[Federal Register: June 17, 2004 (Volume 69, Number 116)]
[Rules and Regulations]
[Page 33869-33871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn04-17]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 74
[ET Docket No. 01-75; FCC 04-104]
Revision of Broadcast Auxiliary Services
AGENCY: Federal Communications Commission.
ACTION: Final rule; denial of application for review of decision.
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SUMMARY: This document addresses the application for review filed by
the Society of Broadcast Engineers, Inc. The Application responds to
the denial of SBE's request for a second stay of the rules for
coordination of fixed aural and video stations in the Broadcast
Auxiliary Service (BAS) adopted in the Report and Order. The Commission
affirms the Office of Engineering and Technology's (OET) Order (Denial
Order) denying SBE's request (Second Request) seeking an additional
six-month stay of the effective date of those rules. The Commission
agrees with OET's determination that an additional stay of the BAS
coordination rules is not in the public interest. The Commission denies
SBE's application for review.
FOR FURTHER INFORMATION CONTACT: James Miller, Office of Engineering
and Technology, (202) 418-7351.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
adopted April 21, 2004, and released May 4, 2004. The full text of this
document is available for inspection and copying during normal business
hours in the FCC Reference Information Center, Room CY-A257, 445 12th
Street, SW., Washington, DC 20554. The complete text of this document
also may be purchased from the Commission's copy contractor, Qualex
International, 445 12th Street, SW., Room, CY-B402, Washington, DC
20554. The full text may also be downloaded at: http://www.fcc.gov.
Alternative formats are available to persons with disabilities by
contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.
Summary of the Memorandum Opinion and Order
1. The Order denies the application for review (Application) filed
by the Society of Broadcast Engineers, Inc. (SBE) who was seeking a
second stay of the rules for coordination of fixed aural and video
stations in the BAS adopted in the Report and Order, 68 FR 12744, March
17, 2003. In the Report and Order, the Commission adopted coordination
procedures for fixed Aural BAS stations operating on frequencies above
944 MHz and fixed Television BAS stations operating on frequencies
above 2110 MHz under part 74 of the rules. The Commission adopted these
procedures to conform the coordination procedures for fixed BAS, and
Cable Television Relay Service (CARS) under parts 74 and 78, with those
already in effect for Fixed Microwave Services (FS) under Sec.
101.103(d) of the rules. It found that the FS procedures were
appropriate for fixed BAS and CARS, stating that uniform procedures for
bands shared among these services are necessary to promote spectrum
efficiency and to minimize the possibility of harmful interference.
Because these procedures were already in effect for Aural and TV BAS
stations in the bands 6425-6525 MHz and 17700-19700 MHz, the new rules
only affected fixed BAS in the bands 944-952 MHz (950 MHz), 2450-2583.5
MHz (2.5 GHz), 6875-7125 MHz (7 GHz), and 12700-13250 MHz (13 GHz).
2. During the six-month stay, SBE requested a blanket waiver of
application fees for BAS applications filed to provide information
missing from the ULS, in order to encourage the filing of such
applications. On September 3, 2003, the FCC's Office of Managing
Director (OMD) dismissed SBE's request for relief and denied the
request for waiver, stating that the Commission may only consider such
requests filed by individual applicants pertaining to their own
applications in accordance with Sec. 1.1117, and, moreover, that SBE
had not established good cause for a waiver of application fees.
3. SBE sought a further stay of the Commission rules on October 1,
2003. In its Second Request, SBE generally reiterated the reasons set
forth in its Initial Request and argued for an additional six-month
stay. SBE provided updated figures suggesting that approximately 50% of
fixed stations in the 7 GHz and 13 GHz bands do not have receive site
coordinates listed in the ULS. SBE noted that many BAS licensees had
waited for a determination of the outcome of its fee waiver request
before filing applications to provide the receive site information. SBE
stated that it had publicized the September 3, 2003, denial of the
waiver request and had taken more aggressive steps to urge BAS
licensees to complete and correct the license record for their
facilities, but that the initial six-month stay had proven
insufficient. SBE requested the additional six months as a ``final
opportunity'' for BAS licensees to supply the information. The National
Spectrum Managers Association (NSMA), in its Opposition to the
[[Page 33870]]
Request for Extension of Temporary Stay (Opposition), opposed an
additional stay, asserting that the institution of new coordination
procedures would best satisfy SBE's concerns about appropriate
interference analysis, whereas delay would not address or satisfy SBE's
concerns about database completeness and accuracy. NSMA argued that the
opportunity for response in the coordination process would most
effectively generate interaction and data sharing and address SBE's
concerns. NSMA conceded that the database inaccuracies could lead to
inaccurate interference analysis before the notification is initiated,
but emphasized that the bilateral process would address the possibility
of missing or inaccurate BAS path information. SBE, in its reply to the
Opposition, asserted that NSMA's experience with the more accurate
databases used by the FS under part 101 was not relevant in evaluating
the additional time needed to address deficiencies with Aural and TV
BAS information in the ULS. SBE objected to NSMA's suggestion that the
coordination under the new rules could proceed by relying on responses
from broadcasters contacted to address potential missing or inaccurate
BAS information as suggested by NSMA. However, SBE stated in its reply
that it would be reasonable to proceed with the new coordination rules
if, after an additional six months, the database was still inaccurate.
4. OET applied the Commission's four-part test for evaluating stay
requests and issued its Denial Order, 18 FCC Rcd 21134, (2003), denying
SBE's Second Request for stay, finding it was not warranted, and
ordering that the coordination rules would go into effect on October
16, 2003. In applying the four-part test, OET considered whether: the
stay would likely succeed on its merits; irreparable harm would be
suffered if a stay was not granted; other interested parties would be
harmed if the stay were granted; and the public interest would favor
granting of the stay. OET concluded that while the database concerns
raised again by SBE might remain a concern, there was no indication
that additional time would cure these issues. OET noted that licensees
had already had nearly one year since the rules were first adopted and
released until the expiration of the first stay. Moreover, OET noted
that licensees had six weeks from notice of the waiver denial to the
end of the stay to file or correct information for the ULS. OET
concluded that the database issues would not seriously affect the
efficacy of the coordination process and harm licensees subject to
these rules. Finally, OET found that further delay in the application
of the coordination procedures would not be in the public interest,
because it would unnecessarily delay the efficiency and protection
benefits offered by these procedures.
5. The Commission deny SBE's request to review and reverse the
Denial Order, because any remaining concerns to resolve database
inaccuracies do not warrant further delay of the benefit of the rules.
In the application for review, SBE urges review of the Denial Order,
arguing that a further stay of the coordination rules is warranted
because, contrary to OET's conclusions in the Denial Order, an
additional six-month extension would cure existing database issues, and
prior coordination under the adopted rules cannot proceed until the
database inaccuracies are corrected. SBE, while acknowledging that
licensees were not required to wait for the resolution of the request
for a blanket waiver of application fees for BAS applications, argues
that licensees' delay in complying with the Report and Order until the
resolution of the fee waiver request on September 3, 2003 was
reasonable. SBE also argues that although OET pointed out in its Denial
Order that the coordination rules adopted in the Report and Order were
released to the public on November 13, 2002, the rules were not
published in the Federal Register until March 17, 2003. Finally, SBE
argues that the Commission cannot conclude that there is any benefit or
efficiency to be gained from letting the coordination rules take effect
under the present circumstances. No comments were filed in response to
the application for review.
6. The Commission disagree with SBE and, thus, deny its Application
to reverse the Denial Order. Commission rules require that applications
for review concisely and plainly state the questions presented for
review with reference, where appropriate, to the findings of fact or
conclusions of law and which of the five factors identified by the
rules warrant Commission consideration. SBE asserts that OET made
various erroneous factual conclusions. However, we find no ``erroneous
finding as to any important or material question of fact,'' or other
factor that warrants review. We agree with the substantive conclusions
of OET stated in the Denial Order, and find that OET correctly
determined that granting SBE's Second Request for stay was not
warranted. OET correctly concluded that the request was not likely to
prevail on the merits; that irreparable harm was not likely to result
if the stay was denied; and that the public interest did not favor
granting the stay, and it properly denied the request.
7. The Commission believes that, while further improvements of the
database are desirable, as raised by SBE in its Application, there is
no indication that additional time would result in the resolution of
the inaccuracies complained of, nor that a need is demonstrated by the
likelihood of irreparable harm if these issues are not resolved prior
to the coordination rules coming into effect. SBE acknowledges in its
reply comments to its Second Request that even if the Commission should
grant additional time, there is a possibility database inaccuracies
would remain unresolved. It further agrees that at some point the
coordination rules should enter into effect, irrespective of any
remaining database inaccuracies. This admission is counter to SBE's
arguments that additional time would cure the remaining database
inaccuracies. Further, SBE's admission that the rules should go into
effect even if the inaccuracies are not completely resolved (whether on
October 16, 2003 or six months later) supports our conclusion that OET
correctly found that the efficacy of the coordination rules need not be
seriously impacted by possible database inaccuracies. Moreover, whereas
OET found that the potential benefit of database corrections weighed
favorably in the context of a brief delay in the implementation of our
rules and an anticipated improvement in the database, we note that the
grant of additional extensions would result in a lengthy period of time
between the adoption and effectiveness of the new coordination
procedures, with little apparent benefit to be derived, based on our
experience with the last stay. Whereas OET may have considered the
probable effect of the initial extension of time in a light most
favorable to SBE, we are not obliged to do so, and activity during the
six-month stay confirms that the case has not been made for any further
delay.
8. SBE raises the issue of whether it was reasonable for licensees
to wait on a determination of SBE's blanket fee waiver request before
addressing database inaccuracies. We find this concern is not material
and does not warrant review of the Denial Order. OET correctly states
that licensees were not barred from taking steps to address the
database inaccuracies during the initial six-month stay until the fee
waiver request was resolved, because if the fee waiver was granted
their application fees would have been refunded. In any event, the
grant or denial of the blanket fee waiver would not have cured the
issues that were argued to support the
[[Page 33871]]
Initial Request, or relieved licensees from the need to prepare their
applications. Whether or not licensees' application fees would have
been refunded, those applications would presumably still have had to be
prepared and filed to cure the database concerns. Moreover as OET
indicated, even after the disposition of the blanket fee waiver,
individual licensees could have filed their own requests for fee
waivers, if a waiver of application fees was compelling. It seems
prudent and reasonable that licensees electing to wait would have
prepared for filing in anticipation of the resolution of the waiver
request, and filed during the six week window remaining between the
September 3, 2003, determination of SBE's fee waiver request and the
last day of the stay, October 15, 2003. In fact, as OET notes,
Commission records indicate the modest increase in the filing of
applications for Aural and TV BAS modifications during the stay,
possibly attributable to filings for completion and correction of
receive site information, primarily occurred in the last month of the
stay. We infer from this that even parties who waited prepared to file
during the stay period, and in fact did complete filings to complete or
correct receive site information, and that our actions taken in this
proceeding to address licensees' filings to database inaccuracies have
been appropriate but do not warrant further delay.
9. The Commission agrees with OET that the continued existence of
incomplete and inaccurate records in the ULS, while undesirable, is not
fatally detrimental to the efficacy of coordination procedures nor
otherwise likely to result in irreparable harm due to interference to
existing facilities, as stated in the Stay Order, 68 FR 41284, July 11,
2003. We agree with OET that coordination procedures using appropriate
conservative default criteria, as discussed in the Stay Order, can
proceed successfully even with incomplete or inaccurate database
information. The procedures provide a practicable opportunity for all
potentially affected parties to respond to the proposed coordination
request to address missing or corrective information where needed,
before the facilities are formally subject to an application. As the
Denial Order clarified, consistent with the coordination requirement
for full cooperation and reasonable effort among all parties in
resolving potential conflicts, existing licensees have a responsibility
to respond whenever a notification contains any omissions or errors
regarding their facilities that could lead to potential interference.
It will be the initiating party's responsibility to provide existing
licensees with the complete information used to characterize the
notified party's facilities for the engineering studies and analyses
upon which the coordination is based. Further, where data is missing or
incorrect in the notification, and the complete or corrective data is
brought to the initiating party's attention via response, it will be
the initiating party's responsibility to conduct any engineering
studies and analyses required to reassess the impact on the existing
facilities, as newly documented, and reinitiate coordination, as
needed.
10. Finally, in view of the above, the Commission agrees with OET
that further delay in the application of the coordination procedures
for Aural and TV BAS is not in the public interest, because it will
unnecessarily delay the efficiency and protection benefits offered by
these procedures. These new procedures afford all potentially affected
existing licensees sufficient opportunity to respond to each proposal,
and are sufficient to avert harmful interference to or from existing
facilities. The effect of these rules will enable parties to identify
complete and accurate information on existing facilities. Thus, while
the initial stay was a reasonable response towards the goal of
achieving a complete and accurate database, it now appears that further
delay would not significantly advance that goal.
11. As the Denial Order discussed, under these coordination rules,
licensees can be expected to act in their own self-interest to avoid
interference. The coordination process provides an opportunity for a
potentially affected licensee to respond or otherwise provide
corrective information regarding the consideration of its facilities,
or the effect of the applicant's new facilities on its facilities.
However, in the absence of such a response, the applicant will be
deemed to have made reasonable efforts to coordinate and may file the
application. The Commission recognizes that if the licensee's receive
information in the database is incomplete or incorrect and the licensee
fails to provide corrective information during coordination, there
could result a grant of new facilities that could ultimately cause
interference to an existing licensee. As indicated above, however, we
believe that licensees will act in their own self-interest and ensure
that the licensee's receive information in the database is complete and
correct or provide complete and correct information in response to the
applicant's notification.
12. The Commission, therefore, also affirms the action taken in the
Denial Order to encourage BAS licensees to file applications for minor
modification where needed to complete receive site data that is missing
in the ULS. The Commission will continue to allow the filing of such
applications without frequency coordination, provided the application
supplies only missing receive site data. Receive site data may include
parameters such as site geographic coordinates, site elevation above
mean sea level, and antenna height, beamwidth, gain, manufacturer, and
model number. Further, the application must include a showing
demonstrating that the station was licensed at a time when receive site
information was not required, or documenting that the information now
missing was previously licensed or provided under application to the
FCC. The information provided must also be consistent with any data
already in the database, such as transmit azimuth or receive site data.
The filing of receive site information without coordination, where it
is missing under circumstances as described above, is appropriate and
will continue to be permitted.
Ordering Clauses
Pursuant to sections 4(i), 303(c), 303(f), 303(g), 303(r), and
309(j), of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 303(c), 303(f), 303(g), 303(r) and 309(j), the application for
review filed by the Society of Broadcast Engineers is denied.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-12945 Filed 6-16-04; 8:45 am]
BILLING CODE 6712-01-P