*Pages 1--70 from Microsoft Word - 27136.doc* Federal Communications Commission FCC 03- 97 Before the Federal Communications Commission Washington, D. C. 20554 In the matter of Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range; Amendment of the Commission’s Rules to Authorize Subsidiary Terrestrial Use of the 12.2- 12.7 GHz Band by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide a Fixed Service in the 12.2- 12.7 GHz Band ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ET Docket No. 98- 206 RM- 9147 RM- 9245 FOURTH MEMORANDUM OPINION AND ORDER Adopted: April 22, 2003 Released: April 29, 2003 By the Commission: Commissioner Martin approving in part, dissenting in part, and issuing a statement. TABLE OF CONTENTS Paragraph Number I. INTRODUCTION ........................................................................................................................... 1 II. EXECUTIVE SUMMARY ............................................................................................................. 2 III. BACKGROUND ............................................................................................................................. 3 IV. DISCUSSION A. DBS Issues............................................................................................................................. 10 1. Legal Authority and Regulatory Status a. Compliance with Statutes and Rules....................................................................... 14 b. Other Matters .......................................................................................................... 40 2. DBS/ MVDDS Sharing Rules ........................................................................................ 44 3. Implementation Issues ................................................................................................... 64 B. Multichannel Video Distribution and Data Service Rules 1. Dismissal of Pending Applications................................................................................ 73 2. Operational Limits ......................................................................................................... 86 C. NGSO FSS Issues .................................................................................................................. 93 1. MVDDS Limits ............................................................................................................. 94 2. NGSO FSS Limits ....................................................................................................... 103 3. MVDDS and NGSO FSS Information Sharing ........................................................... 109 V. PROCEDURAL MATTERS A. Final Regulatory Flexibility Certification............................................................................ 112 1 Federal Communications Commission FCC 03- 97 4 markets, spectrum otherwise allocated to commercial use. 9 The RLBSA legislation also requires that the Commission ensure that no facility licensed or authorized to deliver such local broadcast television signals “causes harmful interference to the primary users of that spectrum or to public safety spectrum use.” 10 5. On November 29, 2000, the Commission adopted the First R& O and Further Notice in the subject proceeding. 11 Among other decisions in the First R& O, the Commission made the threshold finding that MVDDS can operate in the 12.2- 12.7 GHz band under the existing primary Fixed Service (FS) allocation without causing harmful interference to incumbent BSS operations. 12 The Commission also decided to permit NGSO FSS to operate service downlinks on a co- primary basis with DBS and MVDDS in the same band. 13 At present the 12.2- 12. 7 GHz band is used by DBS under the primary BSS allocation. With the Further Notice, the Commission set in motion the final regulatory process for licensing MVDDS. In light of these determinations, the Commission concluded that it had met the deadline for action set forth in the RLBSA. 6. Furthermore, the Commission concluded that it would define MVDDS technical rules and requirements in a later order that would protect BSS operations and that it could establish criteria that would permit MVDDS/ NGSO FSS sharing. To that end, the Commission sought detailed comment in the Further Notice regarding the technical sharing criteria between MVDDS and BSS and NGSO FSS, and on the MVDDS service, technical and licensing rules under Part 101 of the Commission's Rules. Finally, the Commission requested comment on the disposition of the pending 12 GHz applications filed by Northpoint, Pegasus, and SRL. 7. On December 21, 2000, Congress enacted Section 1012, Prevention of Interference to Direct Broadcast Satellite Services, of the Commerce, Justice, State and Judiciary Appropriations Act, H. R. 5548. 14 Section 1012 required the Commission to arrange for independent testing of “any terrestrial service technology proposed by any entity that has filed an application to provide terrestrial service” in the 12 GHz band. The Commission selected The MITRE Corp. (MITRE) to conduct this testing. MITRE filed its report detailing its testing on April 18, 2001. 15 9 Id. While this provision does not identify the 12 GHz band specifically, MVDDS is one alternative to satisfy this demand in rural and underserved local television markets. See also, Letter from Senator Ted Stevens, et al., Committee on Commerce, Science, and Transportation to Chairman, William E. Kennard, Federal Communications Commission, dated July 27, 2000. 10 Act of Nov. 29, 1999, Pub. L. 106- 113, 113 Stat. 1501, 1501A- 544 to 1501A- 545. 11 Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range, First Report and Order and Further Notice of Proposed Rule Making, FCC 00- 418, ET Docket No. 98- 206, 16 FCC Rcd 4096 (2000) (First R& O and Further Notice). 12 Id. 13 Id. A service downlink is a data link from a satellite to an earth station which carries radio communications other than tracking, telecommand and control signals. 14 Launching Our Communities' Access to Local Television Act of 2000 (" LOCAL TV Act"), Pub. L. No. 106- 553, § 1012 (entitled "Prevention of Interference to Direct Broadcast Satellite Services"), 114 Stat. 2762, 2762A- 344 (2000). 15 The MITRE Corporation, “Analysis of Potential MVDDS Interference to DBS in the 12. 2- 12.7 GHz Band” (filed April 18, 2001) (MITRE Report). The Commission placed the MITRE Report on public notice on April 23, 2001. Comments responsive to the study were due on May 15, 2001 and replies were due on May 23, 2001. 4 Federal Communications Commission FCC 03- 97 5 8. On April 11, 2002, the Commission adopted the Memorandum Opinion and Order and Second Report and Order (Second R& O) in this proceeding. 9. Six parties filed petitions for reconsideration of the Second R& O, three parties filed oppositions to these petitions, and seven parties filed replies/ comments. 16 In addition, appeals of the Second R& O have been filed with the circuit court of appeals for the District of Columbia in this proceeding. 17 IV. DISCUSSION A. DBS Issues 10. In the memorandum opinion and order portion of the Second R& O, the Commission concluded that the decision to authorize MVDDS in the 12 GHz band met the rule making requirements of the Administrative Procedure Act (APA). 18 The Commission found that the decision to authorize MVDDS to share the 12 GHz band complies with the harmful interference prevention requirements and legislative intent of the Rural Local Broadcast Signal Act (RLBSA) and Satellite Home Viewer Improvement Act (SHVIA). 19 The Commission found that the decision to authorize MVDDS in the 12 GHz band instead of alternative frequency bands was carefully considered and rationally explained based upon all the available information in the record. 20 The Commission affirmed that MVDDS is authorized on a primary, rather than secondary, basis under the existing primary FS allocation for the 12 GHz band but must protect DBS from harmful interference. 21 The Commission concluded that the adopted rules would limit the interference potential from MVDDS to a level that does not rise to harmful interference under our rules. 22 In the absence of harmful interference from MVDDS, the Commission found that the primary or co- primary status of either DBS or NGSO FSS would not be derogated. 23 The Commission found that the MVDDS rules are technologically neutral. 24 The Commission noted that the DBS/ NGSO FSS unavailability allowances described in ITU Recommendation ITU- R BO. 1444 are inappropriate for MVDDS. 25 The Commission dismissed, as untimely, a petition for consolidation filed by EchoStar and DIRECTV that urged us to declare other frequency bands available for MVDDS in lieu of the 12.2- 12. 7 GHz band. 26 The Commission found that the petition, although styled as a petition to 16 A list of the parties filing petitions, oppositions, replies and comments is provided in Appendix A. 17 Northpoint and Pegasus, among others, have filed appeals challenging our decisions in the Second R& O that are currently pending with the D. C. Circuit Court of Appeals (D. C. Court Docket No. 02- 1194). The Court has consolidated these cases and, pursuant to a motion filed by the Commission, is holding the cases in abeyance pending our action herein on the Pegasus petition for reconsideration. 18 Second R& O at ¶¶ 14- 16. 19 Id. at ¶¶ 17- 24. 20 Id. at ¶¶ 25- 36. 21 Id. at ¶¶ 26 and 28. 22 Id. at ¶ 19. 47 C. F. R. Section 2.1 defines harmful interference as “ … interference which … seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service …” 23 Second R& O at ¶ 26. 24 Id. at ¶ 39. 25 Id. at ¶ 41. 26 Id. at ¶ 48. 5 Federal Communications Commission FCC 03- 97 6 consolidate three rulemaking proceedings, essentially asked us to reconsider our threshold decision in the First R& O to authorize MVDDS in the 12 GHz band. 27 11. In the report and order portion of the Second R& O, the Commission developed requirements that it concluded would limit the amount of increased DBS unavailability due to the presence of MVDDS. DBS satellites are designed to provide very reliable service with typical service availabilities on the order of 99.8- 99.9%. 28 Thus unavailability or service outage generally ranges from 0.1- 0.2%. This small amount of unavailability primarily occurs during heavy rain events due to DBS signal fading. In the Second R& O, using a prescribed methodology, the Commission predictively modeled, for various areas, rain rates and the amount of outage a typical DBS subscriber could expect to incur in any given year. Using that as a baseline, the Commission developed criteria that would limit the amount of increased DBS unavailability due to the presence of MVDDS to a negligible level. 29 The Commission decided that the best means of controlling any effect of MVDDS on DBS would be by limiting the equivalent power flux density (EPFD) of an MVDDS transmit signal at a DBS receiver. Using an increase of 10% DBS unavailability as a starting point, 30 the Commission developed rules that provide for four regional EPFD limits that MVDDS providers are required to meet. 31 The Commission adopted a maximum power limit of 14 dBm per 24 megahertz Effective Isotropic Radiated Power (EIRP) for MVDDS. 32 The Commission specified an EPFD limit for each of four regions across the United States. 33 The regions and corresponding EPFD limits are: East: -168.4 dBW/ m 2 /4kHz, Midwest: -169.8 dBW/ m 2 /4kHz, Southwest: -171.0 dBW/ m 2 /4kHz, and Northwest: -172.1 dBW/ m 2 /4kHz. 34 The Commission decided that the unavailability allowance ascribed to MVDDS is in addition to the unavailability allowance ascribed to NGSO FSS operations in the 12.2- 12.7 GHz band. 35 Finally, because the Commission recognized that there could be anomalous situations, the Commission adopted a “safety valve” by which we will consider requests to adjust the EPFD for specific locations should a DBS provider demonstrate a tangible detrimental impact on DBS caused by MVDDS operations. 36 12. In addition, the Commission decided that MVDDS providers must site and design transmitting antennas to avoid causing harmful interference to existing DBS customers of record. 37 The Commission required the MVDDS operator to ensure that the prescribed EPFD limits are not exceeded at any DBS customer of record location, and to conduct a survey of the area around their proposed transmitting antenna site to determine the location of all DBS customers who may potentially be affected by the introduction of the MVDDS service. 38 The Commission required the MVDDS operator to notify 27 Id. at ¶ 48. 28 Id. at Appendix G 29 Id. at ¶ 68. 30 Id. at ¶ 68. 31 Id. at ¶¶ 68, 83. 32 Second R& O at ¶ 68. 33 Id. at ¶¶ 68, 83. 34 Id. at ¶ 83. 35 Id. at ¶ 77. 36 Id. at ¶ 83. 37 Id. at¶ 88. DBS customers of record are those who had their DBS receive antennas installed prior to or within the 30 day period after notification to the DBS operator by the MVDDS licensee of the proposed MVDDS transmitting antenna site. See 47 CFR § 101.1440( a). 38 Id. at¶ 89- 90. See also rule section 101. 1440 (“ MVDDS protection of DBS”) which outlines the procedures an MVDDS entity is to follow to protect DBS customers prior to operating a transmitter. 6 Federal Communications Commission FCC 03- 97 7 the DBS providers of the operational characteristics of its transmitter, service area and site survey results at least 90- days prior to commencement of transmission from their facility (“ coordination notification”). 39 The Commission required the DBS providers, no later than 45 days after receiving the coordination notification, to identify any new subscribers that signed up within 30 days after the receipt of the MVDDS notice and any areas where the DBS providers believes that the EPFD values may be exceeded. 40 The Commission required that the MVDDS licensee must satisfy all complaints of interference caused to a DBS customer of record which are received during a one year period 41 after commencement of operation of the MVDDS transmitting facility or cease operation if it is demonstrated that the DBS customer is receiving harmful interference from MVDDS or if the MVDDS signal exceeds the permitted EPFD levels at the DBS customer location. 42 13. Concerning new DBS customers who subscribe after the commencement of MVDDS operation in a given area, the Commission also found that those new DBS customers could take modest self- mitigation measures such as siting and shielding or using larger receive antennas to account for the presence of an MVDDS signal. 43 Because such steps are simple, effective and consistent with existing DBS installation practices, the Commission concluded that it is reasonable to expect DBS licensees to incorporate the presence of an MVDDS signal into their installation guidelines for new DBS customers. 44 1. Legal Authority and Regulatory Status a. Compliance with Statutes and Rules 14. Positions of the Parties. EchoStar Satellite Corporation and DIRECTV, Inc. (EchoStar and DIRECTV), Satellite Broadcasting and Communications Association (SBCA), and SES Americom, Inc. (SES Americom) assert that the MVDDS technical rules the Commission adopted are unlawful because they do not protect the DBS service from harmful interference as required by various Congressional mandates and the Commission’s own rules. In particular, the petitioners allege that our technical rules violate the provisions of the Rural Local Broadcast Signal Act (RLBSA) and the Satellite Home Viewer Protection Act (SHVIA) 45 that prohibit harmful interference to DBS. 46 Petitioners argue that by using a 10% increase in unavailability as a starting point, rather than as a “ceiling,” for establishing the EPFD limits the Commission adopted, the Commission did not establish a firm limit on the amount of increased unavailability that MVDDS could cause to DBS operations. 47 Petitioners argue that the Commission thus 39 Second R& O at ¶92. 40 Second R& O at ¶92. 41 To minimize the potential for false claim reporting against MVDDS, we adopted a one- year cut off period for such complaints. Second R& O at ¶93. 42 Second R& O at ¶93. 43 Id. at ¶ 92. 44 Id. at ¶ 92. 45 See footnotes 6 and 8, Supra. Satellite Home Viewer Improvement Act Of 1999 (SHVIA)/ Rural Local Broadcast Signal Act (RLBSA). See Pub. L 106- 113, 113 STAT. 1501, 1501A- 544 TO 101A- 545, Act of Nov. 29, 1999 (enacting S. 1948, including the SHVIA and RLBSA. Titles I and II of the Intellectual Property and Communications Omnibus Reform Act of 1999). 46 EchoStar, DIRECTV joint petition at 2; SBCA petition at 7; SES Americom petition at 13. 47 E. g., EchoStar, DIRECTV joint petition at 5. EchoStar and DIRECTV state that they have consistently argued that the aggregate maximum increase in unavailability from all other competing uses of the 12 GHz band should be no more than 10 percent, with a limit of 2. 86 percent from any one provider. They assert that even if the Commission concludes that it is permissible for an additional 10 percent increase in unavailability to be attributed to MVDDS, (continued....) 7 Federal Communications Commission FCC 03- 97 8 effectively failed to define what constitutes harmful interference in a manner that can be either discerned or relied upon by DBS providers and customers. As a consequence, petitioners broadly assert that the Commission failed to comply with the cited statutes that require us to make a finding of no harmful interference to DBS. SBCA argues that this lack of definition weakens the interference protection rights of DBS customers because they will not be able to demonstrate that they are receiving harmful interference if the Commission has not identified a quantitative measure. 48 EchoStar and DIRECTV also argue that our technical rules are arbitrary and capricious because the Commission ignores prior Commission decisions that found that ubiquitous satellite and terrestrial services could not share the same band and the Commission failed to explain how the adopted technical limits would allow two such services to do so in this case. 15. EchoStar and DIRECTV, SBCA, and SES Americom also object to our decision that new DBS customers are required to take measures, on an as- needed basis, to avoid receiving harmful interference from pre- existing MVDDS transmitters. Petitioners contend that these self- mitigation responsibilities effectively render DBS secondary to MVDDS. Petitioners argue that the self- mitigation rules are unlawful because they violate the provisions of the RLBSA and SHVIA that prohibit harmful interference to DBS as well as various sections of our rules that prohibit harmful interference to the DBS service and ignore the overall 20- year history of the original DBS allocation. 49 Specifically, petitioners argue that the MVDDS/ DBS sharing rules violate footnote S5. 490 of the U. S. Table of Allocations concerning harmful interference caused by terrestrial radio communication services. 50 EchoStar and DIRECTV argue that the MVDDS/ DBS sharing rules violate section 47 C. F. R. § 101.147( p) of our rules concerning interference caused by fixed point- to- point microwave stations. 51 SBCA also argues that it is unlawful to make DBS licensees responsible for protecting DBS receivers from interference since they often don’t do these installations and further that our rules will inhibit self- installation by DBS customers who might have to seek engineering guidance to protect themselves from MVDDS interference. 52 16. In support of these arguments, SBCA claims that our DBS implementation plan effectively limited the co- primary status of FS to five years, after which FS operations were to become secondary to DBS. 53 SBCA contends that the history of the DBS allocation combined with the cited rules and (... continued from previous page) the Commission’s decision to use 10 percent as a starting point for identifying technical limits does not provide a meaningful standard. Id. at 6. 48 SBCA petition at 12- 13. 49 EchoStar, DIRECTV joint petition at 3; SBCA petition at 3; SES Americom petition at 6. 50 Footnote S5. 490 states: “… in the band 12. 2- 12.7 GHz, existing and future terrestrial radiocommunication services shall not cause harmful interference to space services in conformity with the broadcasting- satellite Plan for Region 2 contained in Appendix S30.” 51 EchoStar, DIRECTV joint petition at 3, citing 47 C. F. R. § 101.147( p) that states: “The Commission has allocated the 12. 2- 12. 7 GHz band for use by the broadcasting- satellite service. Private operational fixed point- to- point microwave stations authorized after September 9, 1983, will be licensed on a non- interference basis and are required to make any and all adjustments necessary to prevent interference to operating domestic broadcasting- satellite systems.” [Our emphasis herein]. 52 SBCA cites to 47 C. F. R. § 101. 1440( e) which states in pertinent part: “Beginning thirty days after the DBS licensees are notified of a potential MVDDS site under (d)( 1), the DBS licensees have the responsibility of ensuring that all future installed DBS receive antennas on its system are located in such a way to as to avoid the MVDDS signal. These later installed receive antennas shall have no further rights of complaint against the notified MVDDS transmitting antenna( s).” 53 SBCA petition at 4. 8 Federal Communications Commission FCC 03- 97 9 footnotes confirm that interference protection afforded to the DBS service is not time- limited. 54 SES Americom concurs and argues that our rules are inconsistent with the Commission’s long- standing practice to ensure the continued growth and development of DBS. 55 17. SES Americom also asserts that our sharing rules and the imposition of self- mitigation responsibilities on new DBS subscribers are inconsistent with a co- primary allocation of ubiquitous services and that there is no reasonable interpretation of the U. S. Allocation Table that could justify discriminating between existing and future DBS subscribers or systems. 56 SES Americom further argues that, while a “first- come, first- served” procedure is often used in order to resolve mutually exclusive proposals for discrete radio communication stations, such an approach is illogical in the context of sharing between two different consumer services, both of which depend upon blanket coverage of the same geographic regions. 57 SES Americom asserts that there is no rational basis for the contention that the service enjoys primary status if the customer base may be limited by the deployment of a second service in that region. 58 For example, if a DBS provider launches its satellite and commences service before installation of an MVDDS transmitter in a particular area, many of the DBS provider’s customers (those whose receivers are installed or relocated after the MVDDS system is deployed) will be relegated to secondary status. 59 SES Americom also claims that the rules provide no meaningful restriction on the EPFD that an MVDDS transmitter can emit into a later- deployed DBS receiver and thus will hinder the introduction of competition to the incumbent providers. 60 In the case of any later- deployed DBS system, all of its customers will be subject to secondary status. 61 Finally, SES Americom urges that our treatment of new DBS customers with respect to MVDDS is inexplicable when compared with the rules for sharing between DBS and NGSO FSS which are also allocated in the band on a co- primary basis. 62 18. Based upon the premise that future DBS subscribers will suffer harmful interference from MVDDS, SES Americom argues that the MVDDS/ DBS rules are inconsistent with the ITU Radio 54 SBCA petition at 7. SBCA particularly objects to our finding in the Second R& O that application of footnote S5.490 may be limited to DBS systems implemented in accordance with Appendix S30 of the ITU’s radio regulations. Id. at 7- 8 (citing Second R& O at footnote 216). SBCA contends that the Commission has never before in this proceeding made the non- interference obligations placed on fixed service operations in the 12 GHz band contingent upon DBS operators’ strict conformance with Appendix S30. Citing a 1986 Declaratory Ruling (Petition of United States Satellite Broadcasting Co, Inc., Memorandum Opinion and Order, 1 FCC Rcd, 977, 979 ¶15) on non- conforming use by DBS operators along with the planned transitioning of point- to- point FS out of the 12 GHz band, SBCA further argues that this approach taken in the Second R& O is inconsistent with the interpretations and policies the Commission has issued on this subject for the past 15 years and represents a post hoc rationalization for the decision to authorize MVDDS in the 12 GHz band. We find that SBCA’s reliance on the 1986 Declaratory Ruling and related cases regarding protection priorities for non- conforming DBS use to be misplaced. The “non- conforming use” at issue in that case was not related to the technical sufficiency of DBS systems, but related instead to whether DBS providers in the early days of the service could provide non- DBS type programming to facilitate acceptance of the service. 55 Id. at 7. 56 SES Americom petition at 7. 57 Id. at 7- 8. 58 Id. at 8. 59 Id. at 8. 60 Id. at 4- 5. 61 Id. at 8. 62 Id. at10. In the First R& O in this docket, we adopted EPFD limits for NGSO FSS systems to protect any DBS system or subscriber from interference. 9 Federal Communications Commission FCC 03- 97 10 Regulations and, therefore, international treaty obligations of the United States. 63 In support, SES Americom cites ITU Radio Regulation 342 and footnote S5.490, both of which contain prohibitions against harmful interference being caused to primary ITU allocated services. 64 SES Americom further argues that the impact of this alleged interference will not be limited to domestic DBS providers, but will also have an impact on foreign BSS Plan assignments or proposed Plan modifications that include U. S. coverage by foreign systems. 65 SES Americom argues, therefore, that the purported detrimental effect of our decisions has international ramifications. 66 19. MDS America argues in response that DBS is entitled to protection only from “harmful interference” not from all interference, even if it is measurable. 67 MDS America also argues that the DBS petitioners overlook that it is the Commission, not the DBS operators, whose role it is to define what will legally constitute “harmful interference” in accordance with the definition contained in Section 2.1 of the rules. 68 Under that definition, MDS America urges, interference is not to be deemed harmful unless it “seriously degrades, obstructs, or repeatedly interrupts” the subject service. 69 Consequently, MDS America contends, DBS service is not entitled to absolute protection from interference, and it is for the Commission to determine what constitutes serious impairment of service. 70 MDS America continues that, while the DBS petitioners may disagree with the Commission’s decision not to define harmful interference in terms of an absolute ceiling on the maximum permitted percentage of increased outage, nothing requires the Commission to adopt a definition in such terms. 71 In this light, MDS America argues that the Commission may specify what interference would be deemed harmful in terms that best serve the context in which the definition would be applied – and in this case, geographic based EPFD limits were chosen. 72 MDS America further adds that use of 10% additional unavailability as a starting point, rather than as a rigid ceiling, for developing regional EPFD levels was a reasonable approach because it does not impose percentage limitations in an arbitrary and unreasonable way when the actual minutes of increased unavailability were minimal. 73 MDS America also responds that the DBS petitioners’ argument— that if Private Operational Fixed Service (POFS) users were given secondary status and required to relocate to avoid interference to DBS, then the same is required of MVDDS— erroneously presumes that the services 63 SES Americom petition at 11. 64 See footnote 50 supra. 65 SES Americom petition at 11. In this regard, we note that SES Americom has pending before the Commission a petition for declaratory ruling to allow it to offer DBS service to customers in the U. S. from a planned satellite to be licensed by Gibraltar, which will operate at 105. 5 degrees W. L. MDS America and Northpoint, in response, assert that SES Americom would not be entitled to interference protection because the orbital slot is not included in the Region 2 Plan. See MDS America opposition at 3; Northpoint consolidated response at 26. We do not address here the merits of SES Americom’s argument vis- à- vis their pending petition but, rather, address their concerns more generally insofar as they raise questions about interference protection afforded any new DBS provider that is authorized to provide service in the U. S. 66 SES Americom petition at 11. 67 MDS America opposition to DBS petitions at 6. 68 Id. at 7. 69 Id. at 7. 70 Id. at 7. 71 Id. at 8 and at footnote 18. 72 Id. at 8 and at footnote 18. 73 MDS America opposition to DBS petitions for reconsideration at 10. 10 Federal Communications Commission FCC 03- 97 11 are similar and that MVDDS, which was not at issue when such relocation was before the Commission, must be treated the same way. 74 20. MDS America argues that the Commission’s decision to grandfather a higher level of protection to DBS receivers installed within 30 days of a new or modified MVDDS transmitter reflected an appropriate balancing of inter- related policy needs and a careful review of the record. 75 MDS America suggests that adopting the SES Americom approach would subject future MVDDS operations to a “possible time bomb” [that could shut down existing MVDDS operations] depending upon what decisions a future DBS provider might make. 76 Instead, MDS America continues, the Commission reasonably, and consistent with its approach in the NGSO and other contexts, left to the DBS operators making later installations the decision as to implementation of DBS system- based mitigation techniques that would provide greater protection from MVDDS signals than that generally afforded by the Commission’s technical rules restricting MVDDS operations. 77 In response to SES Americom’s claim that service provided by its future DBS satellite would be subject to interference under our approach, MDS America maintains that to the extent DBS service is protected by signal strength and other technical limitations imposed on MVDDS, SES Americom is not treated differently than any other DBS operator. 78 Moreover, MDS America maintains that later- installed DBS receivers will have the ability to use improved equipment and to adjust the installation to account for potential interference from MVDDS. 79 The Commission’s approach, MDS America urges, leaves to the marketplace the cost- benefit analysis with respect to additional mitigation efforts and encourages the deployment of more spectrum- efficient DBS equipment, but does not require it. 80 Finally, MDS America argues that the Commission’s approach recognizes the likely tendency for DBS operators to resist new competition from MVDDS, and use claims of possible interference as a shield to prevent competitive, rather than interference, harm. 81 MDS America concludes that the Commission’s decision is therefore a reasoned approach to maximizing consumer choice, and thereby consumer welfare. 82 21. Northpoint, in response, states that the DBS industry ignores the Commission’s definition of harmful interference and asserts that the DBS/ MVDDS sharing rules are more than adequate to prevent anything approaching harmful interference. 83 Northpoint also argues that even if, arguendo, our sharing plan is unprecedented, it is so - not because the Commission has refused to apply its first- in- time rule to such a situation in the past; instead, it is unprecedented because the Commission has never before authorized multiple ubiquitous services using the same spectrum in overlapping areas licensed on a geographic basis. 84 Now that the Commission has done so, Northpoint asserts, it has appropriately applied its rules for co- primary use to the current situation. More specifically, Northpoint argues that a later- deployed DBS system would not be secondary to MVDDS, nor would MVDDS be secondary to a later- deployed DBS system, because the Commission has determined that terrestrial and satellite services 74 MDS America opposition at 6. 75 MDS America opposition at 4. 76 Id. at 4. 77 Id. at 4. 78 MDS America opposition to SES Americom petition for reconsideration at 3. 79 MDS America opposition to DBS petitions for reconsideration at 8. 80 Id. at 4. 81 Id. at 5. 82 Id. at 5. 83 Northpoint consolidated response to petitions for reconsideration at 21. 84 Northpoint consolidated response at 27- 28. 11 Federal Communications Commission FCC 03- 97 12 are co- primary in the 12 GHz band. 85 In that light, Northpoint urges that SES Americom does not directly challenge the validity of this principle but, instead, merely claims that the Commission’s application of the principle in the context of DBS/ MVDDS sharing is unprecedented. 86 22. Decision. In essence, petitioners argue two broad propositions. First, that the technical rules adopted in the Second R& O will result in harmful interference to DBS. Second, that such harmful interference, along with the self- mitigation responsibilities imposed on new DBS subscribers, violate applicable statutes, FCC rules, international regulations and the primary status of DBS. This assertion of harmful interference and the alleged resulting violations of various statutory and regulatory prohibitions against such harmful interference repeat some of the same arguments that were raised by petitioners against our basic threshold decision in the First R& O to authorize MVDDS in the 12 GHz band. The Commission denied those earlier petitions in the memorandum opinion and order portion of the Second R& O because the Commission rejected the central premise upon which they were based, namely that that MVDDS will cause harmful interference to DBS. We again deny the instant petitions insofar as they assert that harmful interference will be caused to DBS. EchoStar and DIRECTV also argue that the Commission disregarded prior decisions in other proceedings that sharing between two ubiquitous satellite and terrestrial services is not feasible and failed to explain why sharing in the 12 GHz band is more feasible than in other bands. 87 We dismiss this aspect of their petition as repetitious because we addressed the same question previously in the memorandum opinion and order portion of the Second R& O and found that the record supported our threshold decision to authorize MVDDS in the 12 GHz band. 88 As we discuss below, we also deny the instant petitions insofar as they argue that the specific technical rules adopted in the Second R& O, including the self- mitigation responsibilities imposed on new DBS subscribers, violate various statutes and rules. 23. As a fundamental matter, the Communications Act grants us broad statutory power to make spectrum allocation decisions. 89 Of particular relevance in this proceeding is our general authority under the Act to make decisions concerning harmful interference and to make rules for spectrum sharing between services. 90 Indeed, the overriding question upon which the Commission has sought comment throughout this proceeding has been whether MVDDS can operate in the 12 GHz band without causing harmful interference to DBS. Section 47 C. F. R. § 2.1 defines harmful interference as “… interference which … seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service …” In the First R& O, the Commission made the threshold finding that it was technically feasible for MVDDS to operate in the 12 GHz band without causing harmful interference to DBS. Consequently, along with the First R& O, the Commission simultaneously issued the Further Notice of Proposed Rule Making to develop specific technical criteria and rules that would achieve the twin goals of protecting DBS from harmful interference while allowing the initiation of the new MVDDS. 24. Although the statutes require that harmful interference is not caused to DBS, neither the RLBSA nor SHVIA provides a definition of harmful interference, nor does the legislative history address how this term should be construed. Given that these laws are silent on this issue, we conclude they do not 85 Id. 86 Id. 87 EchoStar, DIRECTV joint petition at 9, 10. 88 Second R& O at ¶¶ 33- 36 and¶¶ 51- 52. 89 E. g., 47 U. S. C. § 303. (“ General Powers of Commission”). 90 In this regard, we note that the Commission’s rules, in addition to defining harmful interference, also recognize permissible interference (“ Observed or predicted interference which complies with quantitative interference and sharing criteria contained in these [international Radio] Regulations or in CCIR Recommendations or in special agreements as provided for in these Regulations.”). See 47 C. F. R. § 2.1. 12 Federal Communications Commission FCC 03- 97 13 circumscribe our authority under the Communications Act to give meaning to the term “harmful interference” through our usual rule making procedures. That is precisely what the Commission has done through consideration of the comments and analysis of all record information in the Second R& O. The rules the Commission adopted are the result of that notice and comment rule making process. We disagree with petitioners' claims that the Commission acted in an arbitrary and capricious manner and contrary to law in crafting the rules at issue here. We find that these rules are reasonable based upon the record and constitute objective criteria that presumptively define DBS interference limits that are well below what could be considered harmful under our rules. Therefore, we conclude that the Commission has complied with the no- harmful- interference provisions of SHVIA and RLBSA. 25. As we explain in more detail below in addressing technical issues, the rules adopted in this proceeding will prevent harmful interference to DBS. Stated in slightly different terms, the relatively small theoretical changes in DBS unavailability or system link budget margins that might result from MVDDS operations under the rules adopted were analyzed vis- à- vis their potential to increase either the incidence or duration of service outages by a matter of minutes over a year. Quite simply, the Commission promulgated regulations that ensure that any degradation of DBS would be quite small and that the additional impact that could occur to DBS service would not amount to a serious degradation, obstruction or repeated interruption of service and thus would not be considered harmful interference under our rules. 26. We disagree with petitioners that, because the Commission used the 10 percent increase in unavailability as a guide but not a strict limit in developing EPFD limits, the Commission had not provided a meaningful limit on the amount of interference that a DBS customer may receive from MVDDS. As explained in the Second R& O, the Commission chose not to place a cap on the percentage increase in potential unavailability, but rather limit interference through a very conservative EPFD level. The Commission further stated that given the conservative nature of our overall approach, sound engineering judgment suggested that using a 10% increase in DBS unavailability as a strict limit is unnecessary and inappropriate given the variability that currently exists in the provision of DBS services. 91 As MDS America points out, it is the Commission’s role to define what will legally constitute harmful interference in accordance with the definition in Section 2.1 of the rules. 92 MDS America further recognizes that the Commission, after weighing various factors, may choose from a variety of mechanisms to limit harmful interference. 93 After extensive analysis, the Commission decided that, in this case, limiting the EPFD level from an MVDDS station to a DBS receiver would be the best means of interference control. Furthermore, this approach is consistent with that required (and agreed to by the DBS licensees) for NGSO FSS sharing with DBS— i. e., NGSO FSS licensees must comply with a set of EPFD levels that were developed based on technical analysis. We thus find that none of the statutory or regulatory provisions cited by petitioners supports their contention that our rules are infirm because the Commission did not impose a hard percentage- based interference limit as opposed to the objective criteria the Commission adopted. 27. As explained in the Second R& O, it would be impractical for an MVDDS operator to demonstrate compliance with a strict percentage criterion or an EIRP limit that would always meet a strict percentage criterion. In particular, the Commission stated that it would be extremely difficult to measure compliance of a strict percentage criterion with sufficient accuracy for meaningful enforcement. 94 The 91 Second R& O, Appendix G. 92 MDS America opposition to DBS petitions for reconsideration at 7. See also, 47 C. F. R. § 2.1. 93 MDS America opposition to DBS petitions for reconsideration at note 18. MDS America observes that for broadcast stations, the Commission has used mileage separation to limit harmful interference between co- channel FM radio stations, but uses signal strength contours for AM radio stations. 94 Second R& O at ¶ 70. 13 Federal Communications Commission FCC 03- 97 14 Commission noted that compliance with a percentage criterion could only be determined after the fact. The Commission used data on yearly DBS unavailability as the basis for developing additional unavailability due to MVDDS. Thus, we would need to define a reference year (e. g. a calendar year), measure DBS outage times, and attribute each outage or portion thereof to either natural phenomena or MVDDS. Moreover, such measurements and attributions would be required at every receiver. Only then could we determine compliance with a strict percentage increase. 95 However, at that point, it would be too late for any meaningful remedy. Further, the determination of an EPFD that would comply with a strict cap in unavailability increase would be impractical for another reason – it would require the Commission to predict in advance the yearly rainfall for a given area so that the appropriate EPFD could be determined a priori on a yearly basis. Clearly, even if this could be done, it would not serve either DBS or MVDDS licensees to have the regulations change on a yearly basis. Finally, if we were to adjust EPFD values to yield a cap of 10%, then it would seem reasonable to adjust the permitted EPFD limits generally upwards as DBS licensees replaced existing satellites with more powerful satellites. However, we believe such an approach would remove the incentive for DBS licensees to further mitigate the potential for interference from MVDDS by upgrading their satellite networks. 96 28. We also disagree with petitioners’ claims that the Commission has not provided a meaningful restriction on the EPFD that an MVDDS transmitter can emit into a later- deployed DBS receiver. The Commission adopted a set of technical parameters (EPFD and EIRP limits) and service rules that do, in fact, limit the amount of interference that may be received by later installed DBS receivers. These parameters determine the size, shape, and orientation of the mitigation zone. 97 Because an MVDDS licensee cannot deploy unless it ensures that the EPFD is met at all DBS customers of record locations, all later installed DBS receivers gain the benefits of the choice of MVDDS operating parameters. 98 In other words, once operational, the technical parameters of an MVDDS station are known prior to the installation of any new DBS receiver and can be taken into account. To further ensure that later- installed DBS receivers can deploy, our rules do not allow the MVDDS licensee to change operating parameters without consequence. Our rules require that in the event of either an increase in the EPFD contour in any direction or a major modification to an MVDDS station, the initial requirements begin anew. 99 That is, prior to an MVDDS station making any change to its system, it must ensure that the EPFD limit is not exceeded for all DBS customers that exist at that time (this includes all DBS customers of record at the time of initial MVDDS installation plus all DBS customers added since the initial MVDDS installation). Thus, our rules do provide DBS operators with certainty and reasonable procedures. 29. Petitioners strenuously object to the imposition of self- mitigation responsibilities on DBS providers or subscribers and assert that the examples cited in the Second R& O, where the Commission crafted sharing rules that imposed various interference avoidance responsibilities upon existing primary services, are not precisely on point with the facts in this proceeding. 100 As an initial matter, we observe 95 Second R& O at note 165. 96 In fact, it was for this reason that we rejected a separate calculation of EPFD at each MVDDS site. See Second R& O at note 84. 97 As described in the Second R& O, there is a zone around each transmitter where the EPFD has the potential to be exceeded. Within this zone, we require the MVDDS licensee to ensure that all existing DBS customers’ receivers do not receive EPFDs in excess of our adopted limits. This can generally be accomplished by judicious choice of MVDDS transmitter site and antenna, but can also be accomplished through various mitigation techniques. See Second R& O at ¶ 55. 98 For example, if the EPFD level is met for a customer, it is not unreasonable to assume that at a later date that customer’s neighbors will also be able to install DBS receivers where the received EPFD level is below the limit specified in our rules. 99 See 47 C. F. R. §§ 1.929 and 101.1440. 100 Second R& O at ¶ 32, Footnote 77, ¶ 92, Footnote 226. 14 Federal Communications Commission FCC 03- 97 15 that at one level petitioners' argument essentially challenges our determination that MVDDS is allocated on a co- primary rather than secondary basis with respect to DBS. 101 To that extent, the petitions are dismissed as repetitious because they raise the same argument about the allocation status of MVDDS (and the relative interference protection rights of DBS) that the Commission previously addressed and disposed of in the memorandum opinion and order portion of the Second R& O. 102 In addition, we note that the examples cited in the Second R& O were meant to illustrate instances in the past where the Commission has imposed sharing obligations on various primary services. Whether or not the facts are precisely identical to the facts in this proceeding is irrelevant to the general proposition that the Commission has broad authority under the Communications Act to impose such requirements ab initio. Having made the threshold determination in the First R& O that it is technically feasible for MVDDS to ubiquitously share the 12 GHz band without causing harmful interference to DBS as defined by our rules, it was appropriate for us under the broad statutory powers granted by the Communications Act to craft a sharing plan through the rule making process that will enable such sharing. In that regard, we note that the adoption of any sharing rules between services, where none previously existed, inevitably results in an adjustment of the relative rights or responsibilities that licensees or subscribers of a pre- existing service must accommodate. 103 As the Commission stated in the Second R& O, our actions here are consistent with past Commission actions wherein the Commission has found that impacting some existing customers of a service was outweighed by the benefits of adding new services or capabilities to a frequency band. 104 30. In this proceeding, through the exercise of this regulatory authority, the Commission determined in the Second R& O that having new DBS subscribers take responsibility for modest self- mitigation measures to account for the presence of MVDDS signals strikes an appropriate balance among various spectrum policy goals. We also note, in particular, that other mitigation approaches considered in this proceeding have been consistently opposed by DBS proponents if the approach involved any contact with DBS customers by MVDDS or required additional information sharing by DBS. The approach adopted does not require such contact. Moreover, the Commission stated its belief in the Second R& O that any self- mitigation techniques that might be required should be modest and effective. Therefore, we believe that our approach is a reasonable compromise that respects the desire of DBS proponents to minimize customer contact with MVDDS parties. Nonetheless, we recognize that, as 101 EchoStar, DIRECTV joint petition at 4, and 19 at footnote 30; SBCA petition at 3 – 10. 102 Second R& O at ¶ 28. 103 When making these determinations, our regulatory role may be characterized “in both prophetic and managerial terms: [we] must predict the effect and growth rate of technological newcomers in the spectrum, while striking a balance between protecting valuable existing [services] and making room for new advanced technologies.” (Teledesic v FCC, 275 F. 3d 75, 84 (D. C. Cir. 2001). (“ The Commission correctly conceives of its role in prophetic and managerial terms: it must predict the effect and growth rate of technological newcomers in the spectrum, while striking a balance between protecting valuable existing uses and making room for sweeping new advanced technologies.” Citing Report and Order, 15 FCCR at 13, 431- 33, pp1- 2, 4- 5.) In crafting these decisions, we are inevitably “making predictions within [our] area of special expertise at the frontiers of science.” Baltimore Gas and Electric, 462 U. S. 87, 103 (1983). See also Aeronautical Radio, Inc. v. FCC, 928 F. 2d 428, 443- 445 (D. C. Cir. 1991) (upholding a FCC allocation decision - that was based upon the agency's belief that the allocation scheme would not result in harmful interference - because it was a “predictive judgment” of the type historically left to agency discretion). 104 This was done, for example, in the case of DTV where we balanced new interference to existing TV service against new digital TV capabilities. See Advanced Television Systems and Their Impact Upon The Existing Television Broadcast Service, MM Docket No. 87- 268, Sixth Report and Order, 12 FCC Rcd 14, 588 (1997). Similarly, for the Location and Monitoring Service (LMS) in the 902- 928 MHz band, we conditioned operation of certain stations upon the licensee’s ability to demonstrate that their systems do not cause unacceptable levels of interference to 47 C. F. R. Part 15 devices. See 47 C. F. R. § 90. 353( d). Also, we have allowed automated maritime telecommunication systems (AMTS) on frequencies near TV channels 10 and 13 and required the licensee to make such adjustments as may be necessary to fix any interference to household TV receivers. See 47 C. F. R. § 80. 215( h). 15 Federal Communications Commission FCC 03- 97 16 SBCA asserts, Section 101.1440( e) of the adopted rules appears to require a DBS licensee to oversee all future DBS receive antenna installations, which they currently may not do. Often, DBS receive antenna installations are done through retail outlets that sell DBS equipment or by a DBS customer. It was not our intent to alter these arrangements. Rather, we expect a DBS licensee to provide to these entities information they deem necessary so that they may take into account the presence of MVDDS operations when they install a DBS receive antenna. Typically, this information could be conveyed with installation guidelines for DBS equipment. Thus, we will modify Section 101.1440( e) of the rules to clarify the responsibility of DBS licensees in this regard. 31. Petitioners also generally object on statutory grounds to our decision to impose any interference avoidance obligations on either DBS subscribers or providers. SES Americom, in particular, relies upon the RLBSA legislative history indicating that the FCC must, under Section 2002( b)( 2), protect primary satellite system users, whether designated now or later, from harmful interference. 105 SES Americom concludes from the cited language that Congress could not have intended to protect future primary satellite services from terrestrial interference, but not later- deployed receivers of an existing primary satellite service. 106 In that light, SES Americom argues that the MVDDS/ DBS rules the Commission adopted are inconsistent with clear legislative mandate because they violate the primary 105 SES Americom petition at 13. Citing RLBSA legislative history, Cong. Rec. 106 th Cong., 1 st Sess. At S15014. The relevant language follows: “Mr. Gorton: [I] would like briefly to address Section 2002 of the Intellectual Property and Communications Omnibus Reform Act of 1999, which is an amendment to the Omnibus package, to clarify its meaning with my colleague who drafted the provision. There are a number of United States companies that have applied to the FCC for licenses to operate non- geostationary satellite systems in the so- called “Ku- band.” These firms are spending substantial amounts of private capital to develop satellite systems that will provide a host of telecommunications services to benefit the public. The satellite systems that have applied for licenses in the Ku- band are designed to operate globally on a primary basis, and already are treated as primary users of the Ku- band in the International Table of Frequency Allocations. Mr. President, I bring this up because section 2002( a) directs the FCC to consider issuing licenses, possibly in the same bands, for new terrestrial communications services that provide local television to rural areas. Section 2002( b)( 2) provides that the FCC must ensure that any new licensees for local television in rural areas do not cause harmful interference to primary users of the spectrum, presumably the Ku- band spectrum. I want to clarify that Section 2002( b)( 2) requires the FCC to prevent harmful interference not only with those who have been designated as primary users on the date of enactment of this Act, but also with prospective primary users of the Ku- band. If the FCC were to misinterpret this section, that is, if the FCC prevented only harmful interference with those who are primary users on the date of enactment, the public could be denied the substantial benefits of emerging satellite technologies. Mr. McCain: I agree with my colleague that the authors of this bill did not mean to interfere with the expert technical and regulatory judgment of the FCC with respect to licensing applicants in the Ku- band. The term “primary user” in Section 2002 is intended to include primary users, regardless of whether these users are primary on the date of enactment or are later designated as primary. The provision in no way seeks to grant preferential regulatory treatment to terrestrial license applicants over satellite system applicants. While there appears to be an error in the report accompanying this legislation, which incorrectly states that the statute says that “existing” primary users must be protected, clearly the statute does not contain this qualifier, and it is our intent that the FCC protect primary users, whether designated now, or later.” 106 SES Americom petition at 14. 16 Federal Communications Commission FCC 03- 97 17 status of DBS by requiring later- in DBS subscribers to take steps to avoid potential harmful interference from MVDDS. 107 32. We reject SES Americom’s reliance upon and interpretation of the RLBSA legislative history to support their assertion that our treatment of new DBS subscribers violates the statute. As an initial matter, the statute requires us to ensure that harmful interference is not caused to DBS. As discussed above, we find that the technical rules adopted by the Commission comply with that directive. We find no additional directives in the plain language of the statute to indicate that Congress intended to preclude us from adopting appropriate licensing or sharing rules among the services that we might authorize in the band. 33. Furthermore, we believe that the legislative history of the RLBSA can be reasonably interpreted differently than suggested by SES Americom. Section 2002( b)( 2) of the RLBSA reads as follows: “HARMFUL INTERFERENCE – The Commission shall ensure that no facility licensed or authorized under subsection (a) causes harmful interference to the primary users of that spectrum or to public safety spectrum use.” [Emphasis in original]. At the outset, the term “primary user” appearing in the legislative history that is focused upon by petitioners is not defined in the statute. Upon close reading, we conclude that the language cited by petitioners regarding “prospective primary users” of the Ku- band concerns, what was at the time, the as- yet- undetermined status of future non- geostationary satellite (that is, NGSO FSS) service in the band. Specifically, when SHVIA/ RLBSA was enacted, the Commission had not yet released the First R& O that first authorized NGSO FSS use of the 12.2- 12.7 GHz band and accorded it co- primary status. Therefore, contrary to SES Americom’s interpretation, it appears that the legislative history can more reasonably be read as indicating no more than the intent of Congress that NGSO FSS should be designated and protected as primary - as, in fact, the Commission subsequently decided in the First R& O. Indeed, as a further counterpoint to SES Americom's interpretation, we observe that the RLBSA legislative history also indicates that Section 2002( a) directs the FCC to consider issuing licenses for terrestrial services - possibly in the same bands. 108 Moreover, the legislative history also states that “the authors of this bill did not mean to interfere with the expert technical and regulatory judgment of the FCC with respect to licensing applicants in the [12 GHz] band.” 109 Statutes must be interpreted to give effect to each of their provisions. In the Second R& O, the Commission reasonably concluded that MVDDS would not be viable with greater interference- sharing burdens than what were adopted, and that placing some of the burden on a primary service to assist in the sharing of spectrum with another co- primary service does not relegate either of those services to secondary status. Therefore, what the Commission has done is satisfy both of Congress's goals by crafting rules that both preserve the primary status of the satellite services in the 12.2- 12.7 GHz band, and also enable another terrestrial service - MVDDS - to enter the band on a co- primary basis. In light of the foregoing, we find that petitioner's resort to the legislative history is of no avail since we conclude that we have complied with the explicit directive of the statute regarding harmful interference and that, even if considered, the legislative history does not support petitioners’ assertions. 34. Petitioners also object that our interference avoidance obligations effectively render DBS secondary to MVDDS and violate certain Commission rules concerning harmful interference by terrestrial communication services. In essence, petitioners strive to apply rules and relocation policies that were clearly adopted for the specific case of dealing with point- to- point FS that were in operation prior to DBS. MVDDS as authorized in this proceeding was not envisioned when the rules cited by petitioners were adopted. As observed in the Second R& O, the Commission originally adopted the non- harmful interference provision of Section 101.147( p) to deal with the specific problem of transitioning the 107 Id. 108 RLBSA Legis. history (Senator Gorton) - S15014. 109 RLBSA Legis. history (Senator McCain) - S15014. 17 Federal Communications Commission FCC 03- 97 18 relatively high power (up to 316,228 watts EIRP), two- way, point- to- point FS operations out of the 12 GHz band. 110 At that time, our goal was to encourage the older point- to- point FS operations to vacate the band due to their incompatibility with DBS. To that end, the Commission imposed the transitional rules and constraints cited by petitioners on those older FS operations. In contrast, MVDDS is a low power (up to 0.025 watts - or 14 dBm - EIRP) one- way transmission specifically designed to share spectrum with BSS operations. This basic distinction was key to our initial threshold determination that MVDDS, unlike the older point- to- point FS, could share the 12 GHz band without causing harmful interference to DBS. 111 Consequently, we find that it would be inconsistent with the clear historical purpose of the rule to impose on MVDDS the transitional constraints of § 101.147( p) that were intended solely for the older point- to- point FS operations that we were encouraging to vacate the band. 112 With regard to footnote S5.490 of the U. S. Table of Allocations, we note that it states in pertinent part that “… in the 12.2- 12. 7 GHz band, existing and future terrestrial radiocommunication services shall not cause harmful interference to satellite services.” In view of our determination that MVDDS will not cause harmful interference to DBS under the rules adopted in the Second R& O, we conclude that the Commission has not violated that provision. 35. As petitioners’ assertions implicitly recognize, application of the traditional first- in- time principle in this novel situation involving sharing among three ubiquitous co- primary services could produce unintended or illogical results. For example, in various circumstances, one co- primary service could entirely preclude another from operation in entire geographic areas merely because either a transmitter or receiver was first deployed – even though the impact of the later- in service on the other co- primary service might be generally imperceptible in all but a few isolated instances. The Commission found it necessary in the Second R& O to craft new and unprecedented sharing rules that would achieve the desired result of allowing ubiquitous service for all co- primary services authorized in the band while preventing harmful interference as defined by our rules. To the extent that SES Americom asserts that our treatment of MVDDS is inconsistent with our treatment of NGSO FSS with regard to DBS protection we note the following. MVDDS is technically a vastly different service than either DBS or NGSO FSS. DBS programming emanates from satellites that produce coverage footprints on the land having signal strengths that are relatively constant over significant geographic areas within a particular radiation beam. In comparison, MVDDS programming will emanate from low- power, land- based transmitters whose signal intensity diminishes rapidly over relatively short distances from the transmitter site. As a consequence, the potential for interference to DBS from MVDDS tends to be highly localized to the immediate vicinity of the transmitter. NGSO FSS signals, on the other hand, can have a uniformly undesired impact to both DBS and MVDDS over extensive areas. Because the mechanism and extent of potential interference from each of these services is so different, the Commission found it necessary to determine the timing for the imposition of MVDDS self- mitigation duties on DBS subscribers based upon whether a DBS receiver predates an MVDDS transmitter. We readily acknowledge that this approach may be a departure from past practice where the Commission may have focused only on when a 110 As we explained in the memorandum opinion and order section of the Second R& O, “… in the early 1980’s, the Commission adopted a non- harmful interference requirement on incumbent fixed point- to- point operations in the 12 GHz band and encouraged them to relocate to other spectrum because these operations were generally incompatible with the BSS allocation that was made. Specifically, the point- to- point operations were high powered (up to 316,228 watts EIRP), two- way links that could transmit in any direction. These characteristics require that such fixed links coordinate with other uses on a case- by- case basis, which is not possible with ubiquitous BSS operations. In comparison, in this proceeding we would permit fixed service operations that are low- power (up to 0.025 watts EIRP) one- way transmissions specifically designed to share spectrum with BSS operations.” Second R& O at ¶ 28. 111 Id. 112 See, also, 47 C. F. R. § 101.1409, as adopted in the Second R& O, wherein we distinguish between the relative protection treatment of the older point- to- point licensees versus MVDDS licensees. 18 Federal Communications Commission FCC 03- 97 19 transmitter (in this case, a DBS satellite) begins operation. However, we reiterate the key point - as recognized by the petitioners - that this proceeding presents the unprecedented situation of ubiquitous, geographic sharing of three co- primary services. Therefore, we find that a traditional first- in- time approach focused solely on transmitters would be neither workable nor beneficial. 36. At the same time, we acknowledge that the DBS self mitigation steps envisioned by our sharing rules for DBS subscribers might not be effective in what we believe will be very infrequent circumstances within the limited extent of the predicted mitigation zone around each MVDDS transmitter. However, to put the magnitude and impact of this possibility in perspective, we note that both existing and prospective DBS customers already experience the inescapable reality that a variety of locations are presently, or may become, unsuitable for DBS reception due to signal blockage caused by factors such as tree growth or building construction and the like. 113 For example, some individuals who live on a particular side of an apartment complex cannot receive DBS signals because they have no line of sight with any DBS satellite. In addition, the growth of a single tree in one’s backyard might eventually render a formerly optimal DBS receiver installation unsuitable due to signal blockage. Nevertheless, in view of the increasing popularity of DBS notwithstanding these dynamically changing limitations, we find that DBS subscribers appear to accept as a norm of the DBS service that a variety of potential receiver sites might not be suitable for DBS reception or might require remedial measures. There is nothing in the record to suggest that this well- known fact of such occurrences with individual DBS customers has had any noticeable effect on the viability, marketability or status of DBS a primary service. Against this backdrop, and in view of the conservative EPFD limits imposed on MVDDS, we do not believe that the impact of MVDDS on DBS subscribers in any given area will rise above a de minimis level that is any more perceptible than the well- tolerated current status- quo. Consequently, we fundamentally disagree with SES Americom’s assertion that future DBS providers will be significantly precluded from any geographic area. Moreover, we affirm our determination that the possibility that self- mitigation measures might be required by DBS subscribers is balanced by the public interest in providing a new service because we expect that the need for and impact of such measures on the DBS subscriber base will be negligibly small. Therefore, we find that the sharing rules adopted by the Commission preserve the primary status of DBS because DBS will not be precluded from deploying in any geographic area and will be essentially free of harmful interference. 37. In addition, we observe that, absent these carefully crafted sharing rules, it would be possible for a single later- in DBS subscriber who does not take simple interference avoidance measures to hold hostage or totally pre- empt MVDDS service to the public - even where potential interference could be readily avoided by the DBS subscriber. We do not believe that such a draconian outcome would serve the public interest when balanced against what we believe will be a negligible impact on DBS because it results in inefficient spectrum usage that prevents the initiation of a new service. Furthermore, as a matter of public policy, we have concluded that - as between a few DBS subscribers needing to take modest mitigation steps versus no alternative MVPD provider for hundreds or thousands - the public interest is better served by affording the choice of an alternative MVPD service. We find this to be particularly true in view of our judgment that relatively simple remedial measures taken by DBS customers should effectively resolve any anomalous MVDDS interference issues that might occur notwithstanding the very conservative regional EPFD limits imposed on MVDDS operation. 38. Finally, we disagree with SES Americom’s assertion that the rules adopted by the Commission are inconsistent with the International Radio Regulations. The flaw in SES Americom’ 113 Either tree growth or building construction, for example, that encroach within the DBS receiver\ satellite line of sight would tend to have the similar effect of reducing (or possibly even totally blocking) the desired DBS signal and thereby increasing the chances of outages experienced by subscribers. Under these circumstances, DBS subscribers would likely use the same self- mitigation measures described herein, namely re- siting the antenna or possibly using a larger antenna to recover the diminished DBS signal. 19 Federal Communications Commission FCC 03- 97 20 argument is the recurring premise urged by petitioners, that we reject, that the rules and procedures adopted will cause harmful interference to both existing and future DBS subscribers. As we reaffirm herein, we believe that the rules and procedures adopted in the Second R& O will not result in harmful interference to DBS subscribers as defined by our rules. We believe that our rules will afford similar protection from harmful interference to any DBS customer when receiving signals from any satellite in orbital locations within the geostationary arc visible to the United States regardless of whether any such satellite is part of a domestic or foreign system. Accordingly, we find the argument that the Commission violated international rules and its own policies that prohibit harmful interference to DBS to be without merit. 114 39. In conclusion, we find that petitioners cite nothing in SHIVA, RLBSA, or the LOCAL TV Act that constrains us from exercising our statutory authority under the Communications Act to craft appropriate rules for spectrum sharing between existing or future satellite services and new terrestrial services. In the Second R& O, the Commission found that any new sharing burdens imposed on incumbent DBS or NGSO FSS to accommodate MVDDS in the 12 GHz band are reasonable because they are modest, effective and outweighed by the potential benefit to the public of providing for a new potential competitor in the multichannel video and data markets. 115 We thus affirm our earlier conclusion that the adopted sharing obligations will serve the public interest because we find that those requirements will result in more efficient spectrum utilization and will facilitate compliance with the non- harmful interference provisions of the statutes while allowing initiation of a new service. b. Other Matters 40. EchoStar and DIRECTV assert that the substance of certain editorial changes and the manner in which they were made between the adoption and release of the Second R& O violate the Administrative Procedure Act and Government in the Sunshine Act (Sunshine Act). 116 Petitioners argue that the majority of Commissioners agreed upon non- trivial editorial changes subsequent to the item's adoption without holding an open meeting. 117 In that light, petitioners assert that the Commission's action violated the open meeting requirements of the Sunshine Act. 118 41. We disagree. The Sunshine Act sets forth requirements for open meetings that, under 47 U. S. C. 155( d), are held each month by the Commission. A meeting subject to the Act is one where at least a quorum of Commissioners jointly conducts or disposes of agency business. 119 Petitioners state, incorrectly, that the Second R& O was adopted at an open meeting on April 11, 2002. 120 In fact, however, the item was adopted by circulation - as provided for in 47 C. F. R. 0. 5( d) of our rules. 121 When we adopt 114 We note that we discussed the applicability ITU recommendations in the memorandum opinion and order portion of the Second R& O. Second R& O at ¶ 41. 115 Second R& O at ¶53. 116 EchoStar, DIRECTV joint petition at 23. Citing 5 U. S. C. Chapter 5, Section 552b. 117 EchoStar, DIRECTV joint petition at 23, citing Statement of Commissioner Kevin J. Martin - Dissenting in Part and Approving in Part, Second R& O. 118 Id. 119 5 U. S. C. Chapter 5, Section 552b (a) (2). See, also, FCC v. ITT World Communications, Inc., 466 U. S. 463, 470 (1984), quoting S. Rep. No. 94- 354, at 2. 120 EchoStar, DIRECTV joint petition at 23. 121 Section 0.5( d) states “Matters requiring Commission action, or warranting its consideration are dealt with by the Commission at regular monthly meetings, or at special meetings called to consider a particular matter. [. . . ] In appropriate circumstances, Commission action may be taken between meetings “by circulation”, which involves the submission of a document to each of the Commissioners for his approval.” 20 Federal Communications Commission FCC 03- 97 21 an item by circulation, each Commissioner's vote is sequentially noted by an internal tracking system. Sequential, notational voting (circulation voting) by Commissioners is not prohibited by the Sunshine Act since the Act applies to any meetings that are held - but does not require that meetings be held. 122 Furthermore, we note that separate consideration of agency business by individual Commissioners is explicitly excluded from the definition of a “meeting” by our rules. 123 Consequently, we find that no “meeting” that would be subject to the Sunshine Act was held. Therefore, the requirements of the Sunshine Act are not applicable. Accordingly, the EchoStar and DIRECTV joint petition is denied to the extent that it asserts that certain edits to the Second R& O violated the Administrative Procedure Act and the Sunshine Act. 42. Claiming that the adopted interference limits are too permissive, EchoStar and DIRECTV express concern that DBS providers might be required to increase effective power levels transmitted to DBS receivers in order to preserve the reliability of service their customers have come to expect. 124 They further argue that such an increase in power levels, if needed, would also require a reduction in the number of channels that can be provided by a DBS system. 125 Such a reduction in channel capacity, they contend, could have a real and substantial economic cost that would cause significant economic harm to DBS providers. 126 Given the substantial reliance interests of DBS providers on the terms under which their licenses were originally awarded, EchoStar and DIRECTV argue, DBS providers may well be able to show that this substantial cost constitutes a “regulatory taking” for which they would be entitled to compensation from the U. S. Treasury. 127 43. We find that petitioner's allegation is not ripe because it is contingent upon events that have not yet transpired and, in our predictive judgment, will most likely not be required because we have adopted conservative EPFD and EIRP limits on MVDDS that should ensure negligible impact on DBS subscribers. Therefore, we disagree with the fundamental premise that the adopted interference limits are insufficient or too permissive to protect DBS from harmful interference. Even petitioners themselves do not assert that the feared measures they describe will absolutely be necessary - they merely argue that DBS carriers “could be forced” to take the measures they describe. 128 Therefore, we conclude that EchoStar and DIRECTV's suggestion that a “regulatory taking” might be worked upon DBS providers at some future time is purely speculative and merits no further consideration. 2. DBS/ MVDDS Sharing Rules 44. Positions of the Parties. Petitioners raise objections under the Administrative Procedure Act (APA) that the adopted technical rules are arbitrary, capricious, and contrary to law. 129 Broadly speaking, petitioners argue that the Commission, inter alia, failed to rationally explain our decisions, ignored the findings and recommendations of the MITRE Report, adopted rules that are contrary to other FCC rules and fail to protect DBS. Specifically, EchoStar and DIRECTV contend that the rules fail to guarantee 122 Railroad Comm'n of Texas v. U. S., 765 f. 2d 221 230 (D. C. Cir. 1985); Communications Systems, Inc. v. FCC, 595 F. 2d 797 (D. C. Cir. 1978). 123 47 C. F. R. § 0. 601( b). 124 EchoStar, DIRECTV joint petition at 17. 125 Id. at 17. 126 Id. at 17. 127 Id. at 17. 128 Id. at 17. 129 See, e. g., EchoStar, DIRECTV joint petition at 13. 21 Federal Communications Commission FCC 03- 97 22 that DBS carriers and their customers will be protected from harmful interference by MVDDS. 130 In addition, they are critical of several aspects of our predictive model, stating that the Commission failed to provide adequate notice under the APA for the predictive computer model relied on to develop EPFD limits. 131 They further argue that the Commission failed to explain how the regional EPFD limits, which they claim are based on a flawed model, will prevent harmful interference to DBS service and thus protect DBS providers and customers. 132 They assert that the record does not contain any assurance of the statistical accuracy of the model 133 and that the model has not been tested in the field. 134 They also assert that DBS subscribers located outside the predictive contour are not protected from harmful interference even if they are subject to higher power from MVDDS than the model predicts. 135 45. EchoStar and DIRECTV claim that our “double average” approach to developing the EPFD limits in which multiple satellite locations are averaged for each city and then multiple cities are averaged for each region fails to provide a meaningful limit on increased unavailability. Instead, they believe that the EPFD limits should be based on data for each of the specific sub- markets for which the Commission intends to license. 136 They argue that, even if the Commission concludes that an additional 10% unavailability of DBS due to MVDDS is permissible, using the 10% criterion as a starting point does not provide a meaningful standard. 137 Specifically, they state that: 1) the 10 percent standard is exceeded in 31 of the 32 markets examined with respect to one or more full- CONUS satellites; 2) the median increase in the 32 markets is more than 10 percent and the mean increase is almost 12 percent; 3) the predicted unavailability increases range as high as 20- 30 percent in certain markets; and 4) the model fails to consider the “wing” satellites such as those located at 61.5 and 148 o West Longitude. 138 To remedy these alleged failings, EchoStar and DIRECTV state that the model should be calibrated to yield EPFDs that meet a ceiling of 10% increased unavailability. 139 46. Finally, EchoStar and DIRECTV assert that the adopted safety valve , in which DBS licensees can petition to have the EPFD levels at specific locations adjusted due to anomalous situations, is deeply flawed. 140 They cite two reasons. First, they state that the existence of such a mechanism cannot save a rule making scheme that is otherwise arbitrary and capricious since the safety valve would expand to overshadow the rule itself. Second, they state that the safety valve is too vague and uncertain to provide any meaningful increase in protection for DBS providers and customers. 47. Northpoint, responding to petitions for reconsideration, agrees with the Commission’s conclusion that small theoretical changes in DBS unavailability that might result from MVDDS operation do not rise to the level of harmful interference. 141 They further argue that even if one assumes that 130 See, e. g., EchoStar, DIRECTV joint petition at 5. 131 Id. at 9 and 15, footnote 26. 132 Id. at 9. 133 EchoStar, DIRECTV joint petition at 8. 134 Id. at 15. 135 Id. at 8. 136 Id. at 8. 137 Id. at 5. See also, note 47, supra. 138 EchoStar, DIRECTV joint petition at 6- 8. 139 Id. at 7- 8. 140 Id. at 18. 141 Northpoint consolidated response to petitions for reconsideration at 21 (citing Second R& O at ¶ 32). 22 Federal Communications Commission FCC 03- 97 23 unavailability might increase by as much as 20- 30%, it still does not represent harmful interference because such a small difference in availability cannot be practically detected because rainfall itself typically varies by similar amounts year- to- year. 142 48. Finally, Digital Broadband Applications Corporation (DBAC), in its comments on petitions for reconsideration, raises the concern that the Commission did not evaluate potential interference to U. S. terminals that might at some time in the future receive signals from satellites licensed by administrations other than the U. S. when establishing the EPFD levels for MVDDS. 143 DBAC argues that, as a result, domestic subscribers of non- U. S. satellites might not be afforded sufficient protection from MVDDS operations except, perhaps, near the U. S. borders. 144 DBAC indicates that it shares the concerns of EchoStar, DIRECTV, and SES Americom with respect to protection of satellite operations deployed after selection of an MVDDS site and asks us to amend the rules to protect such satellite operations. 145 49. Decision. Although petitioners clearly disagree with our decisions in the Second R& O, they provide no new substantive information that was not fully considered. Petitions for reconsideration are not granted for the purpose of altering our basic findings or debating matters that have been fully considered and substantively settled. 146 We find that petitioners’ arguments do little more than disagree with our analysis, judgments, and policy choices. Bare disagreement, absent new facts and arguments, is insufficient grounds for granting reconsideration. 147 The resolution of the fundamental issues surrounding the protection of DBS raised by petitioners has been a central feature of this rule making from the outset. Full opportunity for all affected parties to comment has been afforded and we have fully considered all relevant matters in the record. In the absence of any new information, and in light of our review herein of the analysis, judgments and policy choices made by the Commission in the Second R& O, we find petitioners’ arguments to be without merit. 50. As an initial matter, we address the assertions regarding the MITRE Report. We observe that petitioners’ arguments are largely based upon apparent misunderstandings regarding the status and our consideration of the MITRE Report. The LOCAL TV Act merely required us to arrange for independent testing of the potential for MVDDS interference to DBS. The Commission complied with that requirement when the MITRE Corporation was contracted to conduct that testing. Additionally, the LOCAL TV Act does not specify that the findings and recommendations of the MITRE Report are to be conclusively binding upon our determination of what final rules would best produce the desired results. Had that been the case, the notice and comment rule making procedures followed by the Commission to develop the final rules would have been largely superfluous. Indeed, SES Americom essentially gets it right to the extent it acknowledges that it is ultimately within the Commission's discretion to resolve policy issues and that various conclusions of the MITRE report are characterized even by MITRE as 142 Northpoint consolidated response to petitions for reconsideration at 23. 143 DBAC indicates that it has applied for authorization to provide U. S. consumers with interactive video service and high speed Internet access through a system that includes Canadian- licensed satellites in the 12.2- 12.7 GHz band. See DBAC comments on petitions for reconsideration at 2. 144 Id. at 3. 47 C. F. R. § 101.1423 requires that MVDDS transmitters within 35 miles of the Canadian and Mexican borders not cause harmful interference to stations in Canada or Mexico. See Second R& O at ¶ 195. 145 Id. at 3- 4. 146 See, e. g., Regulatory Policy Regarding the Direct Broadcast Satellite Service, Memorandum Opinion and Order, 94 FCC 2d 741, 747- 748 (¶¶ 10– 12) (1983)( citing, e. g., WWIZ, Inc., 37 F. C. C. 685, 686 (1964), aff'd sub nom., Lorain Journal Co. v. FCC, 351 F. 2d 824 (D. C. Cir. 1965), cert. denied, 383 U. S. 967 (1966); Florida Gulfcoast Broadcasters, Inc., 37 F. C. C. 833 (1964); Employment Practices of Stations-- Charlotte, N. C. Market, 77 F. C. C. 2d 1 (1980); WEOK Broadcasting, 4 Rad. Reg. 2d 503 (1965)). 147 Id. 23 Federal Communications Commission FCC 03- 97 24 being merely a “recommendation.” 148 To inform our exercise of statutory discretion under the Communications Act, the Commission placed the MITRE Report on public notice on April 23, 2001, and asked for responsive comments that were exhaustively reviewed on the merits. Consequently, while recognizing that the MITRE Report is a centrally important document that provides critical technical insight and recommendations based upon a narrow set of testing conditions, we find that it was appropriate for the Commission to weigh its findings and recommendations in light of the totality of evidence in the record. Therefore, we find that neither the LOCAL TV Act nor the MITRE Report limits our broad statutory authority to exercise judgment in crafting rules that we believe will prevent harmful interference. 51. We note that our rules provide that any increase in DBS unavailability attributable to MVDDS would be in addition to the allowance apportioned to NGSO FSS. The petitioners have not persuaded us to differ from this conclusion. The Commission stated in the Second R& O that such a decision does not violate the ITU’s findings stated in ITU- R Rec. BO. 1444, 149 as this recommendation only pertains to sharing between NGSO FSS and DBS. Moreover, the Commission noted that the increased unavailability attributable to MVDDS and NGSO FSS would not necessarily be independent events (because some outages due to each service would occur simultaneously) such that the apparent increases would not be directly cumulative (i. e., the total DBS unavailability will actually be less than the sum of the individual increases in unavailability theoretically caused by the NGSO FSS systems and an MVDDS system). 150 52. We find as unfounded petitioners’ dispute with our methodology and their claim that adequate notice was not provided. Our predictive model embodies a well- reasoned and technically sound approach that was fully explained in light of all the facts in the record. The Commission proposed an analytic model and sought comment in the Further Notice on, among other matters, the validity of the model and asked commenters to suggest modifications or alternative models. 151 Specifically, the Commission provided a methodology for converting the percentage of DBS unavailability into a carrier-to- interference (C/ I) ratio 152 and a proposed methodology for using that C/ I ratio to compute the mitigation zone. 153 The model the Commission ultimately used to calculate the EPFD limits was based on the proposals, but modified somewhat based on our decisions in the proceeding (e. g., our use of an EPFD limit rather than a C/ I limit), comments of the parties, and the MITRE Report. Our ultimate decision as to the particular details of the predictive model is clearly a logical outgrowth of the Further Notice and 148 SES Americom petition at 16, footnote 41. 149 See Recommendation ITU- R BO. 1444, “Protection of The BSS In The 12 GHz Band And Associated Feeder Links In The 17 GHz Band from Interference Caused by Non- GSO FSS Systems.” 150 Second R& O at ¶ 79. We base this finding on our analysis, which (for computational simplicity) evaluated the effects of NGSO FSS and MVDDS independently. However, in some cases, the interference events caused by MVDDS and NGSO FSS signals will coincide. 151 First R& O and Further Notice at ¶¶ 266- 276. See, in particular, ¶ 272 stating in part, “We propose to define an analytical model for calculating mitigation zones […]. We request comment on the appropriateness of the model and parameters we have used in our analysis. Commenting parties proposing alternative calculation methods and parameters should provide sufficient technical analysis to support their proposals.” The models were made available on the Commission’s web site at http:// www. fcc. gov/ oet/ dockets/ et98- 206/. 152 See Further Notice at Appendix H. Using this methodology, we conducted a study to determine the DBS outage statistics for top television markets. A summary of this analysis was included in the Further Notice as Appendix J. The full analysis was placed in the docket file of the proceeding. See Staff Analysis of DBS Outage Statistics for Top 32 Television Markets, February 13, 2001. 153 Id. at Appendix I. 24 Federal Communications Commission FCC 03- 97 25 rationally based upon the comments filed and the facts of record. 154 Indeed, numerous proposals about specific inputs to be used in the predictive model were discussed throughout this proceeding. 155 Based on those comments, the Commission conducted its analysis as follows. The Commission selected 32 markets for analysis which represented climatic and geographic diversity across the U. S. It was our judgment, based on our analysis that this sample set, which was larger than the sample set analyzed by MITRE 156 or used by the DBS licensees in determining EPFD limits for NGSO FSS, 157 was sufficiently large and diverse to produce data representative of the entire country as a whole. This judgment was based on our finding the EPFD was most affected by a combination of satellite power and rain rate, both of which are fairly constant over large areas. 158 This observation led to our conclusion that EPFD limits can be developed for the entire U. S. based on a representative set of markets. Because of these dependencies (satellite power and rain rate), our analysis revealed that the U. S. could be divided into distinct regions in which the same EPFD limits would yield fairly constant levels of interference protection. After carefully considering the record 159 and in keeping with our policy objectives of providing clarity and as much certainty as possible to affected parties, the Commission determined that these goals would be satisfied by specifying regional EPFD levels rather than requiring the parties to calculate a separate EPFD for each market or even for each transmitter, as suggested by EchoStar and DIRECTV. Thus, we conclude that the averaging process necessary to determine regional EPFD levels applicable to all satellites and, by association, the use of a regional approach is reasonable and lawful and satisfies the Commission’s policy objectives. 160 The model adopted is therefore similar to a model proposed in the NPRM. Commenters knew of the model and commented on it in both the comment and 154 The model follows the methodology laid out in the relevant ITU recommendations, and our results are consistent with those of the parties. See para. 58, infra. See also, Second R& O, Appendix G for analysis results. Our model differs slightly with those of the parties. Footnote 173 of the Second R& O noted that Northpoint and DIRECTV used a spreadsheet for their computations. However, inputs to that spreadsheet come from the computational methods of ITU- R Recommendation P. 618 (this is the same ITU- R Recommendation used by the Commission’s model). See, e. g., DIRECTV Comments to the Further Notice at Appendix I, Table A, Lines 42 and 47. Under DIRECTV’s approach, separate calculations are needed to determine the necessary inputs. The Commission’s Mathcad model combines all the calculations into one self- contained module, which incorporates the same methodology as DIRECTV and Northpoint, but also incorporates the computations of the ITU Recommendation. 155 Id. See also, e. g., Second R& O at ¶¶ 73- 79. 156 MITRE made policy recommendations after analyzing only ten locations across the U. S. See MITRE Report at 5- 5 157 Our 32 city sample was more than double the sample size used when the ITU analyzed the potential for NGSO FSS interference to DBS, which used an analysis of only 14 U. S. cities. See Second R& O, Appendix G, at footnote 679 citing Recommendation ITU- R BO. 1444. 158 Footnote 577 of the Second R& O stated that EchoStar submitted an application that shows an EIRP of 53 dBW for the entire eastern half of the United States. Similarly, this application generally shows an EIRP of 51 dBW for the rest of the continental United States. See Application for Minor Modifications of DBS Authorizations, Launch and Operation Authority, File No. DBS- 88- 01/ 68- SAT- ML- 96/ 70, File No. DBS- 88- 02/ 6- SAT- ML- 97/ 71, File No. DBS- 74- SAT- P/ L- 96/ 72, Filed Dec. 30, 1997. Long term climatology data show the mean annual precipitation in inches does not fluctuate significantly over large areas throughout the United States. See climatography of the U. S. No. 81 - Supplement # 3, Maps of Annual 1961- 1990 Normal Temperature, Precipitation and Degree Days at http:// lwf. ncdc. noaa. gov/ oa/ documentlibrary/ clim81supp3/ clim81. html. 159 The record generally contained two proposals for implementing the EPFD values. The first, advocated by EchoStar and DIRECTV, would have required a separate calculation of EPFD at each MVDDS transmitter. See, e. g., DIRECTV Comments to Further Notice at 20- 21. The second, advocated by Northpoint, sought to implement four regional EPFD values. See Northpoint Comments to Further Notice Technical Appendix, at 5, 15- 16. 160 In addition, to verify that our EPFD levels did indeed provide comparable protection across our adopted regions, we analyzed an additional ten markets. The results of these sample computations showed outage increases consistent with our guidelines and the results from the original 32 city sample. See Second R& O Appendix G. 25 Federal Communications Commission FCC 03- 97 26 reply comment rounds. In addition, we note that our approach, which relied on averages, is no different than similar approaches taken by the Commission in other services. For example, separation distances to prevent interference between analog television stations are based on providing an acceptable level of service to a median TV receiver and this acceptable level of service is based on using propagation curves that estimate the median field strength present at 50% of the locations, 50% of the time. See 47 C. F. R. §§ 73.610, 73.684, and 73. 699. See also, “Engineering Aspects of Television Allocations,” Report of the Television Allocations Study Organization (TASO) to The Federal Communications Commission, March 16, 1959. Petitioner's argument that the Commission violated notice requirements ignores these critical facts. For that reason, we reject their argument. 53. EchoStar and DIRECTV criticize our adopted EPFD rules by stating that the adopted 10% standard is exceeded in most markets examined with respect to at least one or more CONUS satellites, that the median and mean increases are greater than 10%, and predicted unavailability increases range as high as 20- 30% with respect to certain satellite/ city combinations. First, it is important to keep in mind that the increases in unavailability at question in this proceeding are very small. Given the reliability of DBS service today (typically 99.8- 99.9% availability), a 10% increase in unavailability of 0.2% (99.8% availability) only increases the unavailability to 0.22% (99.78% availability). Similarly, in this case, even if unavailability were to increase 50% to 0.3%, DBS would still be available 99. 7% of the time. In our judgment, increases sufficiently close to 10%, are therefore, fairly insignificant in the overall provision of DBS service and do not meet the definition of harmful interference as defined in our rules. 161 Moreover, these parties err by referring to the 10% benchmark as a standard. The Commission has stated several times in this proceeding that the 10% criterion was used only as a starting point for developing the EPFD levels. As we discuss above in addressing legal and regulatory issues, it was our goal to come reasonably close to 10%, but it was not our goal - nor would it be reasonable given the complexity of the calculations and the variability of the factors involved - to determine an EPFD that yields exactly an increase of 10%. Because we used averages across satellites and regions to specify EPFD levels, it is not surprising that at least one satellite in each market examined exceeds the mean and median. In fact, by definition, half will exceed the median and half will be below. Again, given the relatively small increases in unavailability, we do not believe that DBS will suffer harmful interference. A further point worth noting is illustrated in Table 2 below in which column 2 shows the difference in unavailability percentage using our adopted EPFDs or a strict 10% limit. As can be seen from the table, these differences are very small - less than 5 hundredths of a percent for the cities shown. 162 Thus, we conclude that the result of our averaging approach differs from the results that would be obtained by using a strict 10% limit by such a small amount as to be insignificant. This small difference is acceptable when balanced with the advantages of having a specified EPFD limit in the rules rather than a percentage criterion. 54. In addition, the petitioners’ emphasis on the 20- 30% unavailability range is somewhat misleading because it ignores the underlying significant factors. We observe that such increases only pertain to a single satellite, the one located at 110 o West Longitude. As discussed in more detail below, this particular satellite has been replaced with a new satellite having better performance characteristics. However, to directly address petitioners’ argument on its own terms, data based on the former satellite 161 See para. 23, supra. 162 A complete set of data for all cities we examined is contained in Appendix D. With limited exception, the difference between the percentage of DBS unavailability using our regional EPFDs and a strict 10% limit is less than 5. 2 hundredths of a percent. The only exception to this is Seattle with respect to the “wing” satellites at 61. 5 o and 148 o West Longitude, where the differences are 35. 2 and 17. 0 hundredths of a percent, respectively. We note that the baseline outages for Seattle with respect to these satellites are several times higher than for any other city/ satellite combination. In this regard, we note that the MITRE Report suggested that it does not make sense to tailor the MVDDS interference criterion to protect DBS operations where reliable service is not now expected. See MITRE Report at 6- 7 (suggesting that locations with more than 100 hours of baseline outage should not be protected). We effectively concur with the MITRE Report on this issue. 26 Federal Communications Commission FCC 03- 97 27 located at 110 o West Longitude are presented below: 163 Tables 1 and 2 show results for cities predicted to experience some of the largest percentage increases in unavailability from this satellite (if it were still operational). For comparison purposes, Tables 3 and 4 show similar data for cities predicted to experience the least amount of increased unavailability. Table 1: Satellite Located at 110 o West Longitude – Cities with large increases in Unavailability (Outage). Comparison of Availability and Unavailability Attributable to MVDDS for Various Criteria. (all values are expressed as a percentage over a year) Baseline (rain only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) City Availability Outage Availability Outage Availability Outage Washington, DC 99.7360 0.2640 99.6644 0.3356 99.7096 0.2904 Pittsburgh 99.7955 0.2045 99.7393 0.2607 99.7751 0.2250 Philadelphia 99.7283 0.2717 99.6498 0.3502 99.7011 0.2989 New York 99.7483 0.2517 99.6783 0.3217 99.7231 0.2769 Boston 99.7801 0.2199 99.7136 0.2864 99.7581 0.2419 Nashville 99.7140 0.2860 99.6482 0.3518 99.6854 0.3146 Table 2: Satellite Located at 110 o West Longitude - Cities with large increases in Unavailability. Comparison of Changes in Availability and Unavailability Attributable to MVDDS for Various Criteria Column 1 Column 2 Column 3 City Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference Between Regional EPFD and assumed 10% limit Increase in Outage over Baseline (Using regional EPFD) (%) Washington, DC 0.0716 0.0452 27.1 Pittsburgh 0.0562 0.0357 27.4 Philadelphia 0.0785 0.0513 28.9 New York 0.0700 0.0448 27.8 Boston 0.0665 0.0445 30.2 Nashville 0.0658 0.0372 23.0 Note: The absolute value of the difference is the same whether comparing availability or outage (unavailability). 163 Data is taken from Second R& O, Appendix G. 27 Federal Communications Commission FCC 03- 97 28 Table 3: Satellite Located at 101 o West Longitude – Cities with small increases in Unavailability (Outage). Comparison of Availability and Unavailability Attributable to MVDDS for Various Criteria. (all values are expressed as a percentage over a year) Baseline (rain only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) City Availability Outage Availability Outage Availability Outage Greenville 99.926 0.074 99.922 0.078 99.919 0.081 Charlotte 99.945 0.055 99.955 0.045 99.954 0.046 Washington, DC 99.958 0.042 99.956 0.044 99.954 0.046 Indianapolis 99.911 0.089 99.909 0.091 99.902 0.098 Pittsburgh 99.968 0.032 99.966 0.034 99.965 0.035 Columbus 99.961 0.039 99.960 0.040 99.957 0.043 Table 4: Satellite Located at 101 o West Longitude - Cities with large increases in Unavailability. Comparison of Changes in Availability and Unavailability Attributable to MVDDS for Various Criteria Column 1 Column 2 Column 3 City Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference Between Regional EPFD and assumed 10% limit Increase in Outage over Baseline (Using regional EPFD) (%) Greenville 0.004 (0.003) 5.444 Charlotte 0.003 (0.002) 5.544 Washington, DC 0.002 (0.002) 5.762 Indianapolis 0.002 (0.007) 2.249 Pittsburgh 0.002 (0.001) 5.865 Columbus 0.001 (0.002) 3.791 Notes: The absolute value of the difference is the same whether comparing availability or outage (unavailability). Values shown in brackets indicate performance exceeding an assumed 10% limit. 55. As shown in Table 2, the increase in unavailability (or decrease in availability) of DBS service over the baseline unavailability for cities with the largest percentage increase in unavailability is less than one- tenth of one percent in all cases for the satellite located at 110 o West Longitude. For the satellite located at 101 o West Longitude, Table 4 shows even better results for cities with the least percentage increase in unavailability – less than one- hundredth of one percent. Thus, for all cities, the increase in unavailability is very small. 164 To illustrate even further that, in many cases, seemingly large values for the increase in DBS unavailability result in insignificant outage in absolute terms, it is instructive to look at a city where the baseline outage is very small. In Denver, the increase in outage over the baseline due to MVDDS is 14%, but the actual increase in minutes is predicted to be a mere 22.5 minutes over an entire year. 165 These outage increases due to MVDDS are significantly less than the 164 See Appendix D for results from all satellites and all cities. 165 See Appendix D for complete data. In Denver, the baseline unavailability for a year is 0. 0296%. The unavailability rises to 0. 0339% per year with MVDDS operating under our regional EPFD limits. This represents an increase in unavailability of 14%, but the absolute increase in outage percentage is only 0. 0043 (i. e., 0.0339 – (continued....) 28 Federal Communications Commission FCC 03- 97 29 seasonal and yearly variability in actual rain fall rates, and therefore, the variability in outage already experienced by many DBS customers. 166 In any event, we also note that consumers will never see outages of the magnitude shown. As alluded to above, in August, 2002, EchoStar launched a new satellite into the orbital slot at 110 o West Longitude and began operation in October, 2002. 167 This satellite uses a CONUS beam for national coverage and spot beams, which concentrate more power into specific geographic areas, 168 to provide local TV channels. We observe that the CONUS beam of the new satellite provides approximately 3 dB more power than the old satellite. Because we have specified a hard EPFD limit, DBS operators (and consumers) get the performance benefits of these new satellites whether they receive their signal from the CONUS beam only or a combination of the CONUS beam and a spot beam. This is clearly illustrated in the Second R& O, where the Commission showed how the new spot beam satellite at 119 o West Longitude would decrease unavailability. 169 Similar results are seen for (... continued from previous page) 0.0296 = 0.0043). The corresponding increased unavailability per year in terms of minutes is calculated by multiplying the increase in unavailability percentage by the number of minutes in a year: 0. 0043/ 100 * 8766 hours/ year * 60 minutes/ hour = 22. 6 minutes/ year. Note: the increase in unavailability percentage is divided by 100 because it is expressed as a percentage. Also the result of 22.6 minutes/ year differs from the previously stated 22.5 minutes/ year. This difference can be attributed to rounding as various calculations have been made. 166 Footnote 179 of the Second R& O noted that there are seasonal and yearly variations in the amount of rain in any given area. For example, we showed the variation in amount of rain for January and August for Reno, NV and Allentown, PA over a twelve year period. (Source: National Climatic Data Center http:// lwf. ncdc. noaa. gov/ oa/ climate/ research/ cag3/ city. html). Rain (inches/ month) Reno, NV Allentown, PA Year January August January August 2001 0.18 0.00 2.37 2.50 2000 2.14 0.79 1.99 5.22 1999 0.76 0.82 5.44 3.81 1998 1.10 0.00 3.42 3.12 1997 3.32 0.00 3.38 5.12 1996 1.33 0.16 7.32 0.91 1995 3.31 0.00 3.49 0.76 1994 0.06 0.00 5.69 6.18 1993 2.42 0.00 1.98 5.39 1992 0.13 0.28 1.73 4.08 1991 0.01 0.24 2.77 2.54 1990 0.62 0.21 4.57 6.47 167 EchoStar VIII was launched on August 21, 2002 and began operation in October 2002. See http:// www. dishnetwork. com/ content/ aboutus/ satellites/ echo8/ index. shtml and http:// biz. yahoo. com/ e/ 021114/ dish10- q. html for more details. For technical details of the new satellite see also Application of EchoStar Satellite Corporation for Authority to Launch and Operate EchoStar VIII, File No. SAT-LOA- 20020329- 00042; Application of EchoStar Satellite Corporation for Minor Modification of DBS Authorization, Launch and Operating Authority EchoStar VIII, SAT- MOD- 20020329- 00041; and the Revised Technical Appendix, SAT- AMD- 20020430- 00086. 168 Older DBS satellites tried to cover the whole of the U. S. with one continental antenna beam. Newer satellites use multiple antennas or beams which focus the signal onto smaller locations or spots, and have the effect of increasing the signal level in those areas. See, also, footnote 164, supra. 169 Footnote 211 of the Second R& O provided an example. We calculated a baseline outage of 1331. 7 minutes per year in Atlanta when viewing the satellite at 119 o west longitude. On February 21, 2002, EchoStar launched a new satellite, EchoStar 7, to this orbital location. This satellite is more powerful than the previous satellite at 119 o west (continued....) 29 Federal Communications Commission FCC 03- 97 30 the new satellite at 110 o West Longitude. 170 As a final point, EchoStar disputes our contention that newer satellites and technology will improve the DBS situation, claiming that their new satellite employs the same output tube as its previous satellite (i. e., the one used for our analysis). 171 Clearly, as shown from our examples, even with the same output tube, the power from the new satellites is now being concentrated into a stronger CONUS beam and spot beams, which has the practical effect of providing more power to consumers’ receive antennas, thereby making it less susceptible to interference from another source such as MVDDS. 56. It is also important to recognize that the unavailability increases calculated from our adopted EPFDs are worst case. In most instances, consumers will experience increases below these levels. The Commission used very conservative assumptions when determining the EPFD levels. Among these, the Commission assumed free space path loss over a flat earth; natural shielding by terrain, foliage, and buildings was not considered. the Commission also assumed a rain faded DBS signal, but a full strength MVDDS signal. Because they will use the same frequencies, rain affects both DBS and MVDDS in a similar fashion causing faded signals. Rain tends to be localized events and in many cases the same rain that fades the DBS signal would also fade the MVDDS signal. Further, the Commission assumed a quasi- error free (QEF) DBS threshold receiver value. 172 At the threshold for QEF performance, interference from MVDDS would be essentially imperceptible to a DBS customer. In fact, customers would not be able to perceive any degradation to their picture until the DBS signal dropped to a level below this threshold. 173 We also observe that consumers will not necessarily be impacted by the full (... continued from previous page) longitude and will also use spot beams to many markets. In Atlanta, this translates to a reduction in baseline outage to 645. 9 minutes per year for the general DBS signal and to 156.5 minutes per year for those channels that are transmitted using the spot beam. See Application of EchoStar Satellite Corporation for Minor Modification of DBS Authorization, Launch and Operating Authority for EchoStar 7, File Nos. SAT- MOD- 20010810- 00071 & SAT- A/ O- 20010810- 00073, (August 10, 2001). As shown in the table below, a corresponding decrease in the outages caused by MVDDS would also be seen: Atlanta, GA Satellite Baseline Outage Baseline Outage plus 10% Increase EPFD For 10% Increase FCC Adopted EPFD Outage With FCC EPFD Outage Increase Difference Between Calculated And FCC EPFDs (minutes) (minutes) (dBW/ m 2 /4 kHz) (minutes) % (minutes) dB Previous 1331. 7 1464. 87 -169. 4 -168. 4 1510 13. 4 178.3 0.96 Echo7 (General) 645.9 710.49 -166. 5 -168. 4 686.4 6. 3 40. 5 -1. 9 Echo 7 (Spot) 156.5 172.15 -160. 3 -168. 4 158.7 1. 4 2.2 -8. 1 170 See Appendix D, Table 6 for data showing the decrease in outage using the new spot beam satellite compared to the previous satellite. 171 EchoStar, DIRECTV joint petition at Verified Statement of Edmund F. Petruzzelli, p. 5. 172 Quasi- error free (QEF) performance equates to 1 uncorrectable error per hour. The QEF value represents an audio/ video signal that appears essentially error- free to the DBS customer; almost all errors that occur in transmission can be corrected using forward error correction at the DBS customer’s decoder. 173 Other performance levels also exist. For example, if a DBS signal drops below the operating threshold, the subscriber may experience a pixilated picture (i. e., portions of the picture may be represented as a blank square). There is also a freeze- frame threshold below which viewing becomes difficult. When the bit error rate of the demodulated MPEG video bit stream is sufficiently high to cause the associated video MPEG decoder to cease to (continued....) 30 Federal Communications Commission FCC 03- 97 31 amount of any increase in unavailability as outages do not always occur at the precise moment when television is being watched – sometimes they occur when people are sleeping or away from home, or at times when they are not watching. In consideration of these factors, along with the use of newer satellites (as described above), we are confident that DBS consumers will not experience outages to the extent that our worst case modeling calculated. 57. Regarding the “wing” satellites – those with partial CONUS coverage located at 61.5 o and 148 o West Longitude - EchoStar and DIRECTV assert that the Commission did not include these satellites in the development of EPFDs. They are correct. However, neither EchoStar nor DIRECTV provide any data or calculations showing how using these “wing” satellites would have changed the EPFD limits. The Commission reasoned that because the footprint of the full CONUS satellites encompass the footprint of the partial CONUS satellites, and the operating characteristics (i. e., power) are similar, the Commission believed that it could simplify the calculations by developing the EPFD limits using only the CONUS satellites. The Commission believed that the EPFDs calculated based on the CONUS slots would result in comparable increases in unavailability to DBS subscribers who receive programming from the other slots. To ensure the validity of this approach, sample calculations were performed on the satellites at 61.5º and 148º west longitudes to determine the increases in unavailability that would result from our EPFD limits. These calculations, which were contained in the Second R& O, confirmed that impact of the adopted EPFD limits is acceptable in locations where reliable DBS service could be expected. 174 Our goal throughout this proceeding has been to allow the introduction of a new service while still protecting DBS. If our calculations had produced results inconsistent with those of the CONUS satellites, the Commission would have reconsidered our approach towards these satellites. To do otherwise would have been irresponsible and not in keeping with our goal of protecting DBS service. As a corollary, the same reasoning holds with respect to the concerns of DBAC who is proposing to use Canadian- licensed satellites located at 82 o and 91 o West Longitude to provide two- way digital data and video services to U. S. consumers. 175 We observe that these satellites are located between the U. S. licensed satellites located at 61.5 o and 101 o West Longitude. To serve the U. S., the footprint of DBAC’s proposed satellites must be encompassed by the existing U. S. satellites. Thus, assuming that these (... continued from previous page) provide one or more pictures, the video decoder initiates error concealment techniques, such as the presentation of the last available MPEG picture (freeze frame). By using the QEF threshold (i. e., the highest threshold value) in the predictive model, the Commission evaluated the worst case impact on DBS signal quality. Finally, we note that the DBS licensees used the less stringent operating threshold in developing the EFPD levels associated with NGSO FSS operation. In that case EchoStar and DIRECTV assumed an operating threshold of 6. 1 dB and 5 dB, respectively. See ITU- R Recommendation BO. 1444, Annex 1. The database of representative links is available on the ITU’s website at http:// www. itu. int// itudoc/ itu- r/ sg11/ docs/ sg11/ 1998- 00/ contrib/ 138e2. html. The QEF thresholds as specified by MITRE are 8.1 dB and 8.4 dB for EchoStar and DIRECTV, respectively. See MITRE Report at 3- 18. Thus our use of QEF is 2 dB more conservative than EchoStar and 3.4 dB more conservative than DIRECTV with respect to the values they supplied for the NGSO FSS analysis. 174 See Second R& O, Appendix G. Additionally, we note that MITRE suggested that it does not make sense to tailor the MVDDS interference criterion to protect DBS operations where reliable service is not now expected. See MITRE Report at 6- 7 (suggesting that locations with more than 100 hours of baseline outage should not be protected). In this regard, the two sample calculations for Seattle from both the satellite at 61. 5º and at 148º had baseline outages in excess of 100 hours indicating that calculations should take into account the use of larger DBS receive antennas. Excluding the values for Seattle, the data for the satellites at 61.5 o and 148 o show “outage increases” from 4.4% to 28.5% with a median value of 7.3% and a mean of 10. 8%. These values compare favorably with the values for the CONUS satellites in our 32- city sample. 175 Unlike the pending petition from SES Americom, DBAC proposes to use satellites that are part of the Region 2 BSS plan. We also note that DBAC did not file a petition for reconsideration in this proceeding. However, for completeness we address their specific concern herein. 31 Federal Communications Commission FCC 03- 97 32 satellites are similar to the U. S. licensed satellites (DBAC provides no technical information regarding there proposed satellites), DBAC should be adequately protected. 58. With respect to EchoStar and DIRECTV’s assertion that the rules are deficient because the record does not contain any assurance as to the accuracy of the predictive model, we find that argument to be without merit. Our model used similar methodology as that used by MITRE and DIRECTV in their analyses. While the calculations of DBS outage are complex, they generally follow methodology developed and recognized internationally by the ITU. For example, the Commission developed an excel spreadsheet implementing ITU- R Recommendation P. 837 to calculate rainfall rates that are an essential input to model. 176 Similarly, our model incorporated procedures from ITU- R Recommendation P. 618- 6, 177 ITU- R Recommendation P. 838- 1, 178 ITU- R Recommendation P. 841- 1, 179 and ITU- R Recommendation P. 839. 180 These Recommendations have not been disputed throughout this proceeding. 181 To ensure that the inputs to the model were accurate, the Commission used data gathered from MITRE, the DBS licensees’ applications, and from the information on file with the ITU used for the sharing studies of DBS and NGSO FSS. This data has been on the record and has never been disputed. Therefore, based on the use of these data and the use of accepted modeling techniques, we believe that our model is as accurate as possible given the inherent variability of rain rates from year to year. 59. Moreover, we find that insistence on - or the absence of - the certainty sought by petitioners does not support reconsideration. The analysis and discussion in the Second R& O clearly demonstrate that the Commission has given serious consideration to a wide array of complex technical factors in formulating the predictive model and related rules in a manner that we believe will be effective. Based upon this careful consideration, the Commission concluded that the predictive model along with the resulting rules and procedures that were adopted should protect DBS from harmful interference and should otherwise be workable and beneficial in practice as predicted. At the same time, we also note that determinations of this nature may be, as the courts have observed in other instances, “at once a highly technical and somewhat speculative undertaking” and that such determinations “are precisely the sort that Congress intended to leave to the broad discretion of the Commission.” 182 Therefore, we find that the 176 See ITU- R Recommendation P. 837, “Characteristics of precipitation for propagation modeling.” We provided the Excel spreadsheet that calculates the rain rate exceeded 0.01% of an average year to the public through our web site. See http:// www. fcc. gov/ oet/ dockets/ et98- 206/. 177 See ITU- R Recommendation P. 618, “Propagation Data and Prediction Methods Required for the Design of Earth- Space Telecommunication Systems.” 178 See ITU- R Recommendation P. 838- 1, “Specific attenuation model for rain for use in prediction methods.” 179 See ITU- R Recommendation P. 841- 1, “Conversion of annual statistics to worst- months statistics.” 180 See ITU- R Recommendation P. 839, “Rain height model for prediction methods.” 181 We note however, that DIRECTV, in making its original comments used an earlier version of ITU Recommendation P. 618. They assumed version 5. Northpoint, in making their calculations used version 6. After careful consideration, we decided to use version 6 in our mode after determining that it provided better accuracy than version 5. See Second R& O at ¶ 81. 182 C. f. National Association of Regulatory Utility Commissioners v. FCC, 525, F. 2d 630, 636 (1976) (“ The orders under review reveal that the Commission has given serious consideration to the arguments raised as to the extent of the allocation. They reveal also that the determination of how much bandwidth to allocate to cellular systems is at once a highly technical and somewhat speculative undertaking. The amount of spectrum that is appropriate depends upon an estimate of the nature and capabilities of technology that is now only partially developed, and upon projected demands […]” “[…] We conclude that such determinations are precisely the sort that Congress intended to leave to the broad discretion of the Commission by imposing a broad public convenience, interest or necessity standard.”) 32 Federal Communications Commission FCC 03- 97 33 determinations made by the Commission in the Second R& O are appropriately dependent upon the exercise of our judgment under the broad statutory authority of the Communications Act. 183 60. In regard to field testing, we point out that it has never been a requirement under our rules that field testing be carried out prior to allowing a new service to begin operation. All that is required is that the Commission consider the facts on the record and create rules to protect primary users of the spectrum from harmful interference. We believe that our extensive modeling of the interactions between MVDDS and DBS demonstrate that this is the case here, as has been done for the implementation of many new services that the Commission has authorized over the years. Thus, we do not believe that field testing is necessary. We do note however that some field testing has been done, although not by the Commission. MITRE conducted a simulation of the interaction between DBS and MVDDS and determined that sharing between these services was feasible. In addition, Northpoint, MDS America, DIRECTV and EchoStar have field tested MVDDS systems under experimental authorizations. 184 In general, these tests support our analysis and show that MVDDS and DBS can coexist. 61. As mentioned earlier, a zone exists around each transmitter where it is possible that the EPFD, absent any mitigation, may exceed the adopted limit. Our model calculates the contour that defines this zone. EchoStar and DIRECTV aver that DBS subscribers located outside the predictive contour are not protected from harmful interference even if they are subject to higher power from MVDDS than the model predicts. We disagree with this assertion as it is contrary to a straightforward reading of our rules. Our rules have been designed to ensure that all DBS subscribers, no matter where they are located, are protected from harmful interference caused by MVDDS. Our model provides the parties with essential information regarding the area where the EPFD could be exceeded based on power levels, antenna pattern, and antenna height. We understand that other interactions, such as reflections or multipath, could occur which, although unlikely, 185 could cause a DBS subscriber located outside the predicted contour to receive an EPFD above the adopted level. We contemplated this possibility and crafted the rules with this in mind. Thus, Section 101.1440( g) of our rules states that, “[ t] he MVDDS licensee must satisfy all complaints of interference to DBS customers of record which are received during a one year period after commencement of operation of the transmitting facility. Specifically, the MVDDS licensee must correct interference caused to a DBS customer of record or cease operation if it is demonstrated that the DBS customer is receiving harmful interference from the MVDDS system or that the MVDSS signal exceeds the permitted EPFD level at the DBS customer location. MVDDS must satisfy all complaints of interference.” 186 Nowhere does this rule stipulate that MVDDS must only satisfy 183 As the courts have found, “To insist upon concrete proof that a proposed innovation will succeed without undesirable side effects would be effectively to relegate the Commission to preserving the status quo. All that is required is that the Commission set forth generally the bases for its informed prediction that the plan should be workable and beneficial.” [Emphasis added]. See Telocator Network of America, 691 F. 2d 525 (D. C. Cir. 1982). 184 See, e. g., Northpoint’s December 1998, Progress Report WA2XMY; Northpoint’s October 1999 Progress Report WA2XMY. See also, MDS America Experimental License Callsign WC2XPU. See also, MDSA Clewiston Phase I Test Report, (Oct. 16, 2001). On February 9, 2000, the Commission granted DIRECTV and EchoStar experimental authorizations in Washington, D. C. and Denver, CO to test DBS sensitivity to fixed service transmissions, such as those proposed by Northpoint. On July 25, 2000, DIRECTV and EchoStar filed a “Report of the Interference Impact on DBS Systems from Northpoint Transmitter Operating at Oxon Hill, MD, May 22 to June 7, 2000” for the Commission’s consideration. 185 Each time a RF wave reflects it loses some energy. To protect DBS, our rules limit MVDDS to a fairly weak signal (14 dBm EIRP). By the time the signal propagates past a DBS receive antenna located outside of the predicted contour, reflects off a surface, and propagates back to that DBS receive antenna, the signal, which we have already predicted to be below the adopted EPFD level, will be at such a low level that there should be no effect on DBS service. 186 See 47 C. F. R. § 101.1440. 33 Federal Communications Commission FCC 03- 97 34 complaints of interference from DBS customers located within the predicted contour. Thus, we believe the complaint of EchoStar and DIRECTV to have no merit. 62. Even after carefully crafting rules that protect DBS, the Commission added a provision to provide a remedy in the event that an anomalous situation arises for which our model may not correlate with the experience of DBS customers. This “safety valve” rule is criticized by EchoStar and DIRECTV. Again, we disagree with the petitioners. First, we have clearly shown that our decisions in this preceding have been reasoned, based on the record, and neither arbitrary nor capricious. In practice, we do not believe that parties will have to resort to the safety valve; and we find that its use in a few limited situations will certainly not overshadow the adopted rules. Second, the petitioners other argument centers around an assertion that the rule is vague and that the Commission does not lay out exactly what they may need to specify in the event that they wish to use the safety valve. We are not sympathetic to this argument. In many cases, the Commission provides opportunities for licensees to petition for adjustments to rules (outside the waiver process) without specifying in exacting detail how such a filing should be made. 187 We cannot anticipate every circumstance and, consequently, prefer that the affected parties have sufficient flexibility to demonstrate the requirements as they see best. However, to provide some guidance, our intent is that the safety valve be used for situations that are outside of the norm (i. e., anomalous). For example, if there is an area within one of our defined regions where the rain rate is inconsistent with the rest of the region, a DBS licensee can provide proof of this situation and a showing that their customers could be adversely affected. In such a case, the Commission would consider the facts and, if deemed appropriate, adjust the EPFD for this specific location to account for the uncharacteristic situation. We believe that the safety valve rule as written is a useful tool to ensure that MVDDS operations fully protect DBS. 63. After review of our technical findings from the Second R& O, we find that the adopted rules were borne out of reasoned decision making - they are both reasonable and lawful - and that the Commission provided rational explanations for each of our decisions after consideration of all the facts of record. The Commission adopted these rules fully aware that there would be some minor impact on DBS service, but found that such a result was outweighed by the potential addition of a competitor to the MVPD market. In crafting the rules for this new service, the Commission was careful to insure that any such impact to DBS, both existing and future, were minimized to ensure a lack of harmful interference (in light of the conservative values used, the interference avoidance measures that the DBS customer can employ with a minimum of difficulty, and the added protections that the safety valve provides). We conclude that petitioners’ wide range of allegations that the adopted rules and procedures are arbitrary and capricious and violate the APA are without merit in all respects and must be denied. 3. Implementation Issues 64. Petitions overview. EchoStar and DIRECTV argue that the MVDDS entry procedures are arbitrary, capricious and unsupported by the record and are not adequate to protect DBS customers from harmful interference. 188 In particular, EchoStar, DIRECTV and SBCA assert that the rules do not ensure that the MVDDS entity will conduct an accurate or complete site survey. EchoStar and DIRECTV claim that the lack of clear direction may cause the MVDDS provider simply to sample a number of sites or to 187 For example, private land mobile licensees operating in the 450- 470 MHz band are limited to specific ERP/ antenna height combinations and service areas with radii no greater than 32 kilometers. However, the rules also provide: (1) that “[ a] pplications … where special circumstances exist that make it necessary to deviate from the ERP and antenna heights … will be … accompanied by a technical analysis base upon generally accepted engineering practices and standards, that demonstrates that the … parameters will not produce a signal strength in excess of 39 dBu …”; and (2) “[ a] n applicant for a …service area radius greater than 32 km (20 mi) must justify the requested service area radius, …”. See 47 C. F. R. §§ 90. 205( g)( 2) and 90. 205( g)( 3). 188 See EchoStar, DIRECTV joint petition at 5. 34 Federal Communications Commission FCC 03- 97 35 go door- to- door seeking information, and that 45 days is not sufficient time for DBS entities to notify an MVDDS provider whether the EPFD contours have been correctly calculated and whether the EPFD limits are exceeded at any DBS customer location. 189 EchoStar and DIRECTV also object to the requirement that the DBS provider provide a list of new DBS installations to the MVDDS provider since this information is proprietary and competitively sensitive, thus subject to misuse by an MVDDS operator. SBCA suggests that the DBS provider may only have billing information for a customer but not know the receiver location. SBCA asserts that the rules do not require the MVDDS licensee to check EPFD levels at locations that were not included on the initial survey, but later identified by the DBS licensee. 190 SBCA also is concerned that the EPFD measurements will not be accurate if taken at the property line, not at the actual installation site, and EchoStar and DIRECTV argue that the Commission has not identified a standard for field measurement of EPFD levels. EchoStar and DIRECTV also assert that allowing the MVDDS provider attempt to get DBS customers to waive EPFD limits at a particular site could lead to mischief (e. g., misrepresentation to the customer of its interference rights). 191 65. EchoStar and DIRECTV also request that we clarify the dispute resolution process. They claim that the rules suggest that disputes will be resolved within the remaining 45 days after the DBS companies respond to the coordination notification, but the rules are silent on how disputes should be resolved and what happens if disputes are not resolved within this period (e. g., can the MVDDS transmitter begin operations). 192 66. MDS America asks us to reconsider the MVDDS entry procedures to eliminate the site survey, which they argue is cumbersome and expensive, and the requirement that DBS entities identify new customers for the MVDDS provider. They urge instead that we simplify the coordination requirements by requiring DBS providers to identify, within 45 days of the receipt of the notice required by section 101.1440( d) of the rules, only those locations of a DBS customer of record which they believe would receive harmful interference from the proposed MVDDS transmitter. 193 Northpoint disagrees with MDS America’s request and argues that it can properly site its transmitters without having access to DBS customer information. 194 67. Decision. We find petitioners' argument that the Commission failed to provide sufficient detail or specificity about MVDDS entry procedures to be without merit. In our view, petitioners have strained to take the relatively straightforward rules and procedures that were adopted and construe them in a vacuum devoid of any assumption of reasonableness or good faith by the parties involved. Moreover, as a practical matter, we believe that the excessive level of regulatory oversight sought by petitioners, if adopted, would result in sharing rules and entry procedures that are so burdensome, inflexible and complex that the entire implementation plan would not serve the public interest. In contrast, we note the Commission has previously taken a more flexible approach in other proceedings that involved far more complex interactions among competing licensees. For example, in the Emerging Technologies proceeding, 195 and the subsequent 18 GHz Relocation and 2 GHz Relocation proceedings, we declined to 189 See EchoStar, DIRECTV joint petition at 19. 190 See SBCA petition at 17. SBCA also points out that DBS companies generally do not know the location of the DBS antenna on the subscriber’s property, and therefore it is inappropriate to rely on the DBS licensee to oversee the MVDDS survey process. 191 See EchoStar, DIRECTV joint petition at 21. 192 Id. at 22- 23. 193 MDS America petition at 24. 194 Northpoint consolidated response at 14. 195 See ET Docket No. 92- 9, specifically, the First Report and Order and Third Notice of Proposed Rulemaking, 7 FCC Rcd 6886 (1993), at Appendix A, pages 6896- 6897. 35 Federal Communications Commission FCC 03- 97 36 adopt excessively detailed negotiation requirements between licensees in situations involving the obligation of one service to pay for and install replacement facilities for licensees of another service on a nationwide basis. 196 Instead, the Commission provided only general guidelines, along with the requirement that the parties deal in good faith. In this manner, the Commission left it to the parties to determine the specific details of negotiating a resolution consistent with our general rules, timelines and procedures. We believe that the same broad approach should be workable and beneficial here. 68. For additional perspective on our decision, we also make the following observations. As an initial matter, we believe that petitioners’ arguments greatly distort the rules and procedures that were adopted by consistently exaggerating the rare exception and making it the norm. For example, whereas petitioners paint a picture of pervasive harmful interference to DBS, we believe that the chances of harmful interference occurring are negligibly small. Regarding the petitioners’ fear that MVDDS will not conduct an accurate or complete survey that is required by Section 101.1440( b), we believe that MVDDS licensees acting in good faith can readily conduct fully adequate surveys in light of our related discussions in the Second R& O. Indeed it is in their best interest to perform a survey as accurate as possible, since they assume all of the risk in the first year of MVDDS operation, i. e., they must correct interference or cease operation if they cause harmful interference to or exceed the permitted EPFD limits to a DBS customer of record. 197 We do not eliminate the site survey requirement, as MDS America requests, because we conclude that the proper site selection and design of the MVDDS transmitter depends in large part on conducting a site survey of DBS receive locations. It is thus proper to require the MVDDS operator to perform such a survey and share its results with the DBS provider, rather than shift the burden to the DBS provider to analyze the proposed MVDDS transmitter characteristics and the impacts on DBS customers. We thus affirm our decision and conclude that a site survey, in conjunction with other adopted procedures, will protect DBS customers. 69. Concerning the petitioners’ criticism that the 45 day response time of Section 101.1440( d)( 2) provided to the DBS provider is arbitrarily short, we note that the Commission decided upon the adopted time frame based upon all the information of record and in light of our best judgment of what would, on balance, be equitable to all parties and would be in the public interest. In particular, the Commission concluded that the time frame provides a reasonable balance between the needs of DBS licensees to ensure protection of their customers before MVDDS begins operation while affording MVDDS licensees the ability to initiate service on a reasonably expeditious basis. Further, DBS customers are protected once MVDDS begins operation because, as noted above, the MVDDS provider must correct interference or cease operation if they cause harmful interference to or exceed the permitted EPFD limits to a DBS customer of record. We thus affirm our decision and conclude that the 45 day response period provides adequate protection for DBS customers. 70. Some petitioners also express concern regarding the requirement of Section 101.1440( d)( 2) to provide a list of DBS customers that began service within 30 days after the MVDDS notice is provided and the possible uses to which such information could be put. MDS America has proposed an alternative procedure whereby the DBS entity only identifies those locations of DBS customers of record that they believe would receive harmful interference from the proposed MVDDS transmitter. We believe that this alternative approach has some merit in this case. Consequently, we will modify Section 101.1440( d)( 2) to allow DBS providers to identify only those new DBS customers of record which they believe would receive harmful interference from the proposed MVDDS transmitter, rather than identify all new customers during the 30 day period. This approach addresses the desire of the DBS licensees to protect 196 For the 18 GHz Relocation proceeding see Report and Order, IB Docket No. 98- 172, 15 FCC Rcd 13430 (2000) at ¶76 et seq; and for the 2 GHz Relocation proceeding see Second Report and Order and Second Memorandum Opinion and Order, ET 95- 18, 15 FCC Rcd 12315 (2000), at ¶¶ 70- 74. 197 47 C. F. R. § 101. 1440( g). 36 Federal Communications Commission FCC 03- 97 37 information that they believe is competitively sensitive while ensuring that the MVDDS operator has an opportunity to protect DBS customers from interference. We note that this approach is consistent with other provisions in our rules which allow DBS providers to identify those DBS receive locations that they believe may have been missed in the site survey or where the prescribed EPFD limits could be exceeded. 198 71. Concerning a methodology for measuring EPFD values, we believe that any measurement techniques we might describe would artificially limit the flexibility of the licensees to perform these measurements, and may seemingly prohibit the use of a technique that is satisfactory for this purpose. It is up to the licensees to perform these measurements in accordance with good engineering practices, and we decline to provide a detailed measurement procedure for this case. 72. Concerning dispute resolution procedures, we clarify that the MVDDS transmitter can be turned on after expiration of the 90- day period specified in Section 101.1440. We believe that our EPFD contour methodology will reduce disputes to a minimum, and this time frame will ensure that licensees participate in conflict resolution in good faith. We do not believe that it would be in the public interest to hold hostage the implementation of a new service due to what we believe will be a negligible number of disputes in practice. We believe that the risk to DBS customers of record is minimal since our rules also provide that the MVDDS provider must correct interference or cease operation if they cause harmful interference to or exceed the permitted EPFD limits to a DBS customer of record. 199 B. Multichannel Video Distribution and Data Service Rules 1. Dismissal of Pending Applications 73. On January 8, 1999, April 18, 2000, and August 25, 2000, Northpoint, Pegasus, and SRL, respectively, filed applications and waiver requests for terrestrial use of the 12 GHz band with the Commission. 200 On December 8, 2000, the Commission requested comment on the disposition of these waiver requests and applications. 201 The Commission asked, among other things, whether the Ku- Band Cut- Off Notice 202 and the November 24, 1998 NPRM 203 gave adequate notice to all parties interested in filing applications for terrestrial use of the 12 GHz band. 204 74. Subsequent to the release of the First R& O and Further Notice, Congress passed the LOCAL TV Act, requiring the Commission to provide for independent testing of technology proposed by 198 47 C. F. R. § 101. 1440( d)( 2). 199 47 C. F. R. § 101. 1440( g). 200 Broadwave Albany L. L. C., et al., Applications for Licenses to Provide a New Terrestrial Transport Service in the 12 GHz band, Various DMAs (filed Jan. 8, 1999); PDC Broadband Corporation Applications for Licenses to Provide Terrestrial Service in the 12.2- 12.7 GHz Band in all DMAs (filed Apr. 18, 2000); Satellite Receivers, Ltd. Application for Licenses to provide Terrestrial Broadcast and Data Services in the 12. 2- 12.7 GHz Band in Illinois, Indiana, Iowa, Michigan, Minnesota and Wisconsin (filed Aug. 25, 2000). 201 . First R& O and Further Notice, 16 FCC Rcd 4096, 4217 ¶¶ 325- 330 202 See Public Notice, International Bureau Satellite Policy Branch Information: Cut- off Established for Additional Applications and Letters of Intent in the 12. 75- 13. 25 GHz, 13. 75- 14. 5 GHz, 17. 3- 17.8 GHz and 10. 7- 12. 7 GHz Frequency Bands, Report No. SPB- 141, 1998 WL 758449 (rel. Nov. 2, 1998) (Ku- Band Cut- Off Notice). 203 November 24, 1998 NPRM, 14 FCC Rcd 1131, 1138 ¶¶ 8- 9. 204 See First R& O and Further Notice, 16 FCC Rcd at 4217- 4219 ¶¶ 323- 328. 37 Federal Communications Commission FCC 03- 97 38 applicants seeking to provide terrestrial service in the 12 GHz band. 205 The Commission selected the MITRE Corp. (MITRE) to conduct this testing. MITRE filed its report detailing its testing on April 18, 2001. 206 75. On May 23, 2002, the Commission dismissed the Northpoint, Pegasus and SRL applications and waiver requests as prematurely filed because there was inadequate notice to all entities interested in filing applications for licenses to provide terrestrial services in the 12 GHz band. 207 In addition, the Commission determined that Section 1012 of the LOCAL TV Act does not limit the field of applicants for 12 GHz band terrestrial licenses only to those entities that filed an application with the Commission on or before enactment of the statute. 208 In this connection, the Commission concluded that the underlying purpose of the LOCAL TV Act is to provide assurance that terrestrial operations in the 12.2- 12.7 GHz band will not disrupt DBS service, and determined that this purpose is served by requiring MVDDS entities to comport with the rules established in this proceeding. 209 76. Discussion. For the reasons set forth below, we affirm the Commission’s disposition of the applications and waiver requests of Northpoint, Pegasus, and SRL. The Commission dismissed the applications because the Ku- band Cut- Off Notice did not provide adequate notice for all entities interested in filing applications for licenses to provide terrestrial services in the 12 GHz band. 210 Additionally, the Commission denied the associated waiver requests finding that no applicant satisfied the waiver 205 See Prevention of Interference to Direct Broadcast Satellite Services, Pub. L. No. 106- 553, 114 Stat. 2762 § 1012 (2000) (codified at 47 U. S. C. § 1110) (LOCAL TV Act). Congress passed the LOCAL TV Act on December 21, 2000. This legislation reads as follows: (a) Testing for Harmful Interference.- The Federal Communications Commission shall provide for an independent technical demonstration of any terrestrial service technology proposed by any entity that has filed an application to provide terrestrial service in the direct broadcast satellite frequency band to determine whether the terrestrial service technology proposed to be provided by that entity will cause harmful interference to any direct broadcast satellite service. (b) Technical Demonstration.- In order to satisfy the requirement of subsection (a) for any pending application, the Commission shall select an engineering firm or other qualified entity independent of any interested party based on a recommendation made by the Institute of Electrical and Electronics Engineers (IEEE), or a similar independent professional organization, to perform the technical demonstration or analysis. The demonstration shall be concluded within 60 days after the date of enactment of this Act and shall be subject to public notice and comment for not more than 30 days thereafter. (c) Definitions.- As used in this section: (1) Direct broadcast satellite frequency band.- The term “direct broadcast satellite frequency band” means the band of frequencies at 12. 2 to 12. 7 gigahertz. (2) Direct broadcast satellite service.- The term “direct broadcast satellite service” means any direct broadcast satellite system operating in the direct broadcast satellite frequency band. 206 The MITRE Corporation, “Analysis of Potential MVDDS Interference to DBS in the 12. 2- 12.7 GHz Band” (filed Apr. 18, 2001). 207 (Second R& O 17 FCC Rcd 9614, 9696- 97 ¶¶ 211- 14). 208 Id. at 9702- 03 ¶¶ 229- 31. 209 Id. at 9703- 04 ¶¶ 232- 35. The Commission noted that those who propose operations that do not comport with the Commission’s technical rules will be required to file a waiver petition, on which public comment will be sought. As part of the waiver process, the Commission determined that such entity must submit an independent technical demonstration of its equipment and technology, in compliance with the Act. Id. at 9704 ¶ 236. 210 Id. at 9697 ¶ 213. 38 Federal Communications Commission FCC 03- 97 39 standard. 211 However, Pegasus maintains that the Commission should interpret Section 1012 of the LOCAL TV Act to limit MVDDS licensing to those then- pending applicants that successfully participated in the independent testing. 77. Pegasus argues that it submitted a timely- filed application and successfully subjected its technology to testing. Consequently, it asserts that it was qualified to be an MVDDS licensee and the Commission should not have dismissed its application. Northpoint similarly argues that the Commission erred by dismissing its application. 78. We disagree with these assertions because the Commission did not dismiss their applications and deny their waiver requests because they did not satisfy the testing requirement. Rather, the Commission dismissed their applications because the Commission found that notice to file applications for terrestrial services was not “reasonably comprehensible” to interested parties and could not be made by implication. 212 79. In fact, the Commission determined that the Ku- Band Cut- Off Notice was completely silent concerning terrestrial use of the Ku- band. 213 Accordingly, the Commission found that Pegasus, Northpoint, and SRL did not properly file their applications. As a result, the Commission dismissed the applications without prejudice to refile when the Commission announces that it is accepting applications to provide terrestrial services in the 12 GHz band. 214 Section 1012 of the LOCAL TV Act does not require the Commission to grant any applications. It requires the Commission to provide for independent testing of any technology proposed “by an entity that has filed an application” when the Commission has entities before it that seek to provide terrestrial service in the 12 GHz band. 215 Section 1012 of the LOCAL TV Act also specifies certain parameters for the testing of technology proposed by “any pending application.” 216 At no point does the LOCAL TV Act mandate the grant of an application (especially an application filed in a defective manner without adequate notice), although Pegasus and Northpoint seek this interpretation of the LOCAL TV Act. We find this interpretation is counter to the public interest because it would encourage the filing of applications without adequate notice to all interested parties. 80. Instead of challenging the application dismissal and waiver denial, Pegasus and Northpoint maintain that the testing requirement of Section 1012 of the LOCAL TV Act limits the scope of potential applicants for the spectrum. Pegasus argues that the LOCAL TV Act requires the Commission to limit MVDDS licensing to the two qualified entities – Pegasus and Northpoint – that successfully participated in independent testing required by the Act. 217 Specifically, Pegasus asserts that because Section 1012( a) of the LOCAL TV Act expressly states that testing is required and is applicable to “any entity that has filed an application to provide terrestrial service,” and Congress did not address what future applicants would need to do, Congress clearly intended to limit MVDDS licensing to those then- pending applicants that 211 Id. at 9701- 9702 ¶ 228. 212 Id. at 9697 ¶ 214. 213 Id. at 9697 ¶ 213 citing McElroy Electronics Corp. v. FCC, 86 F. 3d 248, 257 (D. C. Cir. 1996); Ridge Radio Corp. v. FCC, 292 F. 2d 770, 773 (D. C. Cir. 1961); Maxcell Telecom Plus, Inc. v. FCC, 815 F. 2d 1551 (D. C. Cir. 1987). 214 Id. at 9697 ¶ 214. 215 Id. at 9702 ¶ 230. 216 Id. 217 Pegasus Broadband Corporation Petition for Reconsideration at 4, n. 12 (filed June 24, 2002) (Pegasus Petition). Pegasus submits that SRL did not participate in the MITRE testing, and thus is not eligible to participate in the licensing process. 39 Federal Communications Commission FCC 03- 97 40 successfully participated in the independent testing. 218 However, as noted previously, neither application was acceptable because interested parties did not receive notice and no technical rules existed to protect DBS. Consequently, the applications were defective as prematurely filed. 81. We further note that first, and foremost, on Congress’ mind when it adopted Section 1012 of the LOCAL TV Act was to avoid harmful interference. If Congress had intended the Commission to grant the applications, it would have mandated that result. Because Congress did not mandate grant of the applications, we believe that our interpretation complies with the intent of Section 1012 of the LOCAL TV Act. 82. Northpoint and SRL agree with Pegasus that we should not accept an MVDDS application from entities that did not have applications on file at the time of the enactment of the statute. However, Northpoint limits the field of applicants to one (itself), because it argues that the MITRE report based its conclusions solely on Northpoint’s technology as no one else submitted any equipment for testing. 219 On the other hand, SRL believes that the Commission should reinstate all three applications. 220 SRL avers that Section 1012 of the LOCAL TV Act simply requires the Commission to ensure that any applicant proposing to deploy terrestrial operations do so without causing harmful interference to DBS operations. 221 In addition, SRL avers that the Act does not require then- pending applicants to propose any technology or limit the field of applicants to those that participated in the independent testing. 222 83. Pegasus does not contest the Commission’s conclusion in the memorandum opinion and order portion of the Second R& O that the underlying purpose of Section 1012 LOCAL TV Act is to require a determination of whether any proposed terrestrial service would cause harmful interference to any DBS service. 223 This purpose comports with the Commission’s determination that Congress did not intend for the statute to limit the scope of applicants for the spectrum to those on file at the time, because we do not believe, and Pegasus does not argue, that this goal requires a limitation on prospective MVDDS providers. 84. Pegasus argues that if Congress had intended the Commission to continue to accept later- filed applications, it could have been more explicit. 224 In reviewing the statute, the Commission found that Section 1012( a) ’s requirement that it provide for independent testing of any technology proposed by “any entity that has filed an application” covers points in time (present or future) when the Commission has before it applications filed by entities that seek to provide terrestrial service in the 12.2 – 12.7 GHz band. 225 In contrast, the Commission determined that Section 1012( b) of the LOCAL TV Act, which 218 Id. 219 See Consolidated Response of Northpoint Technology, LTD., and Broadwave USA, Inc., to Petitions for Reconsideration of Second Report and Order at 3- 4 (Northpoint Consolidated Response) (filed Sept. 3, 2002). 220 Satellite Receivers Ltd. Opposition to Petition for Reconsideration at 3 (filed July 12, 2002) (SRL Opposition). 221 Id. 222 Id. 223 See Second R& O, 17 FCC Rcd at 9702- 04 ¶¶ 229- 36; see also Joint Opposition of DIRECTV, INC. and EchoStar Satellite Corporation at 20 (filed Sept. 3, 2002) (DBS Opposition); MDS America, Incorporated Opposition to Petition for Reconsideration of Pegasus Broadband Corporation at 5 (filed Sept. 3, 2002) (MDS America Opposition). 224 See Pegasus Petition at 7. 225 See Second R& O, 17 FCC Rcd at 9702 ¶ 230. 40 Federal Communications Commission FCC 03- 97 41 provides the parameters for the testing of technology proposed by “any pending application,” is limited to applications pending as of the enactment of the LOCAL TV Act. 226 As the Commission stated, Had Congress intended Section 1012( a) to apply only to applications on file with the Commission at the time of enactment, it would have used terms such as “pending” and “date of enactment,” which it did in Section 1012( b). Moreover, if the entities covered by Section 1012( a) were limited to applications pending at the time of enactment, then the inclusion in Section 1012( b) of the phrase “pending application” would be superfluous. 227 Pegasus’ proffered interpretation focuses solely on Section 1012( a) of the LOCAL TV Act, and ignores the rest of the statute. 85. We find that Pegasus’ argument is not persuasive. We agree with the DBS operators (EchoStar Satellite Corporation and DIRECTV, Inc.) and SRL that Pegasus has no basis in concluding that Congress explicitly ordered the Commission to limit terrestrial applications in this band to those already on file and validated by independent testing. 228 Further, we agree that Congress did not intend to override the Commission’s normal license assignment procedures or to effectively grant a particular applicant or set of applicants a “pioneer’s preference” for licenses granted outside the Commission’s usual license assignment process. 229 We believe that the Commission’s previous determination is supported by a reasonable interpretation of the statutory provision and is in the public interest. 2. Operational Limits 86. EIRP and EPFD limits. MDS America seeks reconsideration of the EIRP and EPFD operational limits on MVDDS set forth in Sections 101.105 and 101.113 of the rules adopted in the Second R& O. MDS America argues that we should adopt a two- tiered scheme that maintains the 14 dBm EIRP limit for urban areas but would allow a higher EIRP of 39 dBm in rural areas. 230 Similarly, MDS America argues that the regional EPFDs should also be increased in rural areas. 231 MDS America contends that the higher EIRP and EPFDs are appropriate in rural areas because they will simultaneously allow for larger MVDDS service areas while making it possible to increase DBS interference protection through control of the radiation beam (or vector) from the MVDDS transmitter. 232 In addition, MDS 226 See Second R& O, 17 FCC Rcd at 9702- 04 ¶¶ 229- 36; see also DBS Opposition at 13; MDS America Opposition at 5- 6. 227 Second R& O, 17 FCC Rcd at 9702- 03 ¶ 231 (footnotes omitted). 228 See DBS Opposition at 14; SRL Opposition at 3. We note that Congress rescinded our authority to issue “pioneer’s preference” awards in 1997, under a provision of the Balanced Budget Act of 1997. Pub. L. 105- 33, 111 Stat. 251 (1997); 47 U. S. C. § 309( j)( 13). 229 See DBS Opposition at 15- 16. 230 MDS America petition at i – ii, and generally at 2, 6 and 22. 231 The four EPFD values specified by MDS America for rural areas are -155.7, -157.7, -158.6 and -160 dBW/ m 2 /4kHz. Id. at 23 232 MDS America contends that the MVDDS transmitter could be placed at a relatively high altitude above the surrounding terrain and the antenna beam could be shaped and pointed so that the MVDDS signal does not illuminate the ground within a significant “exclusion zone” around each MVDDS transmitter. In theory, as a result, any nearby DBS receive dishes within the “exclusion zone” would not see the MVDDS signal because it is essentially directed to travel overhead and out of the propagation line of sight for nearby DBS receivers. MDS America contends that “Exclusion zones, therefore, are not areas of higher interference, but rather areas of NO interference to DBS customers, because they are areas with the weakest MVDDS signal.” Thus MDS asserts that (continued....) 41 Federal Communications Commission FCC 03- 97 42 America argues that this higher power limit will allow MVDDS operators to avoid potential multipath problems that can occur with transmitters located in urban areas by making it feasible to locate transmitters farther outside an urban area while still providing service within the urban area due to the larger coverage contours achieved. 233 Finally, MDS America also argues that these higher limits will permit service areas of sufficient size for economic viability, thereby making it more likely that MVDDS will be deployed in rural areas. Finally, MDS America argues that the EIRP limits adopted in the Second R& O have the effect of favoring MVDDS systems configured in a manner similar to the original Northpoint proposal. 87. We decline to modify the EIRP and EPFD limits imposed on MVDDS. Two key benefits of the adopted limits are that they are not susceptible to dispute because of their simplicity, and they effectively limit the potential for harmful interference to DBS when applied to all MVDDS transmission systems, no matter how configured. As the Commission found in the Second R& O and affirm herein, these limits are sufficiently conservative to ensure that any potential interference to DBS should be held below any level that can be considered harmful under our rules. As noted in the preceding paragraph, however, MDS America relies upon certain assumptions about the MVDDS transmitting antenna characteristics – particularly, the vector angle of the transmitted beam - to achieve the asserted benefits of their approach 234 In other words, the level of DBS protection claimed by MDS America will not result at the higher EIRP unless various antenna characteristics assumed by MDS America are met. In that light, we conclude that adopting rules that specify an EIRP higher than 14 dBm would inherently necessitate the adoption of additional constraints on MVDDS transmitting antenna characteristics that could unduly limit the flexibility and options of MVDDS providers to use alternative antenna configurations. By comparison, the adopted limits do not preclude the use of the MDS America approach to MVDDS transmission, although we recognize MDS America’s argument that those limits could make some approaches more or less attractive for various financial and technical reasons. However, on balance, we believe it is prudent to craft a conservative criterion that protects DBS in all instances and preserves the flexibility for each MVDDS provider to make its own business decision about what type of transmission system better suits its needs. Finally, we note that the relief sought by MDS America would require the formulation of some across- the- board definition of what constitutes a “rural” area for the purpose determining when the EIRP and EPFD exceptions would apply. We conclude that making such an exception would negate the benefit of the simplicity and general applicability of the adopted rules. Accordingly, the MDS America petition for higher EIRP and EPFD limits on MVDDS is denied. 88. On the other hand, we do not prejudge herein whether the MDS America rationale for higher EIRP and EPFD limits in rural areas might have some technical merit in certain very specific circumstances. Consequently, MVDDS providers may file petitions for waiver of the general MVDDS limits adopted in the Second R& O. 235 After we gain experience with MVDDS operations, we will entertain requests to modify the general EPFD and EIRP limits, if such experience provides sufficient justification for such action. 89. 24 megahertz bandwidth. MDS America requests that we clarify the bandwidth restriction specified in the MVDDS emission mask rule. 236 Specifically, MDS America argues that the footnote (... continued from previous page) higher EIRPs can be utilized without causing harmful interference to nearby DBS receive dishes because the radiated MVDDS signal is not directed toward their line of sight. MDS America petition at 14. 233 MDS America petition at i. 234 Id. at 12 – 22. See also footnote 330 supra. 235 In these situations, we encourage MVDDS providers to consult with and hopefully secure support from each potentially affected DBS provider. 236 Id. at 23. 42 Federal Communications Commission FCC 03- 97 43 added immediately after the definition of “B” in Section 101.111( a)( 2)( i) appears to restrict the channelization plan of MVDDS providers within their band. MDS America notes that while the Commission stated that the 500 megahertz MVDDS allocation could be divided into any size channels, it also adopted an emission mask equation with a maximum authorized bandwidth of 24 megahertz. That emission mask, MDS America argues, could be interpreted as a limit on in- band channelization. In that light, MDS America requests clarification of the apparent inconsistency. 90. We agree that some clarification of our rules is appropriate. The emission requirement should be applied only at the band edge to limit undesired MVDDS signals outside of the 12.2- 12. 7 GHz band. This out- of- band emission limit was not intended to limit channelization within the 12.2- 12.7 GHz band, but is necessary to set the authorized bandwidth value “B” to 24 megahertz to ensure the equation effectively protects operations in adjacent bands (i. e., if B was set to 500 megahertz, the energy permitted by Section 101.111( a)( 2)( i) into adjacent bands would have been much higher). We amend the footnote to add the proviso that the emission mask only applies at the 12.2 -12.7 GHz band edges and does not restrict MVDDS channelization bandwidths within the band. 91. MVDDS antenna pointing. EchoStar and DIRECTV argue that the Commission ignored the findings of the MITRE Report concerning orientation of MVDDS transmitters. 237 Specifically, they assert that our rules compound the potential for harmful interference to DBS by failing to specify any directional orientation for MVDDS transmitting antennas. 238 92. Decision. We disagree. Petitioners do correctly point out that Northpoint's proposal involves south- pointing transmitters based upon their contention that such an orientation would avoid interference with DBS in the same spectrum. 239 However, the MITRE Report stated that MVDDS antenna orientations, other than southward as envisioned by the original MVDDS applicants, could have beneficial effects. 240 In other words, the MITRE Report found that it was not essential that MVDDS transmitters point south. The Commission stated its agreement with MITRE in our decision in the Second R& O. 241 The Commission also noted that MITRE found that MVDDS antenna orientations other than south, including north, created no more interference, but that care must be taken not to place the antenna too close to the line of sight between a satellite and a DBS receiver. 242 In other words, different antenna orientations present varying interference protection geometries that should be considered to avoid locating an MVDDS transmitter too close to the line of sight between a satellite and a DBS receiver. Taking these matters into consideration, the Commission found that of all these variables “[ i] nterference protection is what is important …” 243 Therefore, the Commission concluded that itshould shift the focus from proposals that specify particular antenna orientations to the objective of protecting DBS while allowing flexibility for MVDDS technical innovation - particularly in regard to antenna configurations. 244 Since the EPFD accounts for antenna orientation, all parties are protected no matter what their relative directions are. Based upon these findings, and in light of the other interference protection criteria 237 Id. at 11- 12. [EchoStar, DIRECTV petition] The MITRE Report states that “pointing the MVDDS transmitting antennas away from the satellites, rather than toward them as generally envisioned, could have beneficial effects in many situations …” See also MITRE Report at 6- 2. 238 EchoStar, DIRECTV petition at 12. 239 Id. at 12. Citing Northpoint Petition for Rulemaking (filed March 6, 1998) at 4. 240 Id. at 12. Citing MITRE Report at xviii, 6- 2. 241 Second R& O at ¶ 202. 242 Second R& O at ¶ 202. Citing MITRE Report at 6- 2 to 6- 4. 243 Second R& O at ¶ 202. 244 Second R& O at ¶ 202. 43 Federal Communications Commission FCC 03- 97 45 1. MVDDS Limits. 94. Positions of the Parties. SkyBridge argues that the PFD limit imposed on MVDDS operations fails to provide any meaningful protection to later- in NGSO FSS systems 254 because, they assert, it is the percentage of affected NGSO FSS user terminals within an MVDDS service area that is the critical parameter for assessing the burden on NGSO FSS systems. To remedy this, SkyBridge urges the Commission to adopt rules that reflect its originally proposed sharing scheme that focuses upon multiple PFD and EPFD limits in prescribed percentages of MVDDS service area. 255 SkyBridge argues that the Commission failed to demonstrate that the SkyBridge proposal is overly complex or burdensome and failed to show any relationship between the adopted rules and the protection requirements of NGSO FSS systems. 256 Additionally, SkyBridge objects to the Commission’s conclusion that NGSO FSS systems can employ frequency diversity 257 and can prevent saturation when doing so via sufficient signal discrimination characteristics and/ or narrower receiver front ends. 258 SkyBridge argues that the cost of such modifications on system design together with other engineering constraints of supporting frequency diversity would effectively result in a bar on economically viable NGSO FSS operations in the 12.2- 12.7 GHz band, and relinquishment of the band to the unrestricted use of MVDDS operations. 259 This, they contend, would effectively relegate NGSO FSS to de facto secondary status because MVDDS is likely to deploy before NGSO FSS in most areas. 260 In that connection, SkyBridge contends that its sharing scheme would allow both NGSO FSS and MVDDS operators to co- exist, no matter which service deployed first in a given area. Finally, SkyBridge argues that the Commission adopted the -135 dBW/ m 2 /4kHz PFD limit at 3 km merely to accommodate the EIRP of 14 dBm recommended in the MITRE Report regarding DBS protection rather than for the purpose of protecting NGSO FSS. It asserts that the adopted limits only protect NGSO FSS receivers from saturation, but do not protect against unacceptable interference. 261 95. Arguing against the requests of SkyBridge, MDS America asserts that SkyBridge’s petition merely repeats arguments that were fully considered and rejected by the Commission in the Second R& O. It also argues that mere disagreement with Commission decisions does not support reconsideration and that the Commission’s decisions demonstrate a careful consideration of the record and a reasonable policy decision that should be accorded a substantial degree of deference. 262 Similarly, Northpoint argues that 254 SkyBridge petition at 4. 255 SkyBridge proposed a scheme involving multiple in- band PFD contours and EPFD defined zones and out- of- band emission limitations. The three in- band limits SkyBridge proposed were: 1) a PFD limit of -120 dBw/ m 2 /MHz (which equates to -144 dBW/ m 2 /4kHz) corresponding to an NGSO FSS frequency diversity zone that SkyBridge suggests should not be exceeded over ten percent of the MVDDS service area; 2) an EPFD limit of –135 dBW/ m 2 /4kHz corresponding to a NGSO FSS receiver saturation buffer zone that should not be exceeded over 0.2% of the MVDDS service area; and 3) an EPFD limit of –132 dBW/ m 2 /4kHz corresponding to a NGSO FSS receiver saturation threshold limit not to be exceeded into any operational NGSO FSS receiver. See SkyBridge comments at 33- 47. See, also, SkyBridge ex parte letter from Jeffrey H. Olson to Magalie Roman Salas, Secretary, FCC (filed Jul 10, 2000). 256 SkyBridge petition at 10. 257 NGSO FSS is allocated the entire 11. 7- 12.7 GHz band for downlink operation. Frequency diversity techniques would enable dynamic switching to the lower 11. 7- 12.2 GHz band for downlink service to avoid potential MVDDS interference in the 12. 2- 12. 7 GHz band. 258 SkyBridge petition at 12. 259 Id. at 13. 260 Id. at 13. 261 Id. at 8. 262 MDS America opposition at 3. 45 Federal Communications Commission FCC 03- 97 46 the Commission properly considered and rejected Sky Bridge’s proposed MVDDS protection scheme as being needlessly complex. 263 96. Northpoint states that SkyBridge never placed its receiver specifications in the record and, consequently, there is insufficient evidence of the claimed receiver characteristics relied upon by SkyBridge to support its approach. As to the limits that were adopted, Northpoint and MDS America argue that the PFD limit at 3 km is too restrictive and should be repealed. 264 Northpoint adds that the PFD limits were adopted without adequate support in the record and are unnecessarily restrictive on MVDDS given that NGSO FSS receivers will have unfettered access to the sub- adjacent 11.7- 12.2 GHz band. 265 MDS America argues that the potentially preclusive effect of the PFD limit on MVDDS operations could be considerable – especially in rural areas, yet may be of little benefit for NGSO FSS given that the limit applies regardless of whether an NGSO FSS receiver is ever deployed near the MVDDS transmitter. As an alternative, MDS America asks that the PFD limit be modified for rural areas to -109 dBW/ m 2 /4kHz at a distance greater than 3 km from the MVDDS transmitter to accommodate its request for higher MVDDS transmitter EIRP limits. 266 97. Decision. We decline to reconsider the MVDDS limits adopted in the Second R& O and find SkyBridge's assertion that the –135 dBW/ m 2 /4kHz PFD limit at 3 km fails to provide later- in NGSO FSS systems with meaningful protection to be without merit. While SkyBridge might disagree with the PFD limits that were adopted, mere disagreement in the absence of new information does not merit reconsideration in light of our balanced consideration of the interests of both NGSO FSS and MVDDS. The Commission found in the Second R& O that the PFD limit was a sensible compromise between NGSO FSS and MVDDS proposals that would provide reasonable protection to NGSO FSS systems without limiting the service area of each MVDDS transmitter. We find that SkyBridge presents no new information in its petition that was not previously considered in the Second R& O. Nevertheless, we note that in the Second R& O, the PFD limit was analyzed in terms of SkyBridge's multi- limit scheme and found to provide qualitatively similar protection to that sought by SkyBridge. 267 Concerning SkyBridge’s questioning of the relationship between the PFD limit and the 14 dBm EIRP limit, we find that it was reasonable for the Commission to analyze whether MVDDS operating at the EIRP limit originally conceived and ultimately adopted for DBS protection would similarly provide adequate protection for NGSO FSS. The Commission concluded that such MVDDS operation was both compatible with the PFD limit and consistent with a reasonable level of NGSO FSS protection. 98. Concerning the relative merits of SkyBridge's proposed scheme and why it was not adopted, the Commission concluded in the Second R& O that the SkyBridge scheme was technically unsound and 263 Northpoint consolidated response at 15- 17. 264 See generally, MDS America’s June 24, 2002 Petition for Reconsideration at 12 and the September 3, 2002 Consolidated Response of Northpoint Technology, LTD., and Broadwave USA, Inc., to Petitions for Reconsideration of the Second Report and Order at 8, 13, and 15- 17. 265 Northpoint consolidated response at 13. 266 MDS America petition at 26. 267 Based upon worst case assumptions without frequency polarization constraints on MVDDS, the adopted technical limits should allow NGSO FSS deployment across 80% of the MVDDS service area in the entire 11. 7- 12. 7 GHz band and up to 97. 5% of the MVDDS service area if the NGSO FSS terminal uses frequency diversity to operate in the adjacent 11.7- 12.2 GHz band. See Second R& O at ¶116. SkyBridge has argued that it was desirable to avoid use of frequency diversity “over a large proportion” of the MVDDS service area, and that the NGSO FSS “saturation zone” should be “small.” SkyBridge comments to FNRPM at 33- 34. As shown, under worst case assumptions the saturation zone corresponding to our adopted rules is approximately 2.5% of the MVDDS service area. Although not as small as the 0.2% of the MVDDS service area that SkyBridge proposed, it is sufficiently small as to not substantially hinder NGSO FSS deployment. 46 Federal Communications Commission FCC 03- 97 47 needlessly complex. First, as a practical matter, we continue to find that basing PFD limits on a percentage of MVDDS service area would be inordinately burdensome and could be susceptible to litigation dispute and manipulations among competing licensees with respect to parameters such as MVDDS service area size. 268 In this regard, SkyBridge has provided little plausible guidance about how their approach could be effectively implemented and enforced. Second, we are not persuaded by SkyBridge's assumptions that imply a direct correlation between the percentage of MVDDS service area and a numerical percentage of NGSO FSS terminals that either may experience interference or be required to make use of frequency diversity. SkyBridge appears to base its arguments either on an assumption of uniform NGSO FSS deployment across an MVDDS service area or on the assumption that both NGSO FSS and MVDDS will be uniformly distributed across the Nation. We believe that neither assumption is realistic. Finally, as SkyBridge itself implicitly confirmed, the percentage limits for the various PFDs sought are not physically realizable over a wide range of MVDDS operating parameters unless MVDDS transmissions are restricted to cross- polarized transmission modes with respect to NGSO FSS. 269 The Commission rejected polarization constraints on MVDDS as being too burdensome and likely to hinder evolution of that service. 270 Moreover, the Commission determined that defining NGSO FSS protection in terms of MVDDS service area percentages was illusory as a technical sharing rule because virtually any reasonable combination of EIRP and tower height limits would result in a nearly constant percentage of affected MVDDS service area. 271 In other words, no matter how large or small the MVDDS EIRP or antenna height, the result in terms of affected service area percentages would be nearly unchanged. Furthermore, as demonstrated in the Second R& O, 272 the actual physical extent of all three of the complex protection contours described by SkyBridge could be just as completely characterized, and more effectively regulated, by specifying a single, easily controllable, PFD limit on an MVDDS transmitter. 99. In essence, we find that SkyBridge's complaint regarding the adopted PFD limit reduces to little more than dissatisfaction that it will not have unfettered use of the 12 GHz band in locations where it is deployed after MVDDS and that this renders NGSO FSS secondary to MVDDS. We find that the fact that NGSO FSS interests might not be ready to deploy before MVDDS due to marketplace, financial or other concerns is insufficient basis for reconsideration of our balanced approach. SkyBridge cites no authority to support such preferential treatment under such circumstances. We similarly reject SkyBridge's complaint that additional expense for equipment design might be required to take full advantage of frequency diversity under these circumstances. As the Commission stated in the Second R& O, “[ i] n these circumstances, each NGSO FSS operator can make its own business decision whether to employ receivers with sufficient signal discrimination characteristics and/ or narrower bandwidth front- 268 Second R& O at ¶ 118. 269 Id. at ¶ 115, footnote 256, citing SkyBridge ex parte, Letter from Jeffrey H. Olson, Paul, Weiss, Rifkind, et al. to Magalie Roman Salas, Secretary, FCC (filed Nov. 15, 2001). In particular, SkyBridge assumed that MVDDS would use a single polarization mode of transmission dissimilar to that used for NGSO FSS. We find this assumption unrealistic because, among other reasons, there are no guarantees regarding which polarization different NGSO FSS licensees may use to share the band and it does not consider polarization effects on sharing with DBS. Moreover, for example, such constraints on MVDDS transmissions could seriously impede a provider’s flexibility to utilize lower power spreading modulation techniques that may use both polarizations to achieve greater capacity needs. 270 Second R& O at ¶115. In addition, For example, Northpoint argues that to meet SkyBridge’s -120 dB W/ m 2 /MHz) limit over 90% of its service area, it would have to reduce its overall maximum PFD on the ground to the -120 dB W/ m 2 /MHz level with a corresponding EIRP of -33.5 dBW, which would reduce its predicted service area radius to 1.5 miles, greatly increasing the number of transmit sites needed. Northpoint January 14, 2002 ex parte at 5. 271 Second R& O at ¶ 117. 272 Id. at ¶¶ 115- 117. 47 Federal Communications Commission FCC 03- 97 48 ends to enable operation in close proximity to pre- existing MVDDS transmitting antennas.” 273 Furthermore, we find that it is unrealistic for later- in NGSO FSS systems to expect total technical flexibility and to also have unfettered access to the 12.2 GHz band without consideration of existing co-primary MVDDS transmitters. As stated in the Second R& O, it was our intention to afford more and easier use of spectrum to the first- in service in any particular area. 274 We find that adopting the level of NGSO FSS protection desired by SkyBridge would undermine that goal and would place severe restrictions on MVDDS operations that could preclude viable MVDDS operations. As Northpoint aptly observes, in the few instances where interference might pose a problem to NGSO FSS/ MVDDS sharing of the 12 GHz band, the NGSO FSS systems can operate in adjacent spectrum - just as they might be required to do whenever an NGSO FSS receiving antenna might be pointed at another NGSO FSS system's transmitter. 275 In short, we conclude that the adopted limits strike a balance between the interests of enabling the widespread deployment of these two new services while affording a reasonable degree of protection to whichever service is later to enter a particular market. We find that the adopted limits are consistent with the co- primary status of MVDDS and NGSO FSS in the 12.2- 12.7 GHz band and reject SkyBridge’s argument to the contrary. 100. Therefore, we affirm the conclusion reached in the Second R& O that the approach which limits the MVDDS PFD at a specified distance affords NGSO FSS adequate interference protection from MVDDS. Moreover, it is relatively simple to determine and easy to apply because it will not be susceptible to arbitrary assumptions by licensees. 276 Finally, the Commission found that the adopted approach fixes the potential worst- case NGSO FSS interference regardless of MVDDS transmitter or antenna design. 277 Consequently, the Commission concluded that both MVDDS and NGSO FSS licensees would benefit from the predictability of being able to anticipate and plan around the potential sharing issues that might arise. 278 We recognize that the adopted PFD limit is not as favorable for NGSO FSS as SkyBridge desired, however we affirm our conclusion that the adopted PFD limit at 3 km for MVDDS represents a reasonable compromise that will allow NGSO FSS access to a large percentage of any area where a MVDDS transmitter is deployed. At the same time, this limit should allow each MVDDS transmitter to viably serve a reasonably adequate geographic area without resorting to an excessive number of transmitters. In light of the discussion and findings in the preceding paragraphs, we find no merit in SkyBridge’s contention that its percentage based approach failed to receive sufficient consideration or that it is superior to the method adopted in the Second R& O. 101. With respect to MDS America’s petition to relax or repeal the MVDDS PFD limit, we find that the preceding discussion about why the PFD limit of –135 dBW/ m 2 /4kHz at 3 km should not be tightened as requested by NGSO FSS petitioners simultaneously militates against relaxing the PFD limit as requested. 279 In short, we conclude that relaxing the PFD limit could have a sufficiently deleterious effect on the ability of future NGSO FSS systems to provide service within significant portions of an MVDDS transmitter’s service area. Therefore, for the same reasons discussed above, we affirm the conclusion that the adopted PFD limit ultimately reflects our best judgment of what standards would, on 273 Id. at ¶ 109. 274 Id. at ¶ 111. 275 Northpoint consolidate response at 18. See also, Second R& O at ¶ 108. 276 Second R& O at ¶ 113. 277 Id. The Commission also found that the PFD limit is technology neutral for MVDDS because it allows for the use of any antenna type, tower height and EIRP combination (up to the maximum 14 dBm) so long as the PFD limit is not exceeded at the specified distance. 278 Id. at ¶ 113. 279 See para. 86, supra for a discussion of MDS America’s request for higher MVDDS EIRP limits. 48 Federal Communications Commission FCC 03- 97 49 balance, be both workable and beneficial for both services. Moreover, given that neither MVDDS nor NGSO FSS are currently operational, we find that it was prudent, based upon the best information of record, to craft the technical rules in a conservative manner that strikes what we judge to be a reasonable compromise between the competing interests of each service. Therefore, we deny MDS America’s request to relax the PFD requirements in rural areas. 102. Finally, we note that Northpoint’s consolidated response included a request that we repeal the rule requiring later installed MVDDS transmitters to maintain a 10 km separation from established NGSO FSS receive sites. Because this request was first raised in Northpoint’s response to SkyBridge’s petition for reconsideration, it cannot be considered as a timely filed request for reconsideration. Therefore, we dismiss this request as untimely. Nevertheless, for the purpose of clarity, we note that the adopted rules are designed to provide the first- deployed service with interference protection from the later- deployed service. In this instance, if NGSO FSS is first deployed, it will likely make use of the full 12.2- 12.7 GHz band available to it. The nearby presence of later deployed MVDDS transmitters in an area already served by NGSO FSS could require both existing and future NGSO FSS receivers within that area to tune out of the 12.2- 12. 7 GHz band then being used and into the lower 11.7- 12.2 sub- band available to NGSO FSS in order to avoid interference from MVDDS. We also note that Section 101.129( b) of the adopted rules allow for NGSO FSS and MVDDS licensees to agree to separations less than 10 km without limit. Moreover, since MVDDS is co- primary with NGSO FSS, MVDDS will be able to deploy in any location wherever they are the first entrant. 2. NGSO FSS Limits. 103. Positions of the Parties. SkyBridge argues that the low angle PFD limits of Section 25.208( k) imposed on NGSO FSS downlink transmissions in the 12 GHz band to protect MVDDS receivers are unnecessarily burdensome because they based on worst case assumptions and would apply at all times (i. e. “hard limit”). 280 SkyBridge explains that it previously accepted Northpoint’s proposed PFD limits, 281 which are 10 dB tighter than those specified in Article 21 of the International Radio Regulations for protecting fixed service receivers in the 12.2- 12.7 GHz band, in an effort to meet a mutual sharing agreement, provided that the method adopted for implementing the tighter limits would not impose unnecessary constraints on NGSO FSS systems. While acknowledging that its system would meet the more restrictive limits in most cases, SkyBridge argues that adopting the PFD limit as a “hard limit” requires that the NGSO FSS system be designed to meet the limit under worst- case conditions. SkyBridge contends that such a constraint means that NGSO FSS systems must operate at power levels lower than the PFD limit needed to protect the majority of MVDDS receivers. 282 SkyBridge states that it would not oppose rules that would require an NGSO FSS licensee to provide the Commission with an assurance of an NGSO FSS system’s ability to comply with limits prior to the start of service. However, SkyBridge urges that an NGSO FSS licensee should only have to demonstrate compliance with adopted limits on an “operational” basis; that is, upon a credible claim of harmful interference into identified operational MVDDS receivers. 283 SkyBridge recommends that instead of requiring a demonstration of compliance with the tighter limits prior to commencement of operation, the Commission should require only the information it needs to insure that an NGSO FSS operator has taken into account the need to 280 SkyBridge petition at 14. SkyBridge asserts that the worst case for sharing between MVDDS and NGSO FSS would occur when the MVDDS receive site is at the edge of the coverage area (i. e., receiving a weak signal), and the NGOS FSS satellite is operating at maximum power and the NGSO satellite transmit antenna is aligned with the MVDDS receive antenna. SkyBridge contends that this scenario rarely occur. 281 The Commission adopted the PFD limits proposed by Northpoint and agreed to by SkyBridge. 282 SkyBridge Petition at 15- 16. 283 Id. at 19. 49 Federal Communications Commission FCC 03- 97 50 comply with the limits and has equipped its system with the means to do so. 284 Finally, SkyBridge argues that the Commission provides no guidance on how a licensee would demonstrate compliance with the PFD limit. In the absence of an agreed to methodology for demonstrating compliance, SkyBridge asserts that any showing would be susceptible to considerable dispute. 104. Northpoint opposes SkyBridge’s request that PFD limits be applied as “operational limits” rather than “hard limits” because doing so would give free reign to NGSO FSS to cause harmful interference to MVDDS receivers until the MVDDS licensee can prove that NGSO FSS is the source of the problem. 285 Northpoint supports the Commission’s finding that making PFD limits dependent upon complaints or demonstration of violation would not provide adequate or uniform protection and states that SkyBridge provides no sound reason to reverse the decision. 105. SkyBridge replies that designating limits as “operational” is a recognized tool in instances where the likelihood of a system exceeding the limits is low and demonstrating compliance introduces artificial constraints. 286 SkyBridge clarifies that designating limits as “operational” will not require MVDDS entities to “prove” that an NGSO FSS system is exceeding the limits. The NGSO FSS bears the burden to demonstrate compliance with respect to a particular MVDDS receiver in response to a credible claim of interference. SkyBridge argues that this is how other PFD limits in Section 25.208 of the Commission’s rules are enforced in that FSS operators are not required to demonstrate in advance that the limits will not be exceeded. 287 106. Decision. Upon review of the Second R& O, we find that clarification of our low angle PFD compliance requirement of Section 25.208( k) is appropriate. We agree with SkyBridge that the adopted requirement does not necessarily apply in all cases. We believe that it would be better to treat the adopted low angle PFD in a manner consistent with the rules for NGSO FSS and BSS sharing where validation (i. e., “hard limit”) and operational (i. e., can be exceeded so long as they are not exceeded into an operational receiver) EPFD limits were adopted. 288 The PFD hard limit that NGSO FSS can never exceed is specified in Article 21 of the Radio Regulations. 289 The limit we adopted in the Second R& O, is an operational limit which means that it does not need to be met in all cases so long as it is not be exceeded into an operational MVDDS receiver. Thus, the NGSO FSS system needs to be designed so that it can adjust its power to meet the operational limit to protect MVDDS in the worst case circumstance. 107. We disagree, however, with SkyBridge’s argument that demonstrating compliance with operational limits is necessary only upon a credible claim of harmful interference into identified operational MVDDS receivers. As the Commission recently stated, in rejecting a similar argument from SkyBridge regarding NGSO FSS/ BSS sharing, demonstration of compliance prior to operation provides assurance to the Commission and other operators that the system will be built to operate in accordance with the PFD limits. 290 Therefore, we will require NGSO FSS licensees to demonstrate prior to operation, as SkyBridge suggests, that their system is capable of meeting the adopted limits. Licensees should 284 Id. at 20. 285 Northpoint consolidated response at 19. 286 SkyBridge reply at 4. 287 See 47 C. F. R. § 25. 208. 288 See Third Memorandum Opinion and Order, ET Docket No. 98- 206, FCC 03- 25 (rel. Feb. 6, 2003) at ¶¶ 19- 22 (Third MO& O). 289 In Region 2, the limit for the 12. 2- 12. 7 GHz band is -148 dBW/ m 2 /4 kHz at angles between 0 and 5 degrees above the horizon. See ITU Radio Regulations, Article 21. 290 See Third MO& O at ¶ 26. 50 Federal Communications Commission FCC 03- 97 51 provide any information they deem necessary to meet this showing. As the Commission recently stated regarding NGSO FSS/ BSS sharing, the demonstration can rely on anticipated or actual operational parameters. 291 As SkyBridge further suggests, if an MVDDS station experiences interference, we will require NGSO FSS operators to expeditiously either demonstrate, using its actual operating parameters, that it is not violating the limits into that receiver, or take steps to reduce its PFD into that receiver. If it cannot do so, the alternative is that its system must remain within the operational limit at all times. 292 108. The PFD limits were codified in Section 25.208 of our rules, however, the Commission neglected to codify the demonstration requirement in Section 25.146 as discussed in the text of the Second Report and Order. 293 Therefore, we are modifying Sections 25.146 and 25. 208 to clarify the points discussed above. 3. MVDDS and NGSO FSS Information Sharing 109. Positions of the Parties. In its petition, SkyBridge states that Section 25.139 of the rules requiring information exchange is not sufficiently clear regarding the amount and timing of the information that should be given to an MVDDS operator. 294 Because subscriber information could be proprietary, SkyBridge requests that the Commission clarify that the information not be construed as public information and that NGSO FSS operators may require MVDDS operators to execute an appropriate non- disclosure agreement prior to releasing any data. Further, it asserts that NGSO FSS operators should not be required to disclose more information than is required to meet Section 25. 139( b) (i. e., sufficient information for the MVDDS licensee to determine whether a new transmitter will meet the separation requirement). Finally, SkyBridge requests that MVDDS operators be prohibited from using the information for any purposes other than the technical coordination required by the Commission. 110. Northpoint does not oppose SkyBridge’s request to clarify the information exchange needed to meet the separation requirement. 295 Northpoint contends that a bare minimum of information needed would be the latitude, longitude (within 100 feet) and frequency of NGSO FSS receivers. 296 Provided that such information is readily available, Northpoint does not object to nondisclosure agreements and limiting the use of the information only to compliance with the separation requirements. 111. Decision. We find that the concerns of SkyBridge regarding our required information exchange for coordination between MVDDS and NGSO FSS operations have merit. 297 Because certain NGSO FSS subscriber information could be considered proprietary information (e. g., for competitive reasons), we clarify that the information exchange requirement should be construed narrowly and that only information necessary to achieve the required separation under Section 25.139( b) (i. e., “sufficient information from the database to enable the MVDDS licensee to determine whether the proposed MVDDS transmitting site meets the minimum spacing requirement”) needs to be provided. The information provided should include, as a minimum, the NGSO FSS latitude, longitude (within 30.5 m 291 Id. 292 Id. at ¶ 27 293 Second R& O at ¶ 121. 294 SkyBridge Petition at 20. 295 Northpoint Response at 20. 296 Id. 297 SkyBridge Petition at 20. Specifically, our rules required that the NGSO FSS licensee maintain a database of its deployed receivers that can be readily shared with MVDDS licensees for the purpose of determining compliance with the MVDDS transmitter spacing requirements. 51 Federal Communications Commission FCC 03- 97 52 (100 ft)) and frequency of operation. 298 We also find that the MVDDS operators shall be prohibited from using this information for any purposes other than for the technical coordination required by our Rules. Further, the NGSO FSS database information should be made readily accessible to the designers of the MVDDS system so that restrictions can be considered in the design of the system. Therefore, we are modifying Section 25.139( a). We believe that this action is adequate to address SkyBridge’s concerns. As far as parties executing non- disclosure agreements, we observe that that parties are free to use such agreements to facilitate the coordination process. V. PROCEDURAL MATTERS A. Final Regulatory Flexibility Certification 112. The Final Regulatory Flexibility Certification is contained in Appendix C. B. Paperwork Reduction Analysis 113. The Fourth Memorandum Opinion and Order contains new or modified information collection( s) subject to the Paperwork Reduction Act of 1995 (PRA) Public Law 104- 13. The information will be submitted to the Office of Management and Budget (OMB) for review under Section 3507( d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collections contained in this proceeding. C. Further Information 114. For further information concerning this Fourth Memorandum Opinion and Order, contact the Office of Engineering and Technology, Gary Thayer, (202) 418- 2290, TTY (202) 418- 2989, email gthayer@ fcc. gov, or Jennifer Burton, (202) 418- 7581, TTY (202) 418- 2989, email jburton@ fcc. gov. VI. ORDERING CLAUSES 115. Accordingly, IT IS ORDERED that pursuant to Sections 4( i), 302, 303( e) 303( f), 303( g), 303( r) and 405 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 302, 303( e), 303( f), 303( g) and 405, the petitions for reconsideration filed by Pegasus Broadband Corporation, MDS America, Inc., EchoStar Satellite Corporation and DIRECTV, Inc., SkyBridge L. L. C., SES Americom, Inc., and Satellite Broadcasting and Communications Association ARE DENIED. 116. IT IS FURTHER ODERED that Parts 25 and 101 of the Commission’s Rules ARE AMENDED as specified in Appendix D. Parts 25 and 101 contain information collection requirements which have not been approved by the Office of Management and Budget (“ OMB”). The Commission will publish a document in the Federal Register announcing the effective date of these rule parts.. This action is taken 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). 117. IT IS FURTHER ORDERED that the Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Fourth Memorandum Opinion and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration. 298 Northpoint Response at 20. 52 Federal Communications Commission FCC 03- 97 53 118. IT IS FURTHER ORDERED that the proceeding in ET Docket No. 98- 206 IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 53 Federal Communications Commission FCC 03- 97 54 APPENDIX A: Petitions for Reconsideration, Oppositions and Replies Petitions for Reconsideration (Filed June 24, 2002) Pegasus Broadband Corporation (Pegasus) MDS America, Inc. (MDS America) (Filed July 26, 2002) EchoStar Satellite Corporation and DIRECTV, Inc. - joint petition (EchoStar and DIRECTV) SkyBridge L. L. C. (SkyBridge) SES Americom, Inc. (SES Americom) Satellite Broadcasting and Communications Association (SBCA) Oppositions to Petitions for Reconsideration (Filed July 12, 2002) Satellite Receivers, Ltd. (Satellite Receivers) (Filed September 3, 2002) EchoStar Satellite Corporation and DIRECTV, Inc. - joint opposition (EchoStar and DIRECTV) MDS America, Inc. (MDS America) (MDS America filed four separate oppositions on this date, one each as to the reconsideration petitions filed by: 1) EchoStar, DIRECTV and SBCA 2) SkyBridge; 3) Pegasus and 4) SES Americom) Replies and Comments to Petitions to for Reconsideration (Filed September 3, 2002) Northpoint Technology, Ltd., and Broadwave USA, Inc. - joint response (Northpoint and Broadwave) Digital Broadband Applications Corp. (DBAC) (Filed September 13, 2002) MDS America, Inc. (MDS America) (MDS America filed three separate replies on this date, one each as to the oppositions/ comments filed by: 1) EchoStar and DIRECTV; 2) Northpoint; and 3) Digital Broadband Applications Corp.) (Filed September 18, 2002) EchoStar Satellite Corporation and DIRECTV, Inc. - joint reply (EchoStar and DIRECTV) SkyBridge L. L. C. (SkyBridge) SES Americom, Inc. (SES Americom) Satellite Broadcasting and Communications Association (SBCA) 54 Federal Communications Commission FCC 03- 97 55 APPENDIX B: Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Parts 25 and 101 as follows: PART 25 - SATELLITE COMMUNICATIONS 1. The authority citation for Part 25 continues to read as follows: AUTHORITY: 47 U. S. C. 701- 744. Interprets or applies Sections 4, 301, 302, 303 307, 309 and 332 of the Communications Act, as amended. 47 U. S. C. Sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise noted. 2. Section 25. 139 is amended by revising paragraph (a) to read as follows. § 25.139 NGSO FSS coordination and information sharing between MVDDS licensees in the 12.2 GHz to 12.7 GHz band. (a) NGSO FSS licensees shall maintain a subscriber database in a format that can be readily shared with MVDDS licensees for the purpose of determining compliance with the MVDDS transmitting antenna spacing requirement relating to qualifying existing NGSO FSS subscriber receivers set forth in §101.129 of this chapter. This information shall not be used for purposes other than set forth in §101.129 of this chapter. Only sufficient information to determine compliance with §101.129 of this chapter is required. * * * * * 3. Section 25. 146 is amended by adding a new paragraph (g) and redesignating paragraphs (g) through (m) as paragraphs (h) through (n) to read as follows. § 25.146 Licensing and operating authorization provisions for the non- geostationary satellite orbit fixed- satellite service (NGSO FSS) in the bands 10.7 GHz to 4.5 GHz. * * * * * (g) Operational power flux density, space- to- Earth direction, limits. Ninety days prior to the initiation of service to the public, the NGSO FSS system licensee shall submit a technical showing for the NGSO FSS system in the band 12.2- 12.7 GHz. The technical information shall demonstrate that the NGSO FSS system is capable of meeting the limits as specified in §25.205( o). Licensees may not provide service to the public if they fail to demonstrate that they are capable of complying with the PFD limits. * * * * * 4. Section 25. 208 is amended by amended by revising the first sentence of paragraph (o) to read as follows: § 25.208 Power flux density limits. 55 Federal Communications Commission FCC 03- 97 56 * * * * * (o) In the band 12.2- 12.7 GHz, for NGSO FSS space stations, the specified low- angle power flux- density at the Earth’s surface produced by emissions from a space station shall not be exceeded into an operational MVDDS receiver: * * * * * * * * PART 101 - FIXED MICROWAVE SERVICES 5. The authority citation for Part 101 continues to read as follows: AUTHORITY: 47 U. S. C. 154, 303. 6. Section 101.111 is amended by revising the footnote immediately after the definition of “B” in paragraph (a)( 2)( i) to read as follows: § 101.111 Emission limitations. * * * * * (a) * * * (2) * * * (i) * * * MVDDS operations in the 12.2- 12.7 GHz bands shall use 24 megahertz for the value of B in the emission mask equation set forth in this section. The emission mask limitation shall only apply at the 12.2-- 12.7 GHz band edges and does not restrict MVDDS channelization bandwidth within the band. 8. Section 101. 1440 is amended by revising paragraph (d) (2) and (e) to read as follows. § 101.1440 MVDDS protection of DBS. * * * * * (d) * * * (2) No later than forty- five days after receipt of the MVDDS system information in (d)( 1), the DBS licensee( s) shall provide the MVDDS licensee with a list of only those new DBS customer locations that have been installed in the 30- day period following the MVDDS notification and that the DBS licensee believes may receive harmful interference or where the prescribed EPFD limits may be exceeded. In addition, the DBS licensee( s) could indicate agreement with the MVDDS licensee’s technical assessment, or identify DBS customer locations that the MVDDS licensee failed to consider or DBS customer locations where they believe the MVDDS licensee erred in its analysis and could exceed the prescribed EPFD limit. * * * * * (e) Beginning thirty days after the DBS licensees are notified of a potential MVDDS site under (d)( 1), the DBS licensees are responsible for providing information they deem necessary for those entities who 56 Federal Communications Commission FCC 03- 97 57 install all future DBS receive antennas on its system to take into account the presence of MVDDS operations so that these DBS receive antennas can be located in such a way as to avoid the MVDDS signal. These later installed DBS receive antennas shall have no further rights of complaint against the notified MVDDS transmitting antenna( s). ***** 57 Federal Communications Commission FCC 03- 97 58 APPENDIX C –Final Regulatory Flexibility Certification The Regulatory Flexibility Act of 1980, as amended (RFA), 299 requires that a regulatory flexibility analysis be prepared for notice- and- comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 300 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 301 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 302 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). 303 Under the amended rules adopted in the Fourth Memorandum Opinion and Order, as discussed above, DBS licensees are required to provide the MVDDS licensee with a list of only those new DBS customer locations that have been installed in the 30- day period following the MVDDS notification and that the DBS licensee believes may receive harmful interference or where the prescribed equivalent power flux density (EPFD) limits may be exceeded. This requirement is less burdensome than the rule adopted in the Second Report and Order 304 that required disclosure of all DBS customer locations under similar circumstances. Furthermore, under the amended rules, DBS licensees are required to provide merely the information deemed necessary by DBS licensees to enable others to take into account the presence of MVDDS transmitters. This requirement is less burdensome than the rule adopted in the Second Report and Order that imposed direct responsibility on DBS licensees for proper siting of future DBS receivers to take into account the presence of MVDDS. Licensees of NGSO FSS systems are required to submit, ninety days prior to the initiation of service to the public, a technical showing that demonstrates that they are capable of meeting low- angle radiation limits specified in §25. 205( o) of the Commission's rules for the 12.2- 12.7 GHz band. Finally, licensees of NGSO FSS systems are required under the amended rules to ensure that the PFD limit is not exceeded into an operational MVDDS receiver. Taken together, these requirements are less burdensome than those adopted in the Second Report and Order because they merely require a showing that the NGSO FSS system is capable of meeting (instead of demonstrating the system has factually met) the specified technical limits, and because the PFD limit need only be met into operational, rather than all, MVDDS receivers. These changes are deregulatory because they lessen compliance requirements. Therefore, we certify that the requirements of the Fourth Memorandum Opinion and Order will not have a significant economic impact on a substantial number of small entities. 299 The RFA, see 5 U. S. C. § 601 – 612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104- 121, Title II, 110 Stat. 857 (1996). 300 5 U. S. C. § 605( b). 301 5 U. S. C. § 601( 6). 302 5 U. S. C. § 601( 3) (incorporating by reference the definition of “small- business concern” in the Small Business Act, 15 U. S. C. § 632). 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.” 303 15 U. S. C. § 632. 304 Second R& O, 17 FCC Rcd 9614 (2002). 58 Federal Communications Commission FCC 03- 97 59 The Commission will send a copy of the Fourth Memorandum Opinion and Order, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. 305 In addition, the Fourth Memorandum Opinion and Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register. 306 305 See 5 U. S. C. § 801( a)( 1)( A). 306 See 5 U. S. C. § 605( b). 59 Federal Communications Commission FCC 03- 97 60 APPENDIX D – Summary of Numerical Results Tables 1- 5 compare the baseline availability and unavailability (outage) due to rain only with calculated availability and outage due to rain plus MVDDS. These values are shown as a percentage over an average one- year period. For the rain plus MVDDS, we calculate the availability and outage percentages using the adopted regional EPFD values and for comparison purposes using an assumed 10% increase in minutes of unavailability over the baseline. The tables also compare the differences between the availability and unavailability percentages calculated using the regional EPFD values and the baseline. The same differences are also compared for the values calculated using the regional EPFD values and the assumed 10% increase in outage. The tables show that for the CONUS satellites the increase in outage as a percentage over an average year is less than one- tenth of one percent in all cases (except for Honolulu). Similar results are shown for the “wing” satellites. Table 6 compares the unavailability between the old satellite at 110 o West Longitude (the one used to develop the regional EPFD values) and the new spot beam satellite currently operating from that location. 307 In all cases, the results show that the potential outages that a DBS customer may experience are less for the new satellite as compared to the old satellite. 307 This new satellite was launched in August 2002. For technical detail of the new satellite see Application of EchoStar Satellite Corporation for Authority to Launch and Operate EchoStar VIII, File No. SAT- LOA- 20020329-00042; Application of EchoStar Satellite Corporation for Minor Modification of DBS Authorization, Launch and Operating Authority EchoStar VIII, SAT- MOD- 20020329- 00041; and the Revised Technical Appendix, SAT-AMD- 20020430- 00086. 60 Federal Communications Commission FCC 03- 97 61 Table 1: Satellite Located at 101 o West Longitude – Comparison of Availability and Unavailability (Outage) Attributable to MVDDS for various criteria (all values are expressed as a percentage over a year) Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Miami 99.673 0.327 99.644 0.356 99.640 0.360 0.029 (0.004) 8.876 Orlando 99.718 0.282 99.691 0.309 99.690 0.310 0.028 0.000 9.835 Tampa 99.729 0.271 99.702 0.298 99.701 0.299 0.027 (0.001) 9.811 Atlanta 99.835 0.165 99.819 0.181 99.819 0.181 0.016 0.000 9.931 Phoenix 99.874 0.126 99.859 0.141 99.862 0.138 0.016 0.003 12.351 Houston 99.802 0.198 99.788 0.212 99.782 0.218 0.014 (0.006) 7.023 Seattle 99.859 0.141 99.845 0.155 99.845 0.155 0.014 0.000 9.838 Sacramento 99.854 0.146 99.841 0.159 99.839 0.161 0.014 (0.001) 9.310 San Francisco 99.876 0.124 99.863 0.137 99.863 0.137 0.013 0.001 10.476 Dallas 99.844 0.156 99.833 0.167 99.828 0.172 0.011 (0.004) 7.253 Nashville 99.895 0.105 99.884 0.116 99.884 0.116 0.011 0.000 10.293 Portland 99.891 0.109 99.881 0.119 99.880 0.120 0.011 0.000 9.911 St. Louis 99.908 0.092 99.901 0.099 99.899 0.101 0.007 (0.002) 7.739 Cincinnati 99.911 0.089 99.904 0.096 99.902 0.098 0.007 (0.002) 7.823 Kansas City 99.919 0.081 99.913 0.087 99.911 0.089 0.006 (0.002) 7.786 Cleveland 99.930 0.070 99.923 0.077 99.923 0.077 0.006 (0.001) 8.759 Chicago 99.938 0.062 99.933 0.067 99.932 0.068 0.005 (0.001) 8.106 Milwaukee 99.941 0.059 99.936 0.064 99.935 0.065 0.005 (0.001) 8.159 Detroit 99.942 0.058 99.938 0.062 99.937 0.063 0.005 (0.001) 8.231 Minneapolis 99.942 0.058 99.938 0.062 99.937 0.063 0.005 (0.001) 8.210 Denver 99.972 0.028 99.967 0.033 99.969 0.031 0.004 0.002 15.478 Greenville 99.926 0.074 99.922 0.078 99.919 0.081 0.004 (0.003) 5.444 Philadelphia 99.958 0.042 99.955 0.045 99.954 0.046 0.003 (0.001) 7.724 Charlotte 99.945 0.055 99.942 0.058 99.940 0.060 0.003 (0.002) 5.544 61 Federal Communications Commission FCC 03- 97 62 Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Washington DC 99.958 0.042 99.956 0.044 99.954 0.046 0.002 (0.002) 5.762 New York 99.962 0.038 99.960 0.040 99.958 0.042 0.002 (0.002) 5.897 Boston 99.969 0.031 99.967 0.033 99.966 0.034 0.002 (0.001) 6.597 Indianapolis 99.911 0.089 99.909 0.091 99.902 0.098 0.002 (0.007) 2.249 Pittsburgh 99.968 0.032 99.966 0.034 99.965 0.035 0.002 (0.001) 5.865 San Diego 99.975 0.025 99.973 0.027 99.972 0.028 0.002 (0.001) 6.364 Columbus 99.961 0.039 99.960 0.040 99.957 0.043 0.001 (0.002) 3.791 Los Angeles 99.984 0.016 99.983 0.017 99.983 0.017 0.001 (0.001) 6.691 Baton Rouge 99.769 0.231 99.747 0.253 99.746 0.254 0.022 (0.001) 9.473 New Orleans 99.759 0.241 99.736 0.264 99.735 0.265 0.023 (0.001) 9.385 Shreveport 99.819 0.181 99.800 0.200 99.801 0.199 0.019 0.001 10.340 Billings 99.978 0.022 99.975 0.025 99.975 0.025 0.003 0.001 12.297 Fargo 99.906 0.094 99.896 0.104 99.896 0.104 0.009 0.000 9.891 Salt Lake City 99.988 0.012 99.986 0.014 99.986 0.014 0.002 0.001 15.420 Omaha 99.931 0.069 99.926 0.074 99.925 0.075 0.005 (0.001) 7.966 Oklahoma City 99.914 0.086 99.907 0.093 99.905 0.095 0.007 (0.002) 7.662 Boise 99.988 0.012 99.986 0.014 99.986 0.014 0.001 0.000 11.674 Jackson 99.802 0.198 99.782 0.218 99.782 0.218 0.020 0.001 10.279 Anchorage* 99.972 0.028 99.971 0.029 99.969 0.031 0.001 (0.002) 3.564 Honolulu** 98.334 1.666 97.946 2.054 98.167 1.833 0.388 0.221 23.270 * Based on 240 CM DBS receive antenna (See www. directv. com/ DTVAPP/ learn/ FAQ_ DTVBasics. jsp) ** Based on 90 cm DBS receive antenna Notes: 1. The absolute value of the difference is the same whether comparing availability or outage (unavailability). 2. Cities shown in gray are additional cities analyzed in Second Report and Order to validate results of original 32 city sample. 3. Values shown in brackets indicate better DBS performance with regional EPFD than with an assumed 10% limit on unavailability. 62 Federal Communications Commission FCC 03- 97 63 Table 2: Satellite Located at 110 o West Longitude – Comparison of Availability and Unavailability (Outage) Attributable to MVDDS for various criteria (all values are expressed as a percentage over a year) Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Philadelphia 99.728 0.272 99.650 0.350 99.701 0.299 0.079 0.051 28.892 Washington DC 99.736 0.264 99.664 0.336 99.709 0.291 0.072 0.045 27.121 New York 99.748 0.252 99.678 0.322 99.723 0.277 0.070 0.045 27.811 Houston 99.529 0.471 99.462 0.538 99.482 0.518 0.068 0.020 14.380 Boston 99.780 0.220 99.714 0.286 99.758 0.242 0.067 0.044 30.241 Nashville 99.714 0.286 99.648 0.352 99.685 0.315 0.066 0.037 23.007 Dallas 99.617 0.383 99.557 0.443 99.578 0.422 0.059 0.021 15.493 Pittsburgh 99.796 0.204 99.739 0.261 99.775 0.225 0.056 0.036 27.482 Columbus 99.767 0.233 99.723 0.277 99.743 0.257 0.044 0.021 18.852 Cincinnati 99.748 0.252 99.705 0.296 99.723 0.277 0.044 0.018 17.402 Cleveland 99.792 0.208 99.752 0.248 99.771 0.229 0.040 0.019 19.260 Kansas City 99.784 0.216 99.747 0.253 99.763 0.237 0.037 0.015 17.146 Miami 99.633 0.367 99.598 0.403 99.596 0.404 0.035 (0.001) 9.673 Detroit 99.829 0.171 99.796 0.204 99.812 0.188 0.033 0.016 19.532 Chicago 99.822 0.178 99.790 0.210 99.804 0.196 0.032 0.014 18.034 Orlando 99.683 0.317 99.651 0.349 99.651 0.349 0.032 0.000 10.057 Milwaukee 99.829 0.171 99.798 0.202 99.812 0.188 0.031 0.014 18.139 Minneapolis 99.838 0.162 99.808 0.192 99.821 0.179 0.029 0.013 18.176 Indianapolis 99.751 0.249 99.722 0.278 99.726 0.274 0.029 0.004 11.807 Tampa 99.696 0.304 99.668 0.332 99.666 0.334 0.029 (0.002) 9.414 St. Louis 99.751 0.249 99.729 0.271 99.726 0.274 0.022 (0.003) 8.963 Atlanta 99.814 0.186 99.794 0.206 99.796 0.204 0.020 0.001 10.830 Greenville 99.829 0.171 99.810 0.190 99.812 0.188 0.019 0.002 11.040 Charlotte 99.868 0.132 99.852 0.148 99.855 0.145 0.017 0.003 12.614 63 Federal Communications Commission FCC 03- 97 64 Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Phoenix 99.874 0.126 99.858 0.142 99.861 0.139 0.016 0.003 12.560 Seattle 99.869 0.131 99.855 0.145 99.856 0.144 0.014 0.001 11.069 Sacramento 99.863 0.138 99.848 0.152 99.849 0.151 0.014 0.001 10.473 Portland 99.899 0.101 99.888 0.112 99.889 0.111 0.011 0.001 11.100 San Francisco 99.882 0.118 99.871 0.129 99.870 0.130 0.011 (0.001) 9.500 San Diego 99.936 0.064 99.928 0.072 99.930 0.070 0.008 0.002 13.208 Los Angeles 99.959 0.041 99.953 0.047 99.955 0.045 0.006 0.002 13.902 Denver 99.970 0.030 99.966 0.034 99.967 0.033 0.004 0.001 14.527 Baton Rouge 99.752 0.248 99.726 0.274 99.727 0.273 0.025 0.001 10.260 New Orleans 99.740 0.260 99.714 0.286 99.714 0.286 0.026 0.000 10.176 Shreveport 99.805 0.195 99.786 0.214 99.786 0.214 0.019 0.000 9.873 Billings 99.977 0.023 99.975 0.025 99.975 0.025 0.003 0.001 12.532 Fargo 99.893 0.107 99.882 0.118 99.882 0.118 0.011 0.000 10.173 Salt Lake City 99.988 0.012 99.986 0.014 99.987 0.013 0.002 0.001 15.683 Omaha 99.816 0.184 99.781 0.219 99.797 0.203 0.035 0.016 18.740 Oklahoma City 99.775 0.225 99.738 0.262 99.753 0.247 0.037 0.015 16.667 Boise 99.988 0.012 99.987 0.013 99.987 0.013 0.002 0.000 13.149 Jackson 99.785 0.215 99.762 0.238 99.763 0.237 0.023 0.001 10.522 Anchorage* 99.942 0.058 99.937 0.063 99.937 0.063 0.005 (0.001) 8.929 Honolulu** 99.911 0.089 99.909 0.091 99.902 0.098 0.002 (0.007) 2.198 *Based on 180 cm DBS receive Antenna ** Based on 90 cm DBS receive Antenna Notes: 1. The absolute value of the difference is the same whether comparing availability or outage (unavailability). 2. Cities shown in gray are additional cities analyzed in Second Report and Order to validate results of original 32 city sample. 3. Values shown in brackets indicate better DBS performance with regional EPFD than with an assumed 10% limit on unavailability. 64 Federal Communications Commission FCC 03- 97 65 Table 3: Satellite Located at 119 o West Longitude – Comparison of Availability and Unavailability (Outage) Attributable to MVDDS for various criteria (all values are expressed as a percentage over a year) Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Miami 99.503 0.497 99.449 0.551 99.453 0.547 0.054 0.004 10.905 Orlando 99.571 0.429 99.522 0.478 99.528 0.472 0.050 0.006 11.567 Tampa 99.593 0.407 99.546 0.454 99.552 0.448 0.047 0.006 11.564 Atlanta 99.747 0.253 99.713 0.287 99.721 0.279 0.034 0.008 13.389 Greenville 99.761 0.239 99.731 0.269 99.737 0.263 0.031 0.007 12.825 Philadelphia 99.834 0.166 99.807 0.193 99.817 0.183 0.027 0.010 15.986 Charlotte 99.811 0.189 99.784 0.216 99.792 0.208 0.026 0.007 13.893 New York 99.844 0.156 99.821 0.179 99.828 0.172 0.023 0.007 14.779 Houston 99.738 0.262 99.716 0.284 99.711 0.289 0.022 (0.004) 8.384 Washington DC 99.840 0.160 99.819 0.181 99.824 0.176 0.022 0.006 13.659 Boston 99.861 0.139 99.839 0.161 99.846 0.154 0.021 0.007 15.125 Nashville 99.838 0.162 99.819 0.182 99.822 0.178 0.020 0.004 12.245 Seattle 99.843 0.157 99.823 0.177 99.827 0.173 0.020 0.004 12.516 Indianapolis 99.874 0.126 99.855 0.145 99.862 0.138 0.019 0.007 15.421 Sacramento 99.835 0.165 99.816 0.184 99.819 0.181 0.019 0.003 11.658 Dallas 99.791 0.209 99.773 0.227 99.770 0.230 0.018 (0.003) 8.708 Pittsburgh 99.881 0.120 99.863 0.137 99.869 0.131 0.018 0.006 14.728 San Francisco 99.860 0.140 99.844 0.156 99.846 0.154 0.016 0.002 11.748 Portland 99.879 0.121 99.864 0.136 99.867 0.133 0.015 0.003 12.541 Cincinnati 99.857 0.144 99.843 0.157 99.842 0.158 0.014 (0.001) 9.477 Columbus 99.865 0.135 99.852 0.148 99.852 0.148 0.013 (0.001) 9.651 Cleveland 99.880 0.120 99.868 0.132 99.868 0.132 0.012 0.000 9.718 Los Angeles 99.922 0.078 99.911 0.089 99.914 0.086 0.011 0.004 14.781 Kansas City 99.885 0.115 99.875 0.125 99.874 0.126 0.011 (0.001) 9.329 65 Federal Communications Commission FCC 03- 97 66 Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) San Diego 99.920 0.080 99.911 0.089 99.912 0.088 0.010 0.002 12.186 Detroit 99.903 0.097 99.893 0.107 99.893 0.107 0.010 0.000 9.866 Chicago 99.902 0.098 99.893 0.107 99.893 0.107 0.010 0.000 9.734 Milwaukee 99.907 0.093 99.898 0.102 99.897 0.103 0.009 0.000 9.871 Minneapolis 99.915 0.085 99.906 0.094 99.906 0.094 0.008 0.000 9.848 Phoenix 99.941 0.059 99.936 0.064 99.935 0.065 0.004 (0.002) 7.227 St. Louis 99.864 0.136 99.862 0.138 99.850 0.150 0.002 (0.012) 1.393 Denver 99.987 0.013 99.985 0.015 99.985 0.015 0.001 0.000 8.889 Baton Rouge 99.683 0.317 99.646 0.354 99.652 0.348 0.037 0.006 11.772 New Orleans 99.666 0.334 99.627 0.373 99.632 0.368 0.039 0.006 11.731 Shreveport 99.753 0.247 99.722 0.278 99.728 0.272 0.030 0.006 12.231 Billings 99.969 0.031 99.965 0.035 99.966 0.034 0.004 0.001 14.020 Fargo 99.846 0.154 99.824 0.176 99.830 0.170 0.022 0.007 14.365 Salt Lake City 99.984 0.016 99.981 0.019 99.982 0.018 0.003 0.001 19.199 Omaha 99.903 0.097 99.893 0.107 99.893 0.107 0.009 0.000 9.566 Oklahoma City 99.882 0.118 99.871 0.129 99.870 0.130 0.011 (0.001) 9.185 Boise 99.996 0.004 99.995 0.005 99.995 0.005 0.000 0.000 7.725 Jackson 99.719 0.281 99.685 0.315 99.691 0.309 0.034 0.006 12.195 Anchorage* 99.987 0.013 99.987 0.013 99.986 0.014 0.000 (0.001) 3.720 Honolulu** 99.635 0.365 99.602 0.398 99.599 0.401 0.033 (0.003) 9.072 *Based on 180 cm DBS receive Antenna ** Based on 90 cm DBS receive Antenna Notes: 1. The absolute value of the difference is the same whether comparing availability or outage (unavailability). 2. Cities shown in gray are additional cities analyzed in Second Report and Order to validate results of original 32 city sample. 3. Values shown in brackets indicate better DBS performance with regional EPFD than with an assumed 10% limit on unavailability. 66 Federal Communications Commission FCC 03- 97 67 Table 4: Satellite Located at 61.5 o West Longitude – Comparison of Availability and Unavailability (Outage) Attributable to MVDDS for various criteria (all values are expressed as a percentage over a year) Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Seattle* 98.282 1.718 98.108 1.892 97.756 2.244 0.525 0.352 30.563 Los Angeles 99.693 0.307 99.662 0.338 99.659 0.341 0.033 0.002 10.869 Miami 99.847 0.153 99.832 0.168 99.840 0.160 0.007 (0.009) 4.447 Kansas City 99.902 0.098 99.893 0.107 99.896 0.104 0.007 (0.003) 6.752 Detroit 99.948 0.052 99.942 0.058 99.944 0.056 0.004 (0.002) 7.048 Washington 99.966 0.034 99.963 0.037 99.965 0.035 0.002 (0.002) 5.030 New York 99.972 0.028 99.969 0.031 99.970 0.030 0.002 (0.001) 5.654 * The availability for this city is less than the desired 99.8%. Notes: 1. The absolute value of the difference is the same whether comparing availability or outage (unavailability). 2. Values shown in brackets indicate better DBS performance with regional EPFD than with an assumed 10% limit on unavailability. 67 Federal Communications Commission FCC 03- 97 68 Table 5: Satellite Located at 148 o West Longitude – Comparison of Availability and Unavailability (Outage) Attributable to MVDDS for various criteria (all values are expressed as a percentage over a year) Baseline (Rain Only) Rain plus MVDDS (using regional EPFD) Rain plus MVDDS (assuming 10% limit) Increase in Outage (using regional EPFD) Difference Between Rain plus MVDDS and Baseline (rain only) Rain plus MVDDS Difference between Regional EPFD and assumed 10% limit Increase in Outage Over Baseline (using regional EPFD) City Availability Outage Availability Outage Availability Outage (%) Seattle* 98.470 1.530 98.145 1.855 98.316 1.684 0.325 0.170 21.216 San Francisco 99.502 0.498 99.374 0.626 99.452 0.548 0.128 0.078 25.763 Portland 99.610 0.391 99.498 0.502 99.570 0.430 0.111 0.072 28.553 Dallas 99.627 0.373 99.599 0.401 99.589 0.411 0.028 (0.009) 7.560 Detroit 99.681 0.319 99.653 0.347 99.649 0.351 0.028 (0.004) 8.709 Los Angeles 99.925 0.075 99.915 0.085 99.917 0.083 0.010 0.002 12.882 Phoenix 99.933 0.067 99.929 0.072 99.926 0.074 0.004 (0.003) 5.926 * The availability for this city is less than the desired 99.8%. Notes: 1. The absolute value of the difference is the same whether comparing availability or outage (unavailability). 2. Values shown in brackets indicate better DBS performance with regional EPFD than with an assumed 10% limit on unavailability. 68 Federal Communications Commission FCC 03- 97 69 Table 6: Comparison of Old and New (Spot Beam) Satellite at 110 o West Longitude for Selected Cities Baseline Outage (Rain Only) Rain plus MVDDS Outage (using regional EPFD) Increase in Outage Minutes Minutes Minutes Percent Old New Old New Old New Old New Philadelphia 1429.000 204.040 1842.000 215.323 413.000 11.283 28.901 5.530 Washington DC 1388.300 203.230 1765.000 212.977 376.700 9.747 27.134 4.796 New York 1323.600 58.249 1692.000 59.127 368.400 0.878 27.833 1.507 Boston 1156.800 115.091 1506.500 119.273 349.700 4.182 30.230 3.634 Nashville 1504.400 127.989 1850.100 131.459 345.700 3.470 22.979 2.711 Kansas City 1134.800 90.464 1329.700 92.041 194.900 1.577 17.175 1.743 Oklahoma City* 1182.000 925.122 1379.000 1051. 000 197.000 125.878 16.667 13. 607 Charlotte 692.100 156.056 779.300 160.409 87.200 4.353 12.599 2.789 Phoenix* 661.900 514.250 744.600 565.918 82.700 51.668 12.494 10.047 Seattle 689.000 233.658 765.300 244.440 76.300 10.782 11.074 4.614 Los Angeles 215.800 172.765 245.600 186.908 29.800 14.143 13.809 8.186 Denver 155.600 33.717 178.100 35.540 22.500 1.823 14.460 5.407 Note: All calculations done using spot beam except those indicated by *. In these cases, a spot beam is not available for this city and the CONUS beam was used. 69 Federal Communications Commission FCC 03- 97 70 SEPARATE STATEMENT OF COMMISSIONER KEVIN J. MARTIN APPROVING IN PART AND DISSENTING IN PART Re: Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range; Amendment of the Commission’s Rules to Authorize Subsidiary Terrestrial Use of the 12.2- 12.7 GHz Band by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide a Fixed Service in the 12.2- 12.7 GHz Band, Fourth Memorandum Opinion and Order and Order, ET Docket No. 98- 206, RM- 9147, and RM- 9245. I approve in part and dissent in part for the reasons explained in my earlier separate statement on this matter. See Separate Statement of Commissioner Kevin J. Martin, Approving in Part and Dissenting in Part, Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range; Amendment of the Commission’s Rules to Authorize Subsidiary Terrestrial Use of the 12.2- 12.7 GHz Band by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide a Fixed Service in the 12.2- 12.7 GHz Band, Memorandum Opinion and Order and Second Report and Order, ET Docket No. 98- 206, RM- 9147, and RM- 9245 (rel. May 23, 2002). 70