) For broadband boosters operating in the frequency range of

2.150-2.160/2 GHz, the maximum out-of-band power shall be attenuated at

the upper and lower channel edges forming the band edges by at least 25

dB relative to the licensed analog peak visual carrier or digital

average power level (or, when subchannels are used, the appropriately

adjusted value based on upon the ratio of the channel-to-subchannel

bandwidths), then linearly sloping from that level to at least 40 dB of

attenuation at 0.25 MHz above and below the band edges, then linearly

sloping from that level to at least 60 dB of attenuation at 3.0 MHz

above and below the band edges, and attenuated at least 60 dB at all

other frequencies.

(2) For broadband boosters operating in the frequency range of

2.500-2.690 GHz, the maximum out-of-band power shall be attenuated at

the upper and lower channel edges forming the band edges by at least 25

dB relative to the licensed analog peak visual carrier or digital

average power level (or, when subchannels are used, the appropriately

adjusted value based on upon the ratio of the channel-to-subchannel

bandwidths), then linearly sloping from that level to at least 40 dB of

attenuation at 0.25 MHz above and below the band edges, then linearly

sloping from that level to at least 50 dB of attenuation at 3.0 MHz

above and below the band edges, then linearly sloping from that level

to at least 60 dB of attenuation at 20 MHz above and below the band

edges, and attenuated at least 60 dB at all other frequencies.

(3) Within unoccupied channels in the frequency range of 2.500-

2.690 GHz, the maximum out-of-band power shall be attenuated at the

upper and lower channel edges of an unoccupied channel by at least 25

dB relative to the licensed analog peak visual carrier power level or

digital average power level of the occupied channels (or, when

subchannels or 125 kHz channels are used, the appropriately adjusted

value based upon the ratio of the channel-to-subchannel bandwidths),

then linearly sloping from that level to at least 40 dB of attenuation

at 0.25 MHz above and below the occupied channel edges, then linearly

sloping from that level to at least 50 dB of attenuation at 3.0 MHz

above and below the occupied channel edges, and attenuated at least 50

dB at all other unoccupied frequencies.

(c) Boosters operating with an EIRP less than -9 dBW per 6 MHz

channel shall have no particular out-of-band power attenuation

requirement, except that if they cause harmful interference, their

operation shall be terminated within 2 hours of notification by the

Commission until the interference can be cured.

(d) The maximum out-of-band power of an MDS response station using

all or part of a 6 MHz channel and employing digital modulation shall

be attenuated at the 6 MHz channel edges at least 25 dB relative to the

licensed average 6 MHz channel power level, then attenuated along a

linear slope to at least 40 dB at 250 kHz beyond the nearest channel

edge, then attenuated along a linear slope from that level to at least

60 dB at 3 MHz above the upper and below the lower licensed channel

edges, and attenuated at least 60 dB at all other frequencies. Where

MDS response stations with digital modulation utilize all or part of

more than one contiguous 6 MHz channel to form a larger channel (e.g.,

a channel of width 12 MHz), the above-specified attenuations shall be

applied only at the upper and lower edges of the overall combined

channel. Notwithstanding these provisions, should harmful interference

occur as a result of emissions outside the assigned channel(s),

additional attenuation may be required by the Commission.

(e) In measuring compliance with the out-of-band emissions

limitations, the licensee shall employ one of two methods in each

instance: (1) absolute power measurement of the average signal power

with one instrument, with measurement of the spectral attenuation on a

separate instrument; or (2) relative measurement of both the average

power and the spectral attenuation on a single instrument. The formula

for absolute power measurements is to be used when the average signal

power is found using a separate instrument, such as a power meter; the

formula gives the amount by which the measured power value is to be

attenuated to find the absolute power value to be used on the spectrum

analyzer or equivalent instrument at the spectral point of concern. The

formula for relative power measurements is to be used when the average

signal power is found using the same instrument as used to measure the

attenuation at the specified spectral points, and allows different

resolution bandwidths to be applied to the two parts of the

measurement; the formula gives the required amplitude separation (in

dB) between the flat top of the (digital) signal and the point of

concern.

For absolute power measurements:

Attenuation in dB (below channel power) = A + 10log

(CBW / RBw)

For relative power measurements:

Attenuation in dB (below flat top) = A + 10log

(RBW1 / RBW2)

Where:

A= Attenuation specified for spectral point (e.g., 25, 35, 40, 60 dB)

CBW = Channel bandwidth (for absolute power measurements)

RBW = Resolution bandwidth (for absolute power measurements)

RBW1 = Resolution bandwidth for flat top measurement

(relative)

RBW2 = Resolution bandwidth for spectral point measurement

(relative)

23. Section 21.909 is revised to read as follows:

Sec. 21.909 MDS response stations.

(a) An MDS response station is authorized to provide communication

by voice, video and/or data signals with its associated MDS response

station hub or MDS station. An MDS response station may be operated

only by the licensee of an MDS station, by any lessee of the MDS

station or response station hub, or by a subscriber of either. The

authorized channel may be divided to provide distinct subchannels for

each of more than one response station, provided that digital

modulation is employed and the aggregate power does not exceed the

authorized power for the channel. An MDS response station may also,

jointly with other licensees, transmit utilizing bandwidth in excess of

that authorized to the station, provided that digital modulation is

employed, all power spectral density requirements set forth in this

part are met, and the out-of-band emissions restrictions set forth in

Sec. 21.908(b) or paragraph (j) of this section are complied with. When

a 125 kHz channel is employed for response communications, the specific

channel which may be used by the response station is determined in

accordance with Secs. 21.901 and 74.939(j) of this chapter.

(b) MDS response stations that utilize the 2150-2162 MHz band, the

2500-2686 MHz band, and/or the 125 kHz channels may be installed and

operated without an individual license, to communicate with a response

station hub authorized under a response station hub license, provided

that the conditions set forth in paragraph (g) of this section are

complied with and that MDS response stations operating in the

[[Page 65106]]

2150-2162 MHz and/or 2500-2686 MHz band(s) employ only digital

modulation with uniform power spectral density in accordance with the

Commission's Declaratory Ruling and Order, 11 FCC Rcd 18839 (1996).

(c) An applicant for a response station hub license shall:

(1) File FCC Form 331 with Mellon Bank, and certify on that form

that it has complied with the requirements of paragraphs (c)(2) and (d)

of this section. Failure to certify compliance and to comply completely

with the requirements of paragraphs (c)(2) and (d) of this section

shall result in dismissal of the application or revocation of the

response station hub license, and may result in imposition of a

monetary forfeiture; and

(2) Submit to International Transcription Services, Inc. (``ITS''),

1231 20th Street, N.W., Washington, DC 20036, both in hard copy, and on

a 3.5'' computer diskette in ASCII, the following:

(i) Duplicates of the Form 331 filed with Mellon Bank; and

(ii) The data required by Appendix D to the Report and Order in MM

Docket No. 97-217, FCC 98-231, ``Methods for Predicting Interference

from Response Station Transmitters and to Response Station Hubs and for

Supplying Data on Response Station Systems''; and

(iii) The information, showings and certifications required by

paragraph (d) of this section; and

(3) Submit to the Commission, only upon Commission staff request,

duplicates of the submissions required by paragraph (c)(2) of this

section.

(d) An applicant for a response station hub license shall, pursuant

to paragraph (c)(2)(iii) of this section, submit to ITS the following:

(1) The geographic coordinates, street address, and the height of

the center line of the reception antenna(s) above mean sea level for

the proposed response station hub; and

(2) A specification of:

(i) the response service area in which the applicant or its lessee

proposes to install MDS response stations to communicate with the

response station hub, any regions into which the response service area

will be subdivided for purposes of interference analysis, and any

regional classes of response station characteristics which will be used

to define the operating parameters of groups of response stations

within each region for purposes of interference analysis, including:

(A) the maximum height above ground level of the transmission

antenna that will be employed by any response station in the regional

class and that will be used in interference analyses; and

(B) the maximum equivalent isotropic radiated power (EIRP) that

will be employed by any response station in the regional class and that

will be used in interference analyses; and

(C) any sectorization that will be employed, including the

polarization to be employed by response stations in each sector and the

geographic orientation of the sector boundaries, and that will be used

in interference analyses; and

(D) the combined worst-case outer envelope plot of the patterns of

all models of response station transmission antennas that will be

employed by any response station in the regional class to be used in

interference analyses; and

(E) the maximum number of response stations that will be operated

simultaneously in each region using the characteristics of each

regional class applicable to each region.

(ii) the channel plan (including any guardbands at the edges of the

channel) to be used by MDS response stations in communicating with each

response station hub, including a statement as to whether the applicant

will employ the same frequencies on which response stations will

transmit to also transmit on a point-to-multipoint basis from an MDS

station or MDS booster station; and

(3) A demonstration that:

(i) The proposed response station hub is within a protected service

area, as defined in Sec. 21.902(d) or Sec. 21.933, to which the

applicant is entitled either

(A) by virtue of its being the licensee of an incumbent MDS station

whose channels are being converted for MDS response station use; or

(B) by virtue of its holding a Basic Trading Area or Partitioned

Service Area authorization. In the case of an application for response

stations to utilize one or more of the 125 kHz response channels, such

demonstration shall establish that the response station hub is within

the protected service area of the station authorized to utilize the

associated E-Group or F-Group channel(s); and

(ii) The entire proposed response service area is within a

protected service area to which the applicant is entitled either (A) by

virtue of its being the licensee of an incumbent MDS station whose

channels are being converted for MDS response station use; or (B) by

virtue of its holding a Basic Trading Area or Partitioned Service Area

authorization. In the alternative, the applicant may demonstrate that

the licensee entitled to any cochannel protected service area which is

overlapped by the proposed response service area has consented to such

overlap. In the case of an application for response stations to utilize

one or more of the 125 kHz response channels, such demonstration shall

establish that the response service area is entirely within the

protected service area of the station authorized to utilize the

associated E-Group or F-Group channel(s), or, in the alternative, that

the licensee entitled to any cochannel protected service area which is

overlapped by the proposed response service area has consented to such

overlap; and

(iii) The combined signals of all simultaneously operating MDS

response stations within all response service areas and oriented to

transmit towards their respective response station hubs, and all

cochannel MDS stations and booster stations licensed to or applied for

by the applicant will not generate a power flux density in excess of -

73 dBW/m\2\ (or the pro rata power spectral density equivalent based on

the bandwidth actually employed in those cases where less than a 6 MHz

channel is to be employed) outside the boundaries of the applicant's

protected service area, as measured at locations for which there is an

unobstructed signal path, except to the extent that consent of affected

licensees has been obtained or consents have been granted pursuant to

paragraph (d)(3)(ii) of this section to an extension of the response

service area beyond the boundaries of the protected service area; and

(iv) The combined signals of all simultaneously operating MDS

response stations within all response service areas and oriented to

transmit towards their respective response station hubs, and all

cochannel MDS stations and booster stations licensed to or applied for

by the applicant, will result in a desired to undesired signal ratio of

at least 45 dB (or the appropriately adjusted value based upon the

ratio of the channel-to-subchannel bandwidths):

(A) within the protected service area of any authorized or

previously-proposed cochannel incumbent MDS or ITFS station with a

56.33 km (35 miles) protected service area with center coordinates

located within 160.94 km (100 miles) of the proposed response station

hub; and

(B) within the booster service area of any cochannel booster

station entitled to such protection pursuant to Secs. 21.913(f) or

74.985(f) of this chapter and located within 160.94 km (100 miles) of

the proposed response station hub; and

(C) at any registered receive site of any authorized or previously-

proposed cochannel ITFS station or booster station located within

160.94 km (100 miles) of the proposed response station

[[Page 65107]]

hub, or, in the alternative, that the licensee of or applicant for such

cochannel station or hub consents to the application; and

(v) The combined signals of all simultaneously operating MDS

response stations within all response service areas and oriented to

transmit towards their respective response station hubs, and all

cochannel MDS stations and booster stations licensed to or applied for

by the applicant, will result in a desired to undesired signal ratio of

at least 0 dB (or the appropriately adjusted value based upon the ratio

of the channel to subchannel bandwidths):

(A) within the protected service area of any authorized or

previously-proposed adjacent channel incumbent MDS or ITFS station with

a 56.33 km (35 miles) protected service area with center coordinates

located within 160.94 km (100 miles) of the proposed response station

hub; and

(B) within the booster service area of any adjacent channel booster

station entitled to such protection pursuant to Secs. 21.913(f) or

74.985(f) of this chapter and located within 160.94 km (100 miles) of

the proposed response station hub; and

(C) at any registered receive site of any authorized or previously-

proposed adjacent channel ITFS station or booster station located

within 160.94 km (100 miles) of the proposed response station hub, or,

in the alternative, that the licensee of or applicant for such adjacent

channel station or hub consents to the application; and

(vi) The combined signals of all simultaneously operating MDS

response stations within all response service areas and oriented to

transmit towards their respective response station hubs and all

cochannel MDS stations and booster stations licensed to or applied for

by the applicant will comply with the requirements of paragraph (i) of

this section and Sec. 74.939(i) of this chapter.

(4) A certification that the application has been served upon.

(i) The holder of any cochannel or adjacent channel authorization

with a protected service area which is overlapped by the proposed

response service area;

(ii) The holder of any cochannel or adjacent channel authorization

with a protected service area that adjoins the applicant's protected

service area;

(iii) The holder of a cochannel or adjacent channel authorization

for any BTA or PSA inside whose boundaries are locations for which

there is an unobstructed signal path for combined signals from within

the response station hub applicant's protected service area; and

(iv) Every licensee of, or applicant for, any cochannel or adjacent

channel, authorized or previously-proposed, incumbent MDS station with

a 56.33 km (35 mile) protected service area with center coordinates

located within 160.94 km (100 miles) of the proposed response station

hub; and

(v) Every licensee of, or applicant for, any cochannel or adjacent

channel, authorized or previously-proposed ITFS station (including any

booster station or response station hub) located within 160.94 km (100

miles) of the proposed response station hub.

(e) Except as set forth in Sec. 21.27(d), applications for response

station hub licenses may be filed at any time. Notwithstanding any

other provision of part 21 (including Sec. 21.31), applications for

response station hub licenses meeting the requirements of paragraph (c)

of this section shall cut-off applications that are filed on a

subsequent day for facilities that would cause harmful electromagnetic

interference to the proposed response station hubs. A response station

hub shall not be entitled to protection from interference caused by

facilities proposed on or prior to the day the application for the

response station hub license is filed. Response stations shall not be

required to protect from interference facilities proposed on or after

the day the application for the response station hub license is filed.

(f) Notwithstanding the provisions of Sec. 21.30(b)(4) and except

as set forth in Sec. 21.27(d), any petition to deny an application for

a response station hub license shall be filed no later than the

sixtieth (60th) day after the date of public notice announcing the

filing of such application or major amendment thereto. Notwithstanding

Sec. 21.31 and except as provided in Sec. 21.27(d), an application for

a response station hub license that meets the requirements of this

section shall be granted on the sixty-first (61st) day after the

Commission shall have given public notice of the acceptance for filing

of it, or of a major amendment to it if such major amendment has been

filed, unless prior to such date either a party in interest timely

files a formal petition to deny or for other relief pursuant to

Sec. 21.30(a), or the Commission notifies the applicant that its

application will not be granted. Where an application is granted

pursuant to the provisions of this paragraph, the conditional licensee

or licensee shall maintain a copy of the application at the response

station hub until such time as the Commission issues a response station

hub license.

(g) An MDS response station hub license shall be conditioned upon

compliance with the following:

(1) No MDS response station shall be located beyond the response

service area of the response station hub with which it communicates;

and

(2) No MDS response station shall operate with a transmitter output

power in excess of 2 watts; and

(3) No MDS response station shall operate with an EIRP in excess of

that specified in the application for the response station hub pursuant

to paragraph (d)(2)(i)(B) of this section for the particular regional

class of characteristics with which the response station is associated,

and such response station shall not operate at an excess of 33 dBW EIRP

(or, when subchannels or superchannels, or 125 kHz channels, are used,

the appropriately adjusted value based upon the ratio of 6 MHz to the

subchannel or superchannel, or 125 kHz, bandwidth); and

(4) Each MDS response station shall employ a transmission antenna

oriented towards the response station hub with which the MDS response

station communicates, and such antenna shall be no less directional

than the worst case outer envelope pattern specified in the application

for the response station hub pursuant to paragraph (d)(2)(i)(D) of this

section for the regional class of characteristics with which the

response station is associated; and

(5) The combined out-of-band emissions of all response stations

using all or part of one or multiple contiguous 6 MHz channels and

employing digital modulation shall comply with Sec. 21.908(d). The

combined out-of-band emissions of all response stations using all or

part of one or multiple contiguous 125 kHz channels shall comply with

paragraph (j) of this section. However, should harmful interference

occur as a result of emissions outside the assigned channel, additional

attenuation may be required; and

(6) The response stations transmitting simultaneously at any time

within any given region of the response service area utilized for

purposes of analyzing the potential for interference by response

stations shall conform to the numerical limits for each class of

response station proposed in the application for the response station

hub license. Notwithstanding the foregoing, the licensee of a response

station hub license may alter the number of response stations of any

class operated simultaneously in a given region, without prior

Commission authorization, provided that the licensee:

[[Page 65108]]

(i) First notifies the Commission of the altered number of response

stations of such class(es) to be operated simultaneously in such

region, and certifies in that notification that it has complied with

the requirements of paragraphs (g)(6)(ii) and (iii) of this section;

and

(ii) Provides ITS with a copy of such notification and with an

analysis establishing that such alteration will not result in any

increase in interference to the protected service area or protected

receive sites of any existing or previously-proposed, cochannel or

adjacent channel MDS or ITFS station or booster station, to the

protected service area of any MDS Basic Trading Area or Partitioned

Service Area licensee entitled to protection pursuant to paragraph

(d)(3) of this section, or to any existing or previously-proposed,

cochannel or adjacent channel response station hub, or response station

under Sec. 21.940 or Sec. 74.940 of this chapter; or that the applicant

for or licensee of such facility has consented to such interference;

and

(iii) Serves a copy of such notification and analysis upon each

party entitled to be served pursuant to paragraph (d)(4) of this

section; and

(iv) Submits to the Commission, only upon Commission staff request,

duplicates of the submissions required by paragraph (g)(6)(ii) of this

section; and

(7) Where an application is granted under this section, if a

facility operated pursuant to that grant causes harmful, unauthorized

interference to any cochannel or adjacent channel facility, it must

promptly remedy the interference or immediately cease operations of the

interfering facility, regardless of whether any petitions to deny or

for other relief were filed against the application during the

application process. The burden of proving that a facility operated

under this section is not causing harmful, unauthorized interference

lies on the licensee of the alleged interfering facility, following the

filing of a documented complaint of interference by an affected party;

and

(8) In the event any MDS or ITFS receive site suffers interference

due to block downconverter overload, the licensee of each response

station hub with a response service area within five miles of such

receive site shall cooperate in good faith to expeditiously identify

the source of the interference. Each licensee of a response station hub

with an associated response station contributing to such interference

shall bear the joint and several obligation to promptly remedy all

interference resulting from block downconverter overload at any ITFS

receive site registered prior to the submission of the application for

the response station hub license or at any receive site within an MDS

or ITFS protected service area applied for prior to the submission of

the application for the response station hub license, regardless of

whether the receive site suffering the interference was constructed

prior to or after the construction of the response station(s) causing

the downconverter overload; provided, however, that the licensee of the

registered ITFS receive site or the MDS or ITFS protected service area

must cooperate fully and in good faith with efforts by the response

station hub licensee to prevent interference before constructing

response stations and/or to remedy interference that may occur. In the

event that more than one response station hub licensee contributes to

block downconverter interference at a MDS or ITFS receive site, the

licensees of the contributing response station hubs shall cooperate in

good faith to remedy promptly the interference.

(h) Applicants must comply with part 17 of this chapter concerning

notification to the Federal Aviation Administration of proposed antenna

construction or alteration.

(i) Response station hubs shall be protected from cochannel and

adjacent channel interference in accordance with the following

criteria:

(1) An applicant for any new or modified MDS or ITFS station

(including any high-power booster station or response station hub)

shall be required to demonstrate interference protection to a response

station hub within 160.94 km (100 miles) of the proposed facilities. In

lieu of the interference protection requirements set forth in

Secs. 21.902(b)(3) through (b)(5), 21.938(b)(1) and (2) and (c), and

74.903 of this chapter, such demonstration shall establish that the

proposed facility will not increase the effective power flux density of

the undesired signals generated by the proposed facility and any

associated main stations, booster stations or response stations at the

response station hub antenna for any sector. In lieu of the foregoing,

an applicant for a new MDS or ITFS main station license or for a new or

modified response station hub or booster license may demonstrate that

the facility will not increase the noise floor at a reception antenna

of the response station hub by more than 1 dB for cochannel signals and

45 dB for adjacent channel signals, provided that:

(i) The entity submitting the application may only invoke this

alternative once per response station hub reception sector; or

(ii) The licensee of the affected response station hub may consent

to receive a certain amount of interference at its hub.

(2) Commencing upon the filing of an application for an MDS

response station hub license and until such time as the application is

dismissed or denied or, if the application is granted, a certification

of completion of construction is filed, the MDS station whose channels

are being utilized shall be entitled both to interference protection

pursuant to Secs. 21.902(b)(3) through (b)(5), 21.938(b)(1) and (2) and

(c), and 74.903 of this chapter, and to protection of the response

station hub pursuant to the preceding paragraph. Unless the application

for the response station hub license specifies that the same

frequencies also will be employed for digital and/or analog point-to-

multipoint transmissions by MDS stations and/or MDS booster stations,

upon the filing of a certification of completion of construction of an

MDS response station hub where the channels of an MDS station are being

utilized as response station transmit frequencies, the MDS station

whose channels are being utilized for response station transmissions

shall no longer be entitled to interference protection pursuant to

Secs. 21.902(b)(3) through (b)(5), 21.938(b)(1) and (2) and (c), and

74.903 of this chapter within the response service area with regard to

any portion of any 6 MHz channel employed solely for response station

communications. Upon the certification of completion of construction of

an MDS response station hub where the channels of an MDS station are

being utilized for response station transmissions and the application

for the response station hub license specifies that the same

frequencies will be employed for point-to-multipoint transmissions, the

MDS station whose channels are being utilized shall be entitled both to

interference protection pursuant to Secs. 21.902(b)(3) through (b)(5),

21.938(b)(1) and (2) and (c), and 74.903 of this chapter, and to

protection of the response station hub pursuant to the preceding

provisions of this paragraph.

(j) 125 kHz wide response channels shall be subject to the

following requirements: The 125 kHz wide channel shall be centered at

the assigned frequency. If amplitude modulation is used, the carrier

shall not be modulated in excess of 100%. If frequency modulation is

used, the deviation shall not exceed 25 kHz. Any emissions

outside the channel shall be

[[Page 65109]]

attenuated at the channel edges at least 35 dB below peak output power

when analog modulation is employed or 35 dB below licensed average

output power when digital modulation is employed (or, when subchannels

are used, the appropriately adjusted value based upon the ratio of the

channel-to-subchannel bandwidths). Any emissions more than 125 kHz from

either channel edge, including harmonics, shall be attenuated at least

60 dB below peak output power when analog modulation is employed, or at

least 60 dB below licensed average output power when digital modulation

is employed (or, when subchannels are used, the appropriately adjusted

value based upon the ratio of the channel-to-subchannel bandwidths).

Notwithstanding the foregoing, in situations where adjacent channel

licensees jointly transmit over more than one contiguous channel

utilizing digital modulation, the maximum out-of-band power shall be

attenuated at the edges of those combined channels at least 35 dB

relative to the licensed average power level of each channel. Emissions

more than 125 kHz from either edge of the combined channels, including

harmonics, shall be attenuated at least 60 dB below peak analog power

or average digital power of each channel, as appropriate.

(k) A response station may be operated unattended. The overall

performance of the response station transmitter shall be checked by the

hub licensee as often as necessary to ensure that it is functioning in

accordance with the requirements of the Commission's rules. The

licensee of a response station hub is responsible for the proper

operation of all associated response stations and must have reasonable

and timely access to all associated response station transmitters.

Response stations shall be installed and maintained by the licensee of

the associated hub station, or the licensee's employees or agents, and

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