An Industry Coordination Committee System for Broadcast Digital Television Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[ET Docket No. 99-34; FCC 99-8]

An Industry Coordination Committee System for Broadcast Digital

Television Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission has issued a Notice of Proposed Rule Making

(NPRM) requesting comment on the establishment of an industry

coordination committee to assist in the implementation of digital

television (DTV) service. The Commission indicated that it believes

such an industry committee could serve to improve its existing

procedures for adjusting the DTV Table of Allotments and for managing

requests for DTV station modifications as the transition to DTV

progresses.

DATES: Comments must be received on or before March 29, 1999, and reply

comments on or before April 28, 1999.

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

Washington, DC 20554

FOR FURTHER INFORMATION CONTACT: Alan Stillwell (202-418-2470), Office

of Engineering and Technology.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice

of Proposed Rule Making in ET Docket No. 99-34, FCC 99-8, adopted

January 28, 1999, and released February 3, 1999. The full text of this

decision is available for inspection and copying during normal business

hours in the Public Reference Branch (Room 230), 1919 M Street, NW.,

Washington, DC. The complete text of this decision also may be

purchased from the Commission's duplicating contractor, International

Transcription Service, 1231 20th Street, NW., Washington, DC 20036,

(202-857-3800).

Summary of the Notice of Proposed Rule Making

1. In the NPRM, the Commission sought comment on the establishment

of an industry coordination committee to assist in the implementation

of digital television (DTV) service. The Commission indicated that it

believes that such an industry committee may aid its efforts to provide

fair and efficient means for adjusting the DTV Table of Allotments and

for managing requests for DTV station modifications as the transition

to DTV progresses. It stated that a coordination committee might also

serve to provide assistance in managing any further requests for

modification of analog (NTSC) television stations during the transition

and on other issues such as inter-service sharing arrangements.

2. The Commission indicated that it believes that the general

principles and policies that were applied in establishing rules for

frequency coordination in the land mobile services are also relevant

and appropriate for guiding the development of an industry coordination

committee system for broadcast television. It presented a number of

proposals for the DTV industry coordination committee system that were

generally based on a plan suggested in a Petition for Rule Making

submitted by the Broadcasters' Caucus. These proposals, which are

presented below, address the following issues: (a) the structure of a

DTV industry coordination committee system; (b) its functions; (c) the

operation of the Committee system; (d) the selection of the DTV

frequency coordinators; and (e) the Commission's oversight of committee

operations. The Commission invited interested parties to submit

suggestions for any changes in these proposals or alternative

approaches relating to an industry committee system that they believe

would serve to improve the process for modifying the DTV Table and/or

to provide other assistance to the Commission on television spectrum

matters.

3. The Commission also indicated that if it decides to establish a

DTV coordination committee system, it will need to decide whether to

make participation in the committee process mandatory or voluntary. It

therefore requested comment on whether to require that television

station applicants, construction permit holders, licensees and others

with proposals that would affect TV spectrum coordinate their proposals

through the industry committee process or simply make participation in

that process voluntary. It noted that under a mandatory approach, the

industry coordination committee system would replace its existing rules

for voluntary negotiation of DTV allotment and facility modifications.

The Commission also reiterated its statement in the Memorandum Opinion

and Order on Reconsideration of the Sixth Report and Order in the DTV

proceeding, MM Docket No. 87-268, 13 FCC Rcd 6860, 63 FR 15774, April

11, 1998, that it intends that consideration of an industry

coordination committee system not delay the implementation of DTV

service. It therefore advised broadcasters that it will continue to

process applications for DTV stations and requests for modification of

facilities during the course of this proceeding. Broadcasters preparing

DTV applications and/or station modification requests therefore should

not delay the filing of those applications.

4. Under the structural plan proposed by the Commission, the

coordination of allotment and station changes would be organized on the

basis of regional committees operating under the umbrella of a national

organization (national coordinator). The national coordinator would

establish an organizational structure and administrative system for the

regional committees, manage a nationwide data base, maintain procedures

and software systems for performing technical analyses, and monitor the

work of the regional committees. The regional coordinating committees

would conduct evaluations and provide recommendations/advice to the

Commission and would also coordinate among local stations and within

the industry. The Commission did not present a plan for a specific

number of regional coordinating committees or for the boundaries of the

regions in which they would operate. Rather, it requested that

interested parties submit comments and suggestions with regard to this

issue and indicated that it would select an appropriate number of

committees and define the boundaries of the regions in which the

individual committees would operate after considering such submissions.

The Commission also requested comment on whether it might be more

desirable to adopt an alternative approach under which the Commission

would specify requirements for the organization and administration of

the regional committees and the national coordinator and for the manner

in which they would interact. Parties supporting such an approach were

requested to submit

[[Page 6297]]

specific suggestions for a plan of organizational requirements.

5. The Commission stated that, consistent with its position on

frequency coordinators in the DTV proceeding, it believes it is

important that any coordination system for the broadcast television

industry be open to all affected parties, including low power

television and TV translator stations and the public. It therefore

proposed to require that the membership and processes of the DTV

coordinating committee system be open to all affected parties.

6. The Commission envisioned that the principal function of the DTV

industry coordination system would be to process and evaluate proposals

for changes in DTV and NTSC station facilities and for changes to the

DTV Table of Allotments and to make recommendations to the Commission

on these matters. As suggested by the Caucus, the goal of the

coordination system would be to accommodate reasonable requests for

facility and allotment changes/additions without creating unacceptable

interference to neighboring DTV or NTSC stations. In this regard, the

industry coordinating committees would provide assistance to both

broadcasters and the Commission in assessing the feasibility, in terms

of affects on interference and service areas, of modifications in the

power, antenna height, antenna pattern, or transmitter site of DTV and

NTSC stations, of changes in DTV channels, including negotiated

exchanges on an intra-or inter-market basis, and of proposed new DTV

allotments. In addition to the station/allotment coordination function,

the Commission identified a number of tasks and activities relating to

evaluation of service coverage and interference and selection of

channels that the coordinating committees could possibly perform to aid

in the implementation of DTV service.

7. As indicated above, the national coordinator would be

responsible for maintaining an accurate, up-to-date engineering data

base of allotments, licensed stations, construction permits,

applications and petitions for rule making. This data base, which would

correspond in content and format with the engineering data base

maintained by the FCC, would be used by the regional coordinating

committees in their coordination work. The national coordinator would

also be responsible for maintaining and managing a national system of

methodology and software for use in performing studies and engineering

evaluations. This methodology and software would be required to conform

the Commission's DTV allotment and station modification standards and

to the methodological guidance provided in its OET Bulletin No. 69. The

national coordinator would further be responsible for monitoring the

performance of the regional committees to ensure that studies and

evaluations were being performed in a consistent manner and in

accordance with all applicable policies and regulations.

8. As proposed by the Commission, coordination committee actions

would begin with the submission of a request for facility or allotment

changes or for information on interference and coverage. The request

would be submitted to the appropriate regional coordinating committee

on standard forms, with justification as applicable. The coordinator

would then examine and evaluate the request. The coordinator would also

be responsible for notifying all other stations in the area that would

potentially be affected by the request of its preliminary assessment

and providing them with an opportunity to comment, object or suggest

their own proposals. In this role, the coordinating committee would

also be expected to facilitate negotiations between the party or

parties seeking changes and any stations that would be affected by

those changes. After completing these activities, a committee

coordinator would submit its assessment of the change proposed in the

request and any alternative proposals, as appropriate, to the

Commission, along with its recommendations. Coordinating committee

assessments and recommendations would be limited to the technical

viability of proposals, without regard to whether the requested changes

would be consistent with any other applicable regulations.

9. Consistent with the approach used with land mobile frequency

coordinators and the recommendations of the Caucus, the Commission

proposed to establish certain rules for the processing of coordination

requests by the DTV industry coordination committees. In this regard,

it proposed:

--To require that the DTV industry coordinators accept and process all

requests without discriminating among users;

--To permit the DTV industry coordination committees to charge

reasonable, cost-based fees for providing information to stations and

processing requests for facility and channel changes/additions;

--To require that, as a general practice, the committee coordinators

process requests in the order received and to require that they

maintain logs; and,

--To require that requests be processed in a timely manner.

10. The Commission requested comment on how those who would lead

the DTV coordination committee system should be selected and how it

should provide for the start-up of this organization. It noted that one

approach would be for the Commission to select an entity to head the

national committee organization, and then allow the national

organization to proceed with selection of the regional, in accordance

with that organization's stated plan for the regional committee

structure and administrative system. Another approach would be for the

Commission to select entities to head the national organization and the

regional coordination committees. In selecting parties to lead the

coordination committee system, the Commission proposed to consider a

number of factors, including:

--The extent to which the applicant is representative of all broadcast

television interest groups;

--The applicant's technical knowledge and expertise in performing the

analyses and evaluations used in the coordination process and plans for

the software and methodology to use in accomplishing DTV and NTSC

interference and service area engineering studies on a nationwide

basis; and,

--The applicant's plan for coordinating the DTV service.

11. The Commission stated that it believes it is important to

exercise oversight of the DTV coordination committee system. It stated

that, in addition to the investigation of complaints, it would conduct

regular, perhaps on a six or twelve month basis, and ad hoc discussions

with the regional committees and the national organization to review

their performance, ensure they are conducting evaluations and analyses

in accordance with established policies and regulations, and also to

determine whether any changes might be needed in our policies based on

experience gained through their work. Coordinators found to be

unsatisfactory would be replaced. As suggested by the Caucus, the

Commission's policies in this oversight would be developed on a case-

by-case basis, so that an effective ``common law'' would develop.

Procedural Matters

Paperwork Reduction Act of 1995 Analysis

12. This Notice of Proposed Rule Making has been analyzed with

respect to the Paperwork Reduction Act of 1995,

[[Page 6298]]

Pub. L. 104-13, and found to impose no new or modified information

collection requirements on the public.

Regulatory Flexibility Act Analysis

13. As required by Section 603 of the Regulatory Flexibility Act, 5

U.S.C. 603, the Commission has prepared an Initial Regulatory

Flexibility Analysis (IRFA) of the expected significant economic impact

on small entities by the policies and rules proposed in this Notice of

Proposed Rule Making in ET Docket No. 99-34. Written public comments

are requested on the IRFA. Comments must be identified as responses to

the IRFA and must be filed by the deadlines for comments on the NPRM

provided below.

Need for and Objectives of the Proposed Rule

14. In this rule making action the Commission seeks comment on

proposals for the establishment of an industry DTV coordination

committee system to process and evaluate proposed changes to the Table

of Allotments for digital television (DTV) service and related matters

involving use of the television frequencies. It indicated that it

believes that such an industry committee system may aid its efforts to

provide fair and efficient means for adjusting the DTV Table and for

managing requests for DTV station modifications as the transition to

DTV progresses. In this regard, the Commission indicated that an

industry coordination committee system could serve to improve its

existing procedures by minimizing the number of petitions for rule

making that are filed to change the DTV Table and encouraging the

development of regional solutions to shared problems. A coordination

committee system might also serve to provide assistance in managing any

further requests for modification of analog (NTSC) television stations

during the transition and on other issues such as inter-service sharing

arrangements. The objective of this action is to obtain comment and

information that will assist us in determining whether such an industry

committee system is needed and to establish rules and policies for its

structure, functions, operation, membership selection and oversight by

the Commission.

Legal Basis

15. The proposed action is authorized under Sections 4(i), 7, 301,

303, 307, and 336 of the Communications Act of 1934, as amended, 47

U.S.C. 154(i), 301, 302, 303, 307, and 336.

Description and Estimate of the Number of Small Entities to Which The

Rules Will Apply

I. Definition of a ``Small Business''

16. Under the Regulatory Flexibility Act, small entities may

include small organizations, small businesses, and small governmental

jurisdictions. 5 U.S.C. 601(6). The Regulatory Flexibility Act, 5

U.S.C. 601(3) generally defines the term ``small business'' as having

the same meaning as the term ``small business concern'' under the Small

Business Act, 15 U.S.C. 632. 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 Small Business Administration (``SBA''). Id. According to the SBA's

regulations, entities engaged in television broadcasting may have a

maximum of $10.5 million in annual receipts in order to qualify as a

small business concern. 13 CFR 121.201. This standard also applies in

determining whether an entity is a small business for purposes of the

Regulatory Flexibility Act.

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

small business applies ``unless an agency after consultation with the

Office of Advocacy of the Small Business Administration and after

opportunity for public comment, establishes one or more definitions of

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

publishes such definition(s) in the Federal Register.'' For purposes of

this Notice of Proposed Rule Making, we utilize the SBA's definition in

determining the number of small businesses to which the rules apply,

although we believe that that definition of ``small business''

overstates the number of television broadcast stations that are small

businesses. Further, in this IRFA, we will identify the different

classes of small television stations that may be impacted by the rules

adopted in this Notice of Proposed Rule Making.

II. Issues in Applying the Definition of a ``Small Business''

18. SBA has defined ``annual receipts'' specifically in 13 CFR 104,

and its calculations include an averaging process. We do not currently

require submission of financial data from licensees that we could use

to apply the SBA's definition of a small business. Thus, for purposes

of estimating the number of small entities to which the rules apply, we

are limited to considering the revenue data that are publicly

available, and the revenue data on which we rely may not correspond

completely with the SBA definition of annual receipts.

19. Under SBA criteria for determining annual receipts, if a

concern has acquired an affiliate or been acquired as an affiliate

during the applicable averaging period for determining annual receipts,

the annual receipts in determining size status include the receipts of

both firms. 13 CFR 121.104(d)(1). The SBA defines affiliation in 13 CFR

121.103. While we refer to an affiliate generally as a station

affiliated with a network, the SBA's definition of affiliate is

analogous to our attribution rules. Generally, under the SBA's

definition, concerns are affiliates of each other when one concern

controls or has the power to control the other, or a third party or

parties controls or has the power to control both. 13 CFR

121.103(a)(1). The SBA considers factors such as ownership, management,

previous relationships with or ties to another concern, and contractual

relationships, in determining whether affiliation exists. 13 CFR

121.103(a)(2). Instead of making an independent determination of

whether television stations were affiliated based on SBA's definitions,

we relied on the industry data bases available to us to afford us that

information.

III. Estimates Based on Census and BIA Data

20. According to the Census Bureau, in 1992, there were 1,155 out

of 1,478 operating television stations with revenues of less than ten

million dollars. This represents 78 percent of all television stations,

including non-commercial stations. See 1992 Census of Transportation,

Communications, and Utilities, Establishment and Firm Size, May 1995,

at 1-25. The Census Bureau does not separate the revenue data by

commercial and non-commercial stations in this report. Neither does it

allow us to determine the number of stations with a maximum of 10.5

million dollars in annual receipts. Census data also indicates that 81

percent of operating firms (that owned at least one television station)

had revenues of less than $10 million.

21. We have also performed a separate study based on the data

contained in the BIA Publications, Inc. Master Access Television

Analyzer Database, which lists a total of 1,141 full-power commercial

television stations. It should be noted that the percentage figures

derived from the data base may be underinclusive because the data base

does not list revenue estimates for noncommercial educational stations,

and these are therefore excluded from our calculations based on the

data base.

[[Page 6299]]

Non-commercial stations would be subject to the allotment rules and

policies proposed herein. The data indicate that, based on 1995 revenue

estimates, 440 full-power commercial television stations had an

estimated revenue of 10.5 million dollars or less. That represents 54

percent of commercial television stations with revenue estimates listed

in the BIA program. The data base does not list estimated revenues for

331 stations. Using a worst case scenario, if those 331 stations for

which no revenue is listed are counted as small stations, there would

be a total of 771 stations with an estimated revenue of 10.5 million

dollars or less, representing approximately 68 percent of the 1,141

commercial television stations listed in the BIA data base.

22. Alternatively, if we look at owners of commercial television

stations as listed in the BIA data base, there are a total of 488

owners. The data base lists estimated revenues for 60 percent of these

owners, or 295. Of these 295 owners, 158 or 54 percent had annual

revenues of $10.5 million or less. Using a worst case scenario, if the

193 owners for which revenue is not listed are assumed to be small, the

total of small entities would constitute 72 percent of owners.

23. In summary, based on the foregoing worst case analysis using

census data, we estimate that our rules could affect as many as 1,155

commercial and non-commercial television stations (78 percent of all

stations) that could be classified as small entities. Using a worst

case analysis based on the data in the BIA data base, we estimate that

as many as approximately 771 commercial television stations (about 68

percent of all commercial television stations) could be classified as

small entities. As we noted above, these estimates are based on a

definition that we believe greatly overstates the number of television

broadcasters that are small businesses. Further, it should be noted

that under the SBA's definitions, revenues of affiliates that are not

television stations should be aggregated with the television station

revenues in determining whether a concern is small. The estimates

overstate the number of small entities since the revenue figures on

which they are based do not include or aggregate such revenues from

non-television affiliated companies.

24. The proposed DTV industry coordination committee system could

also affect low power television (LPTV) and TV translator stations. Our

records indicate that currently there are about 1,750 licensed LPTV

stations and 5,050 licensed TV translators. We have also issued about

1,400 construction permits for new LPTV stations. We do not collect

individual station financial data for LPTV and TV translator stations.

However, based on our experience with LPTV and TV translator stations,

we believe that all such stations have revenues of less than $10.5

million. We also seek information on the number of low power stations

that operate commercially and noncommercially.

IV. Alternative Classification of Small Stations

25. An alternative way to classify small television stations is by

the number of employees. We currently apply a standard based on the

number of employees in administering its Equal Employment Opportunity

Rule (EEO) for broadcasting. Thus, radio or television stations with

fewer than five full-time employees are exempted from certain EEO

reporting and recordkeeping requirements. We estimate that the total

numbers of commercial and noncommercial television stations with 4 or

fewer employees are 132 and 136, respectively. These estimates do not

include LPTV stations, for which we do not collect employment data.

Description of Projected Reporting, Recordkeeping and Other Compliance

Requirements

26. The proposals set forth in this action would involve no changes

to reporting, recordkeeping and other compliance requirements beyond

what is already required under the current regulations.

Federal Rules Which Overlap, Duplicate or Conflict With These Rules

27. None.

Significant Alternatives To Proposed Rules Which Minimize Significant

Economic Impact of Small Entities and Accomplish Stated Objectives

28. The DTV industry coordination committee system proposed in this

action would be available for use by all commercial and noncommercial

broadcast television stations desiring to change their DTV facilities

and/or channels or their NTSC facilities and by parties seeking to add

new channel allotments to the DTV Table of Allotments. This

coordination system would be used by existing full service stations,

low power stations and those seeking to establish new stations on a

voluntary basis. Stations would also be allowed to use their own

internal resources or the services of consultants to obtain the

analyses and evaluations that would be performed by the committee

coordinators. We therefore believe that our proposal would result in

the minimum impact on those needing such services. We have, however,

requested comment on whether we should require that facility changes,

channel changes, and new allotments be coordinated through the services

of the industry coordination committee system. In this case, we have

sought to minimize the impact on those using the coordination system by

requiring that charges for services be reasonable and cost based and

that services be provided in a timely manner. At this time we have no

information on the approximate cost of the services that would be

provided by the industry coordinating committees. We also do not know

how many stations may seek such changes, although we expect that most

of the changes sought will be to increase station's DTV service areas.

We expect that the number of requests for addition of new DTV

allotments will be approximately the same as we now receive each year,

i.e. approximately 50 requests.

29. An alternative approach would be to establish specific

allowable charges for services and specific time-periods within which

requests for coordination must be completed. However, we generally

believe that it would be difficult to establish a schedule of

appropriate fees and required completion time-periods due to the great

variation in complexity of the services to be performed and the time

and resources needed to fulfill the requests. We seek comment and

suggestions for alternatives that would further reduce any impact that

an industry coordination committee system would have on those seeking

to modify existing stations or to establish new stations.

30. As we observed in the DTV proceeding, implementation of DTV

service will affect low power television (LPTV) and TV translator

stations. Total investment in the LPTV and TV translator facilities is

estimated to be about $150--$250 million. Studies by our staff indicate

that there is not sufficient spectrum to accommodate both low power

stations and DTV stations. These studies estimate that up to about one-

third of all LPTV stations and one-quarter of all TV translators may

have to cease operation to make way for DTV stations. In general, most

LPTV stations within major markets will be affected, while rural

operations will be affected to lesser degrees. We generally believe

that the industry coordinating committee system would serve to provide

a relatively low-cost

[[Page 6300]]

source of assistance to LPTV and TV translator stations that will need

to modify their existing operations or seek displacement channels to

avoid interference to DTV service. We seek comment on whether there are

specific actions we could take in establishing the industry

coordination system to further aid low power stations.

Comments

31. Pursuant to Sections 1.415 and 1.419 of the Commission's rules,

47 CFR 1.415, 1.419, interested parties may file comments on before

March 29, 1999, and reply comments on or before April 28, 1999.

Comments may be filed using the Commission's Electronic Comment Filing

System (ECFS) or by filing paper copies. See Electronic Filing of

Documents in Rule Making Proceedings, 63 FR 24121, published May 1,

1998.

32. Comments filed through the ECFS can be sent as an electronic

file via the Internet to http://www.fcc.gov/e-file/ecfs.html>.

Generally, only one copy of an electronic submission must be filed. If

multiple docket or rule making numbers appear in the caption of this

proceeding, however, commenting parties must transmit one electronic

copy of the comments to each docket or rule making number referenced in

the caption. In completing the transmittal screen, commenting parties

should include their full name, Postal Service mailing address, and the

applicable docket or rule making number. Parties may also submit an

electronic comment by Internet e-mail. To get filing instructions for

e-mail comments, commenting parties should send an e-mail to

[email protected], and should include the following words in the body of the

message, ``get form .'' A sample form and

directions will be sent in reply.

33. Parties who choose to file by paper must file an original and

four copies of each filing. If more than one docket or rule making

number appear in the caption of this proceeding, commenting parties

must submit two additional copies for each additional docket or rule

making number. All filings must be sent to the Commission's Secretary,

Magalie Roman Salas, Office of the Secretary, Federal Communications

Commission, 445 12th St. SW, Room TW-A325, Washington, DC 20554.

34. Parties who choose to file by paper should also submit their

comments on diskette. These diskettes should be submitted to: Alan

Stillwell, Federal Communications Commission, Office of Engineering and

Technology, 2000 M Street, NW, Suite 480, Washington, DC 20554C. Such a

submission should be on a 3.5 inch diskette formatted in an IBM

compatible format using WordPerfect 5.1 for Windows or compatible

software. The diskette should be accompanied by a cover letter and

should be submitted in ``read only'' mode. The diskette should be

clearly labeled with the commenting party's name, proceeding (including

the docket number in this case [ET Docket No. 99-34], type of pleading

(comment or reply comment), date of submission, and the name of the

electronic file on the diskette. The label should also include the

following phrase ``Disk Copy--Not an Original.'' Each diskette should

contain only one party's pleadings, preferably in a single electronic

file. In addition, commenting parties must send diskette copies to the

Commission's copy contractor, International Transcription Service,

Inc., 1231 20th Street, NW, Washington, DC 20037.

Ex Parte Presentations

35. This is a permit-but-disclose notice and comment rule making

proceeding. Ex parte presentations are permitted, except during any

Sunshine Agenda period, provided they are disclosed as provided in the

Commission's rules. See generally 47 CFR 1.1200(a), 1.1203, and 1.1206.

Ordering Clauses/Authority

36. It is ordered that the Commission's Office of Public Affairs,

Reference Operations Division, Shall send a copy of this Notice of

Proposed Rule Making, including the Initial Regulatory Flexibility

Analysis, to the Chief Counsel for Advocacy of the Small Business

Administration. Actions herein are taken pursuant to authority

contained in Sections 4(i), 7, 301, 303, 307, and 336 of the

Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 301,

302, 303, 307, and 336.

37. For additional information concerning this matter, contact Alan

Stillwell, Office of Engineering and Technology, (202) 418-2470.

List of Subjects in 47 CFR Parts 73 and 74

Television.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 99-3092 Filed 2-8-99; 8:45 am]

BILLING CODE 6712-01-P