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A. 1. a.(1)(a) i) a) I 1. 1. a.(1)(a) i) a)ҊX` hp x (#%'0*,.8135@8:7nC:,(Xn4  pG;XW!@(#,9h@\  P6G;hP#|j 2+ =GZ KLine Draw (Scalable-PE)Times New RomanTimes New Roman BoldHP LaserJet 4M (PCL)HPLA4MPC.PRSd\( @0\;]j@"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2MK] K ZB"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddya X$-#Xj\  P6G; XP#Ѝ Further Notice at 3351.x  X!-d'40. Comments. A number of parties addressing the issue oppose a standard based on mileage. ACS argues that the use of 20 miles as a benchmark would be arbitrary and""*>0*((!" inconsistent with the Commission's statement, in a discussion of an unrelated rule elsewhere  X-in the Further Notice, that an educator is unlikely to serve a site that is more than 35 miles  X-from the transmitter.?a XK-#Xj\  P6G; XP#Ѝ ACS Further Comments at 12, citing Further Notice at 3352. The two rules have  X4-different purposes, as we discuss further at paragraph  20/3560 , below. In this regard, some commenters contend that many ITFS stations  X-serve sites more than 20 miles from the transmitter.@ba X-#Xj\  P6G; XP#Ѝ CSU Northridge Further Comments at 2; RuralVision Further Comments at 67. Under a mileagebased definition, HITN argues that two cochannel stations more than 20 miles apart would be considered to be in different areas of operation, even if they would in fact interfere with each other. Thus,  Xv-HITN and RuralVision advocate the proposed interferencebased definition.Ava X: -#Xj\  P6G; XP#э HITN Further Comments at 79; RuralVision Further Comments at 67. One commenter advocates combining the two proposals. Specifically, Central Texas supports the 20mile definition, but adds that, if an applicant could show that two sites less than 20 miles apart could nevertheless operate without cochannel interference, it should be allowed to operate up to four channels at each site without violating the rule. The commenter classifies this as a flexible approach that takes area terrain into account. It also helps large rural areas served by  X -only a few schools that are qualified to become ITFS licensees, according to Central Texas.B a Xa-#Xj\  P6G; XP#э Central Texas Further Comments at 78.  X -d(41. A few commenters, broaching a definition not advanced in the Further Notice, propose to link the definition of an "area of operation" to the facility's protected service area,  X-thereby making the rules governing ITFS and MDS more consistent.0Cua X-#Xj\  P6G; XP#э North American Catholic Further Comments at 5; Hardin Further Comments at 2; ACS Further Comments at 12. The protected service area is discussed more fully below, at  X-paragraph  PSA45 .0 To foster the expansion of ITFS service, North American Catholic recommends waiving the rule for any applicant proposing more than four channels within the 15mile protected service area, as long"b C0*((h"  X-as there are no competing applications for those channels.Da Xy-#Xj\  P6G; XP#э North American Catholic Further Comments at 5. A smaller area would allow an educator to place receive sites without a waiver in locations for which it would otherwise need a waiver, i.e., between 15 and 25 miles from the transmitter. Thus, a licensee would be able to have more receive sites, and they could be located more compactly. The Educational Parties also  X-advocate a definition not discussed in the Further Notice, based on whether the second facility is necessary to serve receive sites that cannot reasonably be served by the first. Specifically, if all of a second facility's proposed receive sites can be served by both facilities, the stations would be duplicative and considered to be in the same area of operation. Thus, they add, some service overlap would be acceptable if it were the only way to reach some receive  Xv-sites.Ev4a X[ -#Xj\  P6G; XP#э Educational Parties Further Comments at 1718.  XH-d)42. Discussion. Having examined the record before us, we find that the mileage proposal that is currently in use by the staff should be the basis of the rule. Our experience has demonstrated that this standard is efficient and easily understood and implemented. Determining a station's area of operation by use of the interference approach would require a considerable amount of technical analysis by the staff. As a consequence, adoption of this proposal could inordinately slow processing and delay service to the public. We also see no reason to link the fourchannel rule to the conceptually unrelated protected service area. The protected service area is based on the service area of a commercial wireless cable entity; the fourchannel rule's area of operation is based on the educational needs of the ITFS licensee. Further, neither the record nor our experience suggests that an educator's area of operation is in fact limited to the smaller 15mile area covered by the protected service area and should accordingly be diminished from the currently applied standard. Indeed, as noted above, several educators have commented that, not infrequently, ITFS facilities serve receive sites more than 20 miles away.  X-d*43. We also reject the Educational Parties' proposal that we base our definition on whether the second facility is necessary to serve receive sites that cannot reasonably be served by the first. This proposal would be susceptible to significant abuse, because it would allow applicants to design a series of closely spaced systems, each with one or a few receive sites that could not be served by the prior system. These systems would then be considered to be in separate areas of operation, despite the substantial overlap in service area that could result. We do not believe that this result would be consistent with our intent to preserve as much channel capacity for as many educational applicants as possible.  X -d+44. In adopting the 20mile criterion, we recognize that any mileage standard will be imprecise, because there will always be educators that serve sites beyond the designated distance. However, the brightline test we are adopting today has the important advantage of being easy for applicants to comprehend and apply. Further, the Commission staff can"E0*((" process applications far more efficiently using this standard. Moreover, Commission staff, educators, and wireless cable entities are extremely familiar with this standard, having utilized it for a number of years. Thus, it will foster much more rapid processing of applications and inauguration of service to the public. Our long experience with the 20mile standard suggests that it is a practical and effective tool. We also note that many of the concerns expressed by the commenters can continue to be addressed on a casebycase basis. Specifically, if an applicant can present good cause to waive the fourchannel rule, we will consider the public  X_-interest benefits of doing so.F_a X-#Xj\  P6G; XP#э See WAIT Radio v. FCC, 418 F.2d 1153 (1969). Our action herein, we believe, meets the directive of the court to analyze and clearly define an "area of operation" for the purposes  X -of the fourchannel rule. See also Hispanic Information and Telecommunications Network,  X -Inc. v. FCC, 865 F.2d 1289 (D.C. Cir. 1989), remand pending.  X1- Protected Service Areas Đ  X -d,45. ProposalPSA. The Further Notice also solicited comment on a proposed change in the application of protected service areas for wireless cable lessees. Currently, we provide a 15mile interference protection for a service area regardless of receive site locations, but solely at the request of the ITFS applicant or licensee. Generally, this benefits the wireless cable lessee, because it ensures interference protection within an area where receive sites are not specified, or extends protection over an area where receive sites are not currently located. By so doing, these areas provide a measure of protection to lessees, thereby encouraging new  Xb-or improved wireless cable service.Gb4a XG-#Xj\  P6G; XP#э Wireless Cable Reconsideration at 676567.  X4-d-46. The Further Notice observed that an applicant for new facilities often requests and receives interference protection that restricts an existing licensee lacking such protection from pursuing certain modifications to its facilities. At the same time, an existing facility that has not requested such protection, upon learning that an application for a nearby operation has been filed, often requests interference protection and possibly obstructs the new applicant.  X-The Further Notice expressed the view that these practices may be an abuse of our processing system that diminishes competition, significantly impacts our processing, and delays the inauguration of new or improved service to the public. Moreover, we stated, such practices unfairly disrupt existing operations and alreadyproposed facilities. We therefore proposed to apply interference protection only prospectively, making it effective solely with regard to applications filed after the protection request. We asked commenters whether our proposal would sufficiently diminish the disruption and delay resulting from the current system. We also asked commenters to address a specific application of the proposed rule: If two applications are (1) submitted during the same filing window, (2) otherwise grantable, and (3)" G0*((=" mutually exclusive only because both applicants request a protected service area, we proposed  X-to consider them as mutually exclusive.xHa Xb-#Xj\  P6G; XP#Ѝ Further Notice at 3352.x  X-d.47. Comments.Iya X-#Xj\  P6G; XP#Ѝ Some commenters request a redefinition of the protected service area. However, discussion of that issue would be inappropriate, because it is already under consideration in  X-another proceeding. See Report and Order in Gen. Docket No. 9054, 5 FCC Rcd 6410  X -(1990), recon. granted on other grounds, 6 FCC Rcd 6764 (1991), petition for recon. pending. Only two parties oppose the proposal to apply the 15mile protected service area prospectively only: the Educational Parties, who claim that there has  X-been no abuse of the protected service area,Ja X# -#Xj\  P6G; XP#Ѝ Educational Parties Further Comments at 19. and United States Interactive and Microwave  Xv-Television Association, who claims it would not deter frequency speculators.Kva X-#Xj\  P6G; XP#э United States Interactive and Microwave Television Association Further Reply at 3. Most  X_-commenters addressing the proposal express support.L_G a XW-#Xj\  P6G; XP#Ѝ Central Texas Further Comments at 89; Heartland Further Comments at 1011; RuralVision Further Comments at 1011. HITN advocates the proposal, but would exempt existing facilities. According to HITN, wireless cable lessees must be able to apply the protected service area regressively, in order to address what it claims is the most frequent abuse of the protected service area. Specifically, according to the commenter, another wireless cable operator often finds a number of educators to apply for licenses in several small markets that encircle a larger market, thereby shrinking the larger market's service area by their protected service areas. HITN claims that this hinders the future, orderly development of wireless cable systems in large markets, and that its proposed exception is  X -needed to prevent further abuse.yM a X9-#Xj\  P6G; XP#Ѝ HITN Further Comments at 910.y "yM0*(("  X-d/48. Four commenters address whether we should consider as mutually exclusive two applications that are submitted during the same filing window, otherwise grantable, and mutually exclusive only because both applicants request a protected service area. United States Interactive and Microwave Television Association opposes the proposal, again claiming  X-that it would not deter speculators.Na X-#Xj\  P6G; XP#э United States Interactive and Microwave Television Association Further Reply at 3. RuralVision and WCA, however, profess support.Oya X-#Xj\  P6G; XP#Ѝ RuralVision Further Comments at 1011; WCA Further Comments at 1819. The former commenter also proposes an exception under a particular set of circumstances. Specifically, RuralVision proposes that this aspect of the rule be waived if the applicant can demonstrate that (1) less than five percent of another applicant or licensee's protected service area would receive interference, and (2) the nature of that area is such that no subscribers or potential subscribers would be affected by the interference (within a lake, for example). Under such circumstances, it states, the applications should not be considered mutually  X -exclusive.P *a X-#Xj\  P6G; XP#Ѝ RuralVision Further Comments at 1011. Opposing RuralVision's proposed exception, WCA responds that the Commission has already rejected automatic waiver of MDS interference protection standards where the  X -interference is minimal.Q a Xa-#Xj\  P6G; XP#э WCA Further Reply at 17, citing Family Entertainment Network, Inc., 9 FCC Rcd 566, 567 (1994).  X -d049. Finally, two commenters propose that the Commission in the future grant the  X-protected service area automatically, unless specifically declined by the applicant.Rua X-#Xj\  P6G; XP#Ѝ Heartland Further Comments at 11; HITN Further Comments at 10. One of these commenters also requests the Commission to grant 15mile protected service areas to all current licensees and applicants, to the extent that they have such reach after consideration of  XK-all previously filed applications.wSK& a X"-#Xj\  P6G; XP#Ѝ HITN Further Comments at 10.w  X-d150. Discussion. For the reasons stated in the Further Notice, we conclude that the public interest will be served by adoption of the proposal to apply protected service area protection only prospectively. Thus, an applicant for new facilities will no longer be able to receive interference protection that restricts an existing licensee without such protection from seeking certain modifications to its facilities. Similarly, an existing facility without such protection will not be able to request interference protection that obstructs the new applicant. Adoption of the proposal will diminish disruption to existing and proposed facilities. We reject, however, HITN's proposed exception concerning existing facilities. For more than three years, ITFS licensees have been afforded the unrestricted opportunity during their initial construction periods and thereafter to request protection for their facilities, if they so chose. "N S0*((" The record does not reflect any obstacle to any wireless cable operator's having requested, through the ITFS applicant or licensee, a protected service area. Moreover, adoption of HITN's proposal is not necessary to eliminate the abuse complained of. With the adoption of  X-a window filing process, the problem we identified in the Notices, of existing licensees filing minor change applications creating mutually exclusive situations with pending applications, will be eliminated. The window filing process will prevent the identification of pending applications that could be obstructed by the licensee's filing of such minor change application, and further ensure that the submission of a protected service area request is principally motivated by the licensee's desire to enhance or expand its own system.  X -d251. Only one commenter expressed opposition to the proposed specific application of the rule involving mutual exclusivity. With regard to the proposed exception advanced by RuralVision, we shall adopt it in part. We agree that there is no public interest benefit in protecting an uninhabitable area. To do so would needlessly restrict neighboring facilities, unduly depriving the area of both ITFS and wireless cable programming. Thus, if an applicant shows that interference will occur solely over water, we shall not consider the applications to be mutually exclusive. However, in order to avoid future conflicting interpretations and confusion, we will not extend the exception to cover any area in which no subscribers or potential subscribers would be affected by the interference.  X4-d352. We decline to adopt RuralVision's proposal that two applications not be considered mutually exclusive if less than five percent of one applicant or licensee's protected service area will receive interference from the other's facilities. We find no support in the record for diminishing the protection we have afforded excess capacity lessees as an incentive for them to construct viable ITFS and wireless cable facilities. Moreover, we find only minimal countervailing public interest benefits in the proposal. While some additional facilities might be constructed, many viewers could be deprived of the quality reception that the Commission has always held as a standard. Indeed, the emerging wireless cable industry is less likely to successfully compete with cable if subscribers cannot enjoy the highest quality reception reasonably possible.  X7-d453. Finally, we decline to adopt the proposals automatically to grant protected service areas to all current licensees, all current applicants, and all future applicants. As noted above, applicants and licensees have had no obstacle to requesting a protected service area on their own. We also shall not automatically grant protected service areas in the future, as such protection may in fact not be desired or utilized by the applicant. We are also changing our application form and expressly asking whether the applicant seeks this protection. This will further expedite processing.  X#- Receive Site Interference Protection Đ  XQ%-d554. Proposal. The Commission's rules currently provide interference protection to  X:&-an educator's receive sites, regardless of their distance from the transmitter. The Further  X#'-Notice cited instances in which interference protection was requested for receive sites"#'S0*((%" apparently beyond an educational institution's reasonable coverage area. We stated in the  X-Further Notice that such requests could be an abuse of our processes, designed to artificially increase the service area of the wireless cable lessee. We also opined that eliminating this practice would significantly increase the efficiency of our processing of applications, thereby hastening service to the public.  Xv-d655. We tentatively concluded that an educational institution is generally unlikely to reasonably serve a receive site located more than 35 miles from the transmitter. Thus, absent a showing of unique circumstances, we proposed to protect only those receive sites 35 miles or less from the transmitter. Further, we proposed that an applicant not be able to claim basic  X -eligibility for a license by use of any receive site more than 35 miles from the transmitter.xT a X -#Xj\  P6G; XP#э Further Notice at 3352.x  X -d756. Comments. The commenters are nearly evenly divided on whether to adopt the 35mile standard for receive site interference protection. Opponents argue that the mileage standard is arbitrary, not reflecting that educators may legitimately serve sites beyond 35  X -miles from the transmitter, especially in rural areas.U ya X-#Xj\  P6G; XP#Ѝ ACS Further Comments at 14; CSU Northridge Further Comments at 2; RuralVision Further Comments at 1213; WCA Further Comments at 3739. ACS, WCA, and HITN propose that all  X-receive sites within the protected service area should automatically be protected.cVa XT-#Xj\  P6G; XP#Ѝ WCA supports a rebuttable, rather than absolute, presumption that such receive sites can be adequately served. Also, WCA's suggestion assumes the adoption of its proposed redefinition of the protected service area, discussed above. WCA Further Comments at 3739.c HITN would deny protection to any receive site outside the protected service area, asserting that this  Xb-clear demarcation would deter abuse.wWba X-#Xj\  P6G; XP#Ѝ HITN Further Comments at 10.w Several other commenters, however, argue that any receive site that can in fact be adequately served should be eligible for receive site  X4-interference protection, regardless of location.X4G a X,-#Xj\  P6G; XP#Ѝ North American Catholic Further Comments at 4; WCA Further Comments at 3739; RuralVision Further Comments at 1213; ACS Further Comments at 14.  X-d857. In contrast, the 35mile standard was supported by several commenters,Y a X"-#Xj\  P6G; XP#э E.g., Vermont Wireless Cooperative (Vermont Wireless) Further Comments; Educational Parties Further Comments at 1920; Central Texas Further Comments at 9. many of whom would also incorporate the interference test. They propose automatic interference protection for receive sites within the 35mile limit, and a rebuttable presumption that farther receive sites cannot adequately be served. An applicant demonstrating otherwise would"{Y0*(("  X-receive interference protection for the particular site in question.Za Xy-#Xj\  P6G; XP#Ѝ American Telecasting Further Comments at 1314; Hardin Further Comments at 3; Heartland Further Comments at 11; Educational Parties Further Reply at 56. Central Texas advocates that the Commission not authorize new receive sites for applicants unless they have already placed their facilities into operation. It alleges that such a restriction would deter parties from  X-abusively applying for receive sites solely to prevent legitimate operators from expanding.[ba X-#Xj\  P6G; XP#э Central Texas Further Comments at 9.  X-d958. Our second proposal, regarding basic eligibility through receive sites located more than 35 miles from the transmitter, was directly addressed by only two commenters.  X_-Vermont Wireless expresses its support for the proposal as put forth in the Further Notice.}\_a X# -#Xj\  P6G; XP#э Vermont Wireless Further Comments.} RuralVision, however, advocates not allowing an applicant to use such a receive site to establish its basic eligibility unless it has demonstrated that it can adequately serve that site. The commenter also supports a similar requirement for receive sites that are used for tie X -breaking purposes.~] a Xx-#Xj\  P6G; XP#э RuralVision Further Comments at 13.~  X -d:59. Discussion. With regard to the 35mile proposal, we acknowledge the concerns of some commenters that educators may at times serve receive sites beyond the proposed boundary. We also acknowledge RuralVision's statement that schools in rural areas are frequently more than 35 miles apart. It is true that an educator might indeed be able to serve two sites more than 35 miles apart. In fact, however, under the proposed rule, a licensee could protect two receive sites that were as far as 70 miles apart, depending on the location of the transmitter. Thus, we find that the 35mile standard is not unduly restrictive, and we adopt the proposal as it regards both interference protection and basic eligibility for receive sites not more than 35 miles from the transmitter. However, we will waive the rule for a particular site if an applicant can demonstrate that it is located within the educator's reasonable coverage area.  X-d;60. We next address an issue raised by one of the commenters in relation to the fourchannel rule: how to justify defining a service area as 35 miles in one context, and 20 miles in another. Significantly, the two rules have differing purposes. The fourchannel rule addresses the facility's general service area, i.e., the area within which an educator can reasonably expect the substantial majority of its receive sites to be located. In contrast, our receive site interference rules concern a different and much smaller set: only the farthest sites that an educator generally and reasonably can expect to be protected. By definition, they involve more distant sites, and therefore a larger area that subsumes the general service area. Accordingly, the mileage standard is greater for the receive site interference protection rule than for the fourchannel rule. 20/35  As the purposes of the two rules are unrelated, the standards"u]0*((Z"  X-used to define an area of operation are also unrelated.D^va Xy-#Xj\  P6G; XP#э We note the similarity to the broadcast multipleownership rules in this respect. The duopoly rules are concerned with common station ownership within the same service, and they define an area of operation by use of frequency contours. 47 C.F.R.  73.3555(a) and (b). In contrast, the onetoamarket rule addresses common ownership between separate services, television and radio, and its definition of an area of operation is based on commercial markets. 47 C.F.R.  73.3555(c).D Turning to more specific applications of the rule, we decline to adopt Central Texas' proposal not to authorize any new receive site unless the applicant has already placed its facilities into operation. This would place a significant obstacle to an educator and a newly formed wireless cable operator with which it may be associated, as they might lack the funds to fully implement a competitive MDS  X-system.__a XD -#Xj\  P6G; XP#э Hardin and Heartland propose requiring an educator to initiate service to any protected receive site beyond the 35mile boundary within a specified period of time, in order to prevent abuse. Hardin Further Comments at 3; Heartland Further Comments at 11. However, when we receive the required certification of construction from the ITFS licensee, we expect that it applies to the facilities as authorized, i.e., all receive sites. If, however, an applicant has abandoned its intent to use a receive site, we expect it to inform us in a timely manner. The deletion of a receive site will no longer require prior Commission approval.  X_- Major Modifications Đ  X1-d<61. Proposal. We turn now to our proposal to reclassify certain types of  X -modifications to existing ITFS facilities. As stated in the Further Notice, we have classified  X -these as either major or minor, attaching different procedural rules to each. In the Further  X -Notice, we expressed our belief that our consideration of certain changes as minor does not realistically take into account the impact that they would have on the facilities in question,  X -nearby facilities, or proposed facilities.{` -a X-#Xj\  P6G; XP#э Further Notice at 335253.{  X-d=62. Consequently, we proposed to reclassify as a major change any application involving: (1) any polarization change; (2) the addition of any receive site that would experience interference from any licensee or applicant on file prior to the submission of the  XK-application; (3) an increase in the EIRP in any direction by more than 1.5 dB;aKa X"-#Xj\  P6G; XP#э Thus, total power output (TPO) would no longer be the deciding factor in determining whether a change is major. (4) an increase of 25 feet or more in the transmitting antenna height; or (5) any change that would cause interference to any previously proposed application or existing facility. We additionally proposed to formalize our policy of considering proposals to relocate a facility's transmitter site by ten miles or more as a major change. We asked whether, by limiting the opportunity"xa0*((" to file the above types of applications to open window filing periods, adoption of the proposal would diminish an educator's flexibility to respond to changing needs and circumstances. We also stated our belief that the change in definitions would make our classification of changes more consistent, enhancing the efficiency of the window filing system. Finally, we proposed to exempt from the new rule any change that would resolve mutually exclusive applications  X-without creating new frequency conflicts.ba X-#Xj\  P6G; XP#э Section 22.23(g)(2) of the Commission's Rules, 47 C.F.R.  22.23(g)(2), has a similar exception for the resolution of mutually exclusive applications in the Public Mobile Service.  X_- d>63. Comments. Most of the commenters that addressed this issue generally supported the proposal. HITN and the Educational Parties, however, did not support the proposal, stating that the changes would slow the licensing process because currentlypermitted modifications would have to be filed during a window. The Educational Parties oppose making polarization changes that eliminate interference as a major change. Many of the commenters who supported the reclassifying of amendments suggested that we adopt the rules contained in Sections 21.41 and 21.42 of the Commission's MDS rules, 47 C.F.R.  21.41, 21.42. The supporting comments assert that the adoption of the MDS modification rules would be desirable, due to the technical and regulatory relationship that exists between the two services.  Xb-d?64. Discussion. Our experience, as supported by many of the comments, warrants the need to modify the current classification system to increase processing efficiency. We do not believe that the reclassification of certain amendments as major will diminish processing efficiency, as claimed by HITN and the Educational Parties. These amendments are being reclassified precisely because their submission outside a window would likely impede processing, due to their potential effect on the facilities in question, nearby facilities, or proposed facilities. Also, adoption of the MDS classification system would not be appropriate. Its definition of a major change is significantly broader than that previously used or now adopted for ITFS. However, the MDS rolling oneday filing window is structured to accommodate such an expansive definition, and it does not significantly restrict the submission of applications to change existing facilities. The ITFS window filing system, on the other hand, is not compatible with such an expansive classification that would needlessly restrict the filing of many ITFS technical modifications. Thus, we shall classify as major any application involving: (1) any polarization change; (2) an increase in the EIRP in any direction by more than 1.5 dB; (3) an increase of 25 feet or more in the transmitting antenna height; and (4) relocation of a facility's transmitter site by ten miles or more. We shall, however, accept such applications at any time, if their grant would resolve mutually exclusive applications without creating new conflicts. Adoption of the proposal will significantly expedite the processing of ITFS applications.  X"-d@65. We do not incorporate into the new rule two types of changes that we had earlier listed: (1) the addition of any receive site that would experience interference from any"#bb0*((e"" licensee or applicant on file prior to the submission of the application; and (2) any change that would cause interference to any previously proposed application or existing facility. By eliminating the cutoff system, the window filing system will prevent parties from requesting changes that are mutually exclusive with a tendered but not yet cutoff application.  X-  X- Reasonable Assurance of Receive Sites Đ  X_-dA66. Proposal. The Further Notice requested comment on how best to ensure the accuracy of each applicant's list of receive sites. We seek to deter applicants from listing receive sites that have in fact not agreed to participate in the proposed ITFS system. We therefore proposed requiring a letter of assurance from the applicant, listing each receive site's contact person, title, and telephone number. We also asked if we should decline to consider  X -any proposed receive site that lacked such adequate assurance.xc a Xe -#Xj\  P6G; XP#э Further Notice at 3353.x  X -dB67. Comments. ACS supports the proposal, stating that the applicant's letter should also contain other information. For example, if an applicant is relying on the accreditation of its receive sites for its basic eligibility, the letter should supply supporting accreditation information. According to ACS, the letter could also contain enrollment information for  Xb-potential tiebreaking purposes..dbya X-#Xj\  P6G; XP#э ACS Further Comments at 1718. North American Catholic, which would impose a stricter rule than proposed, agrees that the letter should contain such additional data. North American Catholic Further Reply at 3.. RuralVision proposes that a school district submit one letter for all the schools within its jurisdiction, listing each school individually. However, RuralVision claims that schools may be more hesitant to sign a letter that they fear will lock them into a commitment, thereby causing them to miss the opportunity to receive ITFS programming. Thus, it proposes that a school be allowed to assert simply its interest in, not  X-necessarily its commitment to, participating in the ITFS system.ea X-#Xj\  P6G; XP#э North American Catholic supports this modified standard, but only for libraries and businesses. North American Catholic Further Reply at 3. In this regard, it alleges that the Commission's Rules would continue to protect the receive site's right to change its  X-mind as to its participation, regardless of the letter's wording.fa X!-#Xj\  P6G; XP#э RuralVision Further Comments at 1516. North American Catholic advocates the same standard, but applied only to businesses, libraries, and other institutions  X-not relevant to eligibility or tiebreaking.gG a X$-#Xj\  P6G; XP#э North American Catholic Further Reply at 3. WCA opposes altogether the modified standard proposed by RuralVision, focusing instead on receive site interference protection. According to the commenter, the public interest would be disserved if the Commission precluded an"e g0*((" applicant's potential service solely to protect a receive site that might not even use ITFS  X-programming.vha Xb-#Xj\  P6G; XP#э WCA Further Reply at 1415.v  X-dC68. Most interested commenters support a stricter requirement than we proposed. They argue that for adequate deterrence, we should require a verification letter from an  X-authorized official of each receive site listed in an application.oiya X-#Xj\  P6G; XP#Ѝ American Telecasting Further Comments at 1314; Central Texas Further Comments at 910; Hardin Further Comments at 1; National Micro Vision Further Comments at 3; RuralVision Further Comments at 1417; WCA Further Comments at 3637; North American Catholic Further Reply at 3.o Most of these commenters  Xv-generally envision each letter to contain the information described in the Further Notice: the  X_-receive sites' contact people, titles, and telephone numbers.j_a X-#Xj\  P6G; XP#э National Micro Vision also proposes that we develop a tracking system to verify that each receive site is actually utilized as pledged. National Micro Vision Further Comments at 3. We believe that the rules we are adopting today provide adequate safeguards against potential fraud to make such a precaution unnecessary. WCA, for example, avers that the letter should confirm that formal educational programming will be viewed at the receive site by students enrolled in forcredit courses offered by a specifically identified accredited institution. For each such institution, WCA adds, the application should provide the  X -accrediting body and date of accreditation.yk Q a X-#Xj\  P6G; XP#э WCA Further Comments at 3637.y  X -dD69. Only two commenters oppose the proposal in any form. HITN claims that the requirement would be superfluous, because nonlocal applicants already have to submit commitment letters on accredited school letterhead, showing the school's commitment to be a  X-receive site.vl a XC-#Xj\  P6G; XP#э HITN Further Comments at 5.v The Educational Parties contend that compiling a single list would impose an undue paperwork burden on applicants. Instead, they argue, the Commission should declare that it considers the listing of receive sites as a representation that those sites have been contacted and have agreed to participate, or, in the alternative, are under the jurisdiction of an authority that can mandate their participation. Under this proposal, petitioners would bear the burden of demonstrating otherwise. The commenter states that many receive sites are work places or public locations (such as libraries or hospitals) whose participation consists only of installing ITFS equipment and letting people watch, instead of formally committing to  X-incorporate ITFS into instructional or educational programs.ma X<&-#Xj\  P6G; XP#э Educational Parties Further Comments at 2223. "dm0*(("Ԍ X-dE70. Discussion. To better ensure the accuracy of receive site lists submitted both by local and nonlocal applicants, we adopt a modified version of the proposal. Because the submission of commitment letters by nonlocal applicants does not encompass all the situations with which we are concerned, we reject HITN's assertion that the proposal is superfluous. Processing efficiency will be enhanced because the additional data would allow for rapid confirmation of a site's participation. However, requiring a separate letter of verification from each receive site would involve the submission of not one letter, but potentially dozens of separate letters. We believe, though, that we can expedite processing to the same degree through the application form itself, rather than by separate attachments. Therefore, on the application form, where we already ask for information about each of the applicant's receive sites, we shall simply add a column asking for a contact person's name, title, and telephone number. The contact person should be the person (or one of the people) responsible for implementation of the ITFS program at that receive site.  X -dF71. We also will not adopt the modified standard of assurance suggested by RuralVision. Our goal is to ensure the availability of the receive sites that are associated with the applications being processed. The public interest is not served by the processing of applications in which we have no reasonable assurance that the receive sites have indeed agreed to participate in the ITFS system.  X4- Accreditation of Applicants Đ  X-dG72. Proposal. While applicants seeking to construct a new ITFS station must indicate their accreditation or that of the schools or other institutions that intend to utilize the  X-proposed ITFS service, we noted in the Further Notice that the extent to which the specified receive sites are being utilized by students from accredited institutions is not called for. Accordingly, we proposed to require applicants to state whether and by whom each listed receive site is accredited. We also asked whether having only one proposed receive site out of many as accredited defeats the fundamental purpose of ITFS: to serve the educational needs of accredited institutions. Thus, we invited commenters to address whether we should require a majority of receive sites to be accredited in order for the application to be grantable,  X7-or if we should deny interference protection for any unaccredited receive site.{n7a X-#Xj\  P6G; XP#э Further Notice at 335354.{  X -dH73. Comments. The proposed changes are generally opposed by the commenters. Many of them argue that receive sites are increasingly being used for distance learning without regard to whether they are accredited. According to these commenters, such distance learning gives more people, including students enrolled in accredited courses, greater access to  X!-the educational programming transmitted by the ITFS facilities.Yo!ya X%-#Xj\  P6G; XP#Ѝ E.g., ACS Further Comments at 18; Educational Parties Further Comments at 2324; American Telecasting Further Comments at 1415; WCA Further Comments at 3436; North"&n0*((&" American Catholic Further Comments at 67.Y CSU Northridge, for"!yo0*(( " example, claims that it utilizes hospitals, fire stations, and military bases as receive sites  X-where students go for distance learning.pya X-#Xj\  P6G; XP#Ѝ CSU Northridge Further Comments at 2. Also, RuralVision argues that because some states have higher fees than others for private accreditation of schools, mandatory accreditation of receive sites would unfairly deprive many smaller private schools of the opportunity to receive  X-educational programming.q*a X -#Xj\  P6G; XP#Ѝ RuralVision Further Comments at 1718.  Xv-dI74. According to HITN, the purpose of ITFS is not to serve the educational needs  X_-of accredited institutions, as we stated in the Further Notice, but simply to educate. Thus, as long as one of the applicant's receive sites is accredited, the commenter continues, the  X1-accreditation of any of the others is irrelevant.zr1a X-#Xj\  P6G; XP#Ѝ HITN Further Comments at 1011.z The Educational Parties propose that as long as the party offering the programming (not necessarily the licensee) is accredited, offers credit for some of its programming, and enrolls students that are able to take courses at listed  X -receive sites, the accreditation of those receive sites is irrelevant.s a X)-#Xj\  P6G; XP#Ѝ Educational Parties Further Comments at 2324. Even those commenters that do not oppose obtaining more detailed accreditation information urge the Commission not  X -to use such information to affect the substantive rights an applicant or licensee might have.t = a X-#Xj\  P6G; XP#Ѝ ACS Further Comments at 18; American Telecasting Further Comments at 1415. ACS, for example, alleges that the Commission can address its concerns regarding receive site  X-legitimacy through the proposed letters of assurance, discussed above.vu a X/-#Xj\  P6G; XP#Ѝ ACS Further Comments at 18.v Finally, WCA advocates the existing standard, i.e., that the only receive sites that should have interference protection are those where formal educational programming is viewed by students enrolled in  XK-forcredit courses offered by accredited institutions.yvK a X-#Xj\  P6G; XP#э WCA Further Comments at 3436.y  X-dJ75. Discussion. The record does not demonstrate that serving one accredited receive site among other unaccredited receive sites is incompatible with serving the formal, forcredit educational needs of students enrolled at accredited institutions, and we therefore decline to adopt either proposal. To do otherwise would artificially restrict those enrolled students' accessibility to formal ITFS educational programming, while depriving others of worthwhile programming, such as inservice training and instruction in special skills and safety programs. As most commenters note, while the essential purpose of the ITFS service is" Pv0*((" to provide formal educational programming to students enrolled in accredited schools, colleges and universities, the Commission has long recognized the value of transmitting "other visual and aural educational, instructional and cultural material to selected receiving locations. . ." 47 C.F.R.  74.931(a)(b). We find no evidence on the record that persuades us to now  X-significantly alter the existing relationship between the provision of formal, forcredit educational ITFS programming and the offering of other educational, instructional, and cultural material. Indeed, we reaffirm our commitment to our longstanding objective, one that permits ITFS licensees to transmit educational and cultural programs for use in other than a classroom setting or to persons other than students enrolled at accredited institutions. However, we take this opportunity to modify and make clearer our requirements regarding the need for further specification with respect to the accreditation of the parties utilizing the proposed ITFS services.  X -dK76. To attain eligibility, an ITFS applicant must, among other things, be accredited in its own right and serve its own students or serve accredited institutional or governmental organizations. It has come to our attention that some applicants accredited in their own right propose service only to receive sites which will not be used by their own students. Such applicants do not satisfy the eligibility requirements. They must, therefore, as Item 3 of Section II in the FCC Form 330 now requires, indicate the name of the "school/institution" it will serve, the accreditation date and the accrediting agency or organization. However, we have found, in processing applications, that the name of the school or institution often does not match with any receive site specified in Section VI of the Form 330. For ease of processing, we shall require, for applicants accredited in their own right and serving their own students, to identify in Section II, Item 3(a), the receive sites in Section VI which fall under their jurisdiction. For other applicants, that is, those which are accredited and not serving their own students and those applicants which are unaccredited and establishing their eligibility by serving accredited institutions, we shall require that they specify in Section II, Item 3(b), the receive sites belonging to or being used by the accredited institution. This additional information will enable the staff and all interested parties to immediately determine the accreditation status of an applicant.  XN-  X7- Other Proposals  X -dL77. Offset. The Further Notice proposed requiring the use of offset when all affected transmitters are capable of handling frequency offset stability requirements. This proposal is supported by most of the commenters. However, we believe that voluntary agreements to utilize frequency offsets better serve the public interest. The use of frequency offsets represents a balancing of the need to prevent cochannel interference with our desire to allow an increase in the number of stations in a geographic area. As such, frequency offsets are not a substitute for the standard of interference protection, a desiredtoundesired signal ratio of 45dB, that our technical rules are designed to ensure. Indeed, the efficacy of frequency offsets, which is not universally acclaimed by the engineering society, is largely determined by the exigencies of the situation at hand, requiring affected applicants and licensees to engage in cooperative efforts to construct and adjust their respective technical"#'!v0*((%" operations to successfully avail themselves of this engineering technique, if possible. Under these circumstances, we are not persuaded to require the mandatory specification of frequency offsets.  X-  X-dM78. Expedited Consideration of Applications. In the Further Notice, we asked for comments on the Educational Parties and WCA's proposal that we expedite consideration of certain ITFS applications in return for the applicant's agreeing to an accelerated construction  X_-schedule.w_a X-#Xj\  P6G; XP#Ѝ Further Notice at 3351. A licensee utilizing offset operates at a frequency either slightly higher or slightly lower than the standard frequency for that channel. Specifically, such a licensee operates its facilities with a carrier frequency within 10 kHz of the nominal carrier frequency. The stated purpose was to rapidly authorize facilities that would most likely become part of an operating wireless cable system. Most commenters are supportive of the  X1-proposal,x14a X-#Xj\  P6G; XP#Ѝ The Educational Parties, who originated the proposal, are an exception. although they disagree on the details of its implementation. Opponents of expedited consideration argue that it would not in fact accelerate the construction of viable MDS systems, because processing the likely high number of requests would delay service to the public. We agree. Rapid authorization of ITFS facilities is essential to providing unique educational programming to greater numbers of people, and to accelerating the ability of MDS systems to compete with wired cable operators. The more rapid processing sought by the commenters will likely be achieved by implementation of the filing window, as enhanced by the proposed electronic filing and processing system and the other modifications adopted in this proceeding. Hence, we do not believe that adoption of the commenters' proposal is warranted.  X4-dN79. FAA Authorization. As mentioned in the Further Notice, we do not grant or modify a license until the Federal Aviation Administration (FAA) has determined that the  X-proposed transmitter site and receive sites will pose no hazard to air navigation.ya X-#Xj\  P6G; XP#Ѝ Section 17.4 of the Commission's Rules, 47 C.F.R.  17.4. To prevent needless delay in processing, applications, we proposed to require applicants to inform the  X-Commission of the FAA's determination.xza X -#Xj\  P6G; XP#Ѝ Further Notice at 3353.x The record clearly supports our belief that enactment of this policy would speed processing at minimal cost to applicants. Therefore, to expedite processing, we require applicants to inform the Commission of the FAA's determination on a timely basis.  X|-   Xe-dO80. Interference Studies. The Further Notice noted that applicants frequently make technical claims that lack adequate supporting data. To address this problem, we proposed requiring the submission of terrain profiles and a quantitative analysis of any additional signal loss calculated by using the LongleyRice propagation model, Version 1.2.2, in the pointto" "G z0*(("ԫ X-point mode.6{a Xy-#Xj\  P6G; XP#э Longley, A. G. and P. L. Rice, "Prediction of Tropospheric Radio Transmission Loss Over Irregular Terrain: A Computer Method," ESSA Technical Report ERL 79ITS 67, Institute for Telecommunications Sciences, July, 1968.6 Most of the commenters that addressed this issue generally supported the proposal. In addition, most advocate various exceptions to the rule, allowing the use of less  X-rigorous models under a variety of circumstances.|Ka X-#Xj\  P6G; XP#э E.g., ACS Further Comments at 17; Educational Parties Further Comments at 22; WCA Further Comments at 4344; North American Catholic Further Reply at 3. Two commenters oppose the required  X-use of the Model altogether.}a XQ -#Xj\  P6G; XP#э North American Catholic Further Comments at 5; National Micro Vision Further Comments at 23. dP81. Based on the information before us, we shall not adopt the proposal. The record demonstrates that our concern will be met by the submission of any valid profile maps or sufficient data that takes terrain shielding into account and supports the validity of each claim, regardless of whether the study involves the Model. Also, for each instance where terrain shielding is relied upon to protect ITFS facilities, applicants will be required to submit the quantitative amount of signal attenuation, in dB, attributable to terrain shielding. Any study must use generally acceptable engineering practices, and applicants must state the specific model they have used in their analysis.  X -dQ82. Construction of Facilities. Some commenters express concern that the Commission has extended construction periods for parties with no intention to construct. Hence, they request strict guidelines for granting such extensions. National Micro Vision proposes decreasing the period within which an ITFS licensee must construct its facilities from 18 months to 12 months. The commenter alleges that, if its proposal were adopted, frequency speculators would quickly lose their licenses and their channels would consequently  X4-become available during the next window.~4 a Xd-#Xj\  P6G; XP#э National Micro Vision Further Comments at 1. In both cases, however, our existing rules already address these matters. We have set forth the requirements an educator must meet in order to obtain an extension of time within which to construct: (1) construction is complete and testing of the facilities has begun; (2) substantial progress has been made; or (3) reasons clearly beyond the applicant's control, which applicant has taken all possible steps to resolve,  X-have prevented construction.i0 a X#-#Xj\  P6G; XP#э Section 73.3534(b) of the Commission's Rules, 47 C.F.R.  73.3534(b), addresses this issue in the television broadcast service. Pursuant to Section 74.910 of the Commission's Rules, 47 C.F.R.  74.910, we subject unbuilt ITFS facilities to the same requirements.i We have no specific evidence that these rules have not operated sufficiently to prevent abuses by frequency speculators. Therefore, we decline to modify the period of time to construct."#0*((Q"Ԍ  X-%H CONCLUSION ĐTP dR83. Over the past decade, the Commission has actively endeavored to find new and innovative ways to encourage educational institutions to develop working ITFS systems. At the same time, we have sought to facilitate the rapid development of robust wireless cable systems that can vigorously compete in the rapidly expanding video marketplace. The  X_-substantial increase in the number of tendered ITFS applications over the past several yearsz_a X-#Xj\  P6G; XP#э See Notice at 1276.z demonstrates that our policies regarding excess capacity leases have effectively served both goals. The window filing system and the other changes we have adopted today represent  X -further steps that will encourage and allow both ITFS and MDS to reach their full potential.- ya XD -#Xj\  P6G; XP#э Until the effective date of this order, we will continue the present filing restrictions in effect and accept applications for major changes to existing ITFS facilities and applications relying on NTIA funding.-  X -a ADMINISTRATIVE MATTERS ĐTP  X -A.dRegulatory Flexibility Analysis  X-dS84. The Commission's Final Regulatory Flexibility Analysis for this Report and  Xy-Order is set forth in Appendix A.  XK-B.dOrdering Clause  X-dT85. IT IS ORDERED that this Report and Order IS ADOPTED. dU86. IT IS FURTHER ORDERED that, pursuant to authority contained in Sections 4(i) and 303 of the Communications Act of 1934, as amended, 47 C.F.R.  74 IS AMENDED  X-as set forth in Appendix B. The change to the rules adopted in this Report and Order will  X-become effective thirty (30) days from the date of publication in the Federal Register.a XW-#Xj\  P6G; XP#э The staff is also directed to revise appropriately FCC Form 330 to effectuate the  X@ -modifications approved in this Report and Order. "|$0*((" dV87. IT IS FURTHER ORDERED that MM Docket No. 9324 IS TERMINATED. d    ,FEDERAL COMMUNICATIONS COMMISSION d    ,William F. Caton d    ,Secretary vI "_%0*(('"  vI   X-) APPENDIX B ă  X-A Rules ă Part 74 of Title 47 of the Code of Federal Regulations is amended to read as follows: PART 74 EXPERIMENTAL, AUXILIARY, AND SPECIAL BROADCAST DISTRIBUTION SERVICES d1. The Authority Citation for Part 74 continues to read as follows: dAUTHORITY: Secs. 4, 303, 48 Stat. 1066, as amended, 1082, as amended; 47 U.S.C. 154, 303, unless otherwise noted. Interpret or apply secs. 301, 303, 307, 48 Stat. 1081, 1082, as amended, 1083, as amended; 47 U.S.C. 301, 303, 307. d2. Section 74.902 is amended by revising paragraph (d) to read as follows:  74.902 Frequency assignments d* * * d(d) A licensee is limited to the assignment of no more than four channels for use in a single area of operation, all of which should be selected from the same Group listed in paragraph (a) of this section. An area of operation is defined as the area 20 miles or less from the ITFS transmitter. * * * d3. Section 74.903 is amended by adding a new paragraph (a)(5), by adding a final sentence to paragraph (e), and by adding a new paragraph (f) to read as follows:  74.903 Interference d(a) * * * d(5) No receive site more than 35 miles from the transmitter shall be entitled to interference protection. * * * d(e) * * * Such protection shall be applied solely with regard to applications filed subsequent to the request for a protected service area. "#'&0*((%"Ԍd(f) With respect to protected service area proposals, two applications will be regarded as mutually exclusive if they are: (1) submitted during the same filing window; (2) otherwise grantable; and (3) mutually exclusive only because either or both applicants request a protected service area. However, if an applicant in such a situation shows that the resulting interference would occur solely over water, the applications will not be considered to be mutually exclusive. d4. Section 74.910 is amended to read as follows:  74.910 Part 73 application requirements pertaining to ITFS stations. dThe following rules are applicable to ITFS stations. d**** d[The following text is deleted] 73.3564 (a), (b) Acceptance of applications. d**** d[The following text is added] 73.3597(c)(2) Procedures on transfer and assignment applications. d5. Section 74.911 is revised by amending paragraph (a)(1), and by revising paragraph (c) in its entirety, to read as follows:  74.911 Processing of ITFS station applications d(a) * * * d(1) In the first group are applications for new stations or major changes in the facilities of authorized stations. These applications are subject to the provisions of paragraph (c) of this section. A major change for an ITFS station will be any proposal to add new channels, change from one channel (or channel group) to another, change polarization, increase the EIRP in any direction by more than 1.5dB, increase the transmitting antenna height by 25 feet or more, or relocate a facility's transmitter site by 10 miles or more. However, the Commission may, within 15 days after the acceptance of an application, or 15 days after the acceptance of any other application for modification of facilities, advise the applicant that such application is considered to be one for a major change, and subject to the provisions of paragraph (c) of this section. * * * "#''0*((%"Ԍd(c) New and major change applications for ITFS stations will be accepted only on dates specified by the Commission. Filing periods will be designated by the Commission in a Public Notice, to be released not fewer than 60 days before the commencement of the filing period. Qualified parties will have no fewer than 5 business days within which to submit their applications. After termination of the filing period, the Commission shall release a Public Notice with a list of applications filed in the window and provide no fewer than 30 days for the submission of petitions to deny. Uncontested applications that are not mutually exclusive with any other application or licensed facility, and are found to be acceptable, shall be granted. Mutually exclusive applications shall be evaluated pursuant to the comparative selection process set forth in  74.913 of this part, as herein amended. d(1) The requirements of this section apply to a wireless cable entity requesting to be licensed on ITFS frequency pursuant to Section 74.990. The application of such a wireless cable entity shall be included in the Public Notice released after the termination of the filing period. d6. Section 74.913 is amended by replacing the first sentence of paragraph (d)(1), and adding a new paragraph (d)(5), to read as follows:  74.913 Selection procedure for mutually exclusive applications d* * * d(d) * * * d(1) Enrollment will be considered as of the last date of the filing window during which the applications were filed, as provided by  74.911(c) of this part. * * * d* * * d(5) A receive site not receiving interference protection may not be utilized by an applicant for tiebreaking purposes. d7. Section 74.932 is amended by adding a new subsection (e), to read as follows:  74.932 Eligibility and licensing requirements d* * * d(e) No receive site more than 35 miles from the transmitter site shall be used to establish basic eligibility. "#'(0*((%"Ԍd8. Section 74.991 is amended to revise the final two sentences of paragraph (a) to read as follows:  74.991 Wireless cable application procedures d(a) * * * A wireless cable application for available instructional television fixed service channels will be subject to  21.914 of this chapter with respect to other wireless cable applicants, and to the ITFS window filing period with respect to instructional television fixed service applications. All lists of accepted applications for ITFS frequencies, regardless of the nature of the applicant, will be published as ITFS public notices. vI