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A. 1. a.(1)(a) i) a)T,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP##u\4 PXP#     X` hp x (#%'0*,.8135@8:<     #:}D4P XP# ,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP##:}D4PXP#para numnumbered indented paragraphs'Style 14Swiss 8 Pt Without Margins$$D Co> PfQ  )a [ PfQO 2blMStyle 12Dutch Italics 11.5$$F )^ `> XifQ  )a [ PfQO Style 11Initial Codes for Advanced IIJ )a [ PfQK  dddn  #  [ X` hp x (#%'b, oT9 ! )^ `> XifQ ` Advanced Legal WordPerfect II Learning Guide   x )^ `> XifQ Advanced Legal WordPerfect II Learning Guide   j-n )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  jBX )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 Style 3oDutch Roman 11.5 with Margins/Tabs )a [ PfQO  ddn  # c0*b, oT9 !Style 4 PSwiss 8 Point with MarginsDq Co> PfQ  dddd  #  2c" | #!!Style 1.5Dutch Roman 11.5 Font4h )a [ PfQO  dddn Style 2Dutch Italic 11.5$ )^ `> XifQ Style 5Dutch Bold 18 Point$RH$L T~> pfQ_  )a [ PfQO Style 7Swiss 11.5$$V )ao> PfQ ]  )a [ PfQO 2,"5# K<( K*Style 6Dutch Roman 14 Point$$N w [ PfQ   )a [ PfQO Style 10oInitial Codes for Advanced U )a [ PfQK  dddn  ##  [[ b, oT9 !b, oT9 !n )^ `> XifQ ` Advanced Legal WordPerfect Learning Guide   f )^ `> XifQ Advanced Legal WordPerfect Learning Guide   Q" )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  QN~ )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 "i~'^0?]SS999S]+9+/SSSSSSSSSS99]]]Snnnxnnx?Sngxxgxn]gxnngg9/9]S9SSISI9S]//S/]SSS??/]InSI?9%9]9+]]999+999999S9S/nSnSnSnSnSxnInInInInI?/?/?/?/x]xSxSxSxSx]x]x]x]gInSxSxSxSgIxSgSnSnSnSnInIn]nIx{nInInInIxSxSxSx]xS]]?/?S?9?S]]]nSg/gWg9g?g/x]ux]x]xSxSxn?n?n?]?]?]?]]gZg/g]x]x]x]x]x]x]ng]g?g?g?xSg9x]]?g9gS{+SS8/8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddN>>\g0>03\\\\\\\\\\>>ggg\yyyyyF\yrrygryyrr>3>g\>\\Q\Q>\g33\3g\\\FF3gQy\QF>(>g>0gg>>>0>>>>>>\>\3y\y\y\y\y\yQyQyQyQyQF3F3F3F3g\\\\ggggrQy\\\\rQ\r\y\y\y\yQyQygyQyQyQyQyQ\\\g\ggF3F\F>F\gggy\r3r_r>rFr3ggg\\yFyFyFgFgFgFggrcr3rgggggggyrgrFrFrF\r>ggFr>r\0\\=3=WddddddddddddddddddddddddddddddddddddddddNBnnB\\F\\\\\\07\7>\7>>\\\??n\\pBnnBigg>\\7"yyyy\nyc\gnn\24 K-mO/v13"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddWashington, D.C. 20554 ă In the Matter of:) )  S-Satellite Delivery of Network Signals)hXppCS Docket No. 98201(#p  S-to Unserved Households for )hXppXRM No. 9335(#  Sh-Purposes of the Satellite Home)hXppXRM No. 9345(# Viewer Act) ) Part 73 Definition and Measurement) of Signals of Grade B Intensity) #&a\  P6G;r&P#у  S -C" REPORT AND ORDER \  S -X` hp x (#%'0*,.8135@8:authority to act in this area. We have also sought to promote competition among multichannel video  d(#programming distributors, to the extent possible under the SHVA, and we have considered the role that  d(#[local broadcasters play in their communities. Increasing competition among MVPDs was not an express  d(#goal of Congress in enacting the SHVA however. Several members of Congress, however, have recently  S - d(#suggested that changes to the statute could help open markets and provide consumers with more choices. z yO- d(#JԍA number of members of Congress have spoken of the importance of competition in relation to the SHVA, and  d(#ispecifically in relation to this rulemaking. Senator Leahy, chief Senate sponsor and floor manager of the SHVA  d(#in 1988, comments in this proceeding that competition is an important goal for the FCC. Leahy Comments at 1;  {O]- d(#see also Pegasus Reply at 6. The Senator's comments are consistent with statements he made during the floor debate  d(#over the 1994 amendments to the SHVA, in which he voiced his goal of increasing "accessibility for viewers,"  {O- d(#,"development of alternative technologies", and creation of "competitive situations." Id. On July 8, 1998, Senator  d(#McCain, Chairman of the Senate Commerce Committee, and Representative Bliley, Chairman of the House  d(#Commerce Committee, wrote the Commission, indicating that the Miami injunction "threatens to undermine the  d(#progress the Congress has made in promoting competition." Letter to William E. Kennard from Senator John  d(#McCain and Representative Tom Bliley (July 8, 1998). On August 7, 1998, Representative Boucher and 22 other  d(#members of Congress stated in a letter to the Commission that the court's preliminary injunction "raises serious  d(#consumer and competitive issues that require immediate review and action by the Commission." Letter to William  {Oi- d(#jE. Kennard from Representative Rick Boucher, et al. (August 7, 1998). Representative Boucher repeated his  d(#v concerns in a January 19, 1999 letter to Chairman Kennard, mentioning the "proconsumer and procompetition intent behind the SHVA." Letter to William E. Kennard from Representative Rick Boucher (January 19, 1999).  d(# Through hundreds of emails, letters, and phone calls, consumers have expressed frustration at being  d(#unable to choose a satellite service that provides broadcast network stations, although it is unclear how many of these consumers do receive terrestrially delivered broadcast signals of Grade B intensity.   S- `6.` ` To give the satellite industry, broadcast industry, and consumers a uniform method for  Sk- d(#>determining the signal strength a household actually receives, the Commission in this Order adopts a  d(#method for measuring Grade B signal strength at individual households. The measurement rule will  S- d(#/become effective upon publication in the Federal Register.N z yO"- d(#ZԍThe expedited effective date for this rule is warranted in light of the permanent injunction scheduled to take  d(#effect on February 28, 1999, which will affect 700,0001,000,000 satellite subscribers. To the extent parties may  {O$- d(#seek the court's permission to use the new measurement methodology promulgated in this Order, as well as the  d(#prediction model endorsed by the Commission, we believe the expedited effective date will facilitate the court's  d(#review of such requests. The Commission has requested permission from the Office of Management and Budget for expedited clearance for the Paperwork Reduction Act.  We expect that this rule will provide the",l(l(,,"  d(#uniformity and certainty needed to eliminate many of the controversies that currently surround compliance  d(#.with the SHVA. We believe, consistent with what commenters on all sides of this issue have requested, that the measurement methodology is practical, reasonably accurate, and relatively inexpensive.  S4- 7. ` ` In this Order the Commission also endorses a computer model to predict whether a  d(#[household is likely to be able to receive a signal of the required strength. Although the Commission does  d(#lnot have the authority to mandate use of this model in connection with the SHVA, we believe our  d(#zrecommendation will give the industries and consumers a means of determining eligibility for satellite d(#delivered network service that minimizes the need for onsite testing. The predictive model is familiar  d(#to the broadcast and satellite industries and is publicly available for use at this time. It should provide  d(#]a degree of dependability and assurance that will alleviate some of the confusion and cost that has contributed to consumer dissatisfaction.  S -   Sj - ~8.` ` This Order, therefore, addresses three major issues. First, we consider whether we can  d(#[and should change the definition of a signal of Grade B intensity. We decline to do so in this proceeding.  d(#Second, we consider and adopt a standardized method for measuring the strength of television signals at  d(#individual locations. Third, we consider endorsing a method for predicting the strength of television  d(#signals at individual locations that could be used in place of actually taking measurements. The prediction  d(#method that we endorse could be used to create an accurate evidentiary presumption of acceptable  S9- d(#television service or lack of service. Importantly, the effect of this Order is not to increase the number  d(#[of unserved households that already exist, nor to reduce the size of local stations' markets by subtracting  d(#viewers who are able to receive their signal. Rather, we have developed measurement and prediction tools that more accurately identify those households that are truly unserved within the meaning of the SHVA.  S;- XA.X` ` The Satellite Home Viewer Act (#`  S- 9.` ` In the SHVA, Congress created a limited exception to the exclusive programming  d(#copyrights enjoyed by television networks and their affiliates because it recognized that some households  So- d(#were unable to receive network station signals directly over the air. oz yO- d(#ԍH.R. Rep. No. 103703, at 5 (1994); S. Rep. No. 103407, at 5 n.2 (1994); H.R. Rep. No. 100187(I), at 1415,  {O-18, 26, reprinted in 1988 U.S.C.C.A.N. 5638 (1988). The exception is a narrow  S<- d(#zcompulsory copyright license that directtohome (DTH) satellite video carriers <"z yO-ԍ More specifically, the license is available to satellite carriers defined as follows:  XThe term "satellite carrier" means an entity that uses the facilities of a satellite or satellite service  licensed by the Federal Communications Commission and operates in the Fixed-Satellite Service  under part 25 of title 47 of the Code of Federal Regulations or the Direct Broadcast Satellite  Service under part 100 of title 47 of the Code of Federal Regulations, to establish and operate a  lchannel of communications for point-to-multipoint distribution of television station signals, and that  owns or leases a capacity or service on a satellite in order to provide such point- to-multipoint  distribution, except to the extent that such entity provides such distribution pursuant to tariff under the Communications Act of 1934, other than for private home viewing.  may use to provide  S - d(#jcertain television network stations    z yO$-ԍUnder 17 U.S.C.  119(d)(2), the term "network station" means:  yOc%-  X (A) a television broadcast station, including any translator station or terrestrial satellite station that  Prebroadcasts all or substantially all of the programming broadcast by a network station, that is  owned or operated by, or affiliated with, one or more of the television networks in the United "& ,l(l( '"  States which offer an interconnected program service on a regular basis for 15 or more hours per week to at least 25 of its affiliated television licensees in 10 or more States; or   yO-  X (B) a noncommercial educational broadcast station (as defined in section 397 of the Communications Act of 1934). Ɛ to subscribers who live in "unserved households."  xz yO@- d(#ZԍThe SHVA also contains a "superstation" compulsory copyright license with no geographic restrictions. 17 U.S.C.  119(a)(1) and (d)(9). The SHVA was"  ,l(l(,,|"  d(#originally adopted in 1988 to cover satellite service via CBand before "direct broadcast satellite" ("DBS")  S- d(#kexisted. ^z {O= - d(#xԍThere were approximately two million CBand units in use in 1988. See Commission's 1990 cable report to  {O - d(#.Congress, Competition, Rate Deregulation and the Commission's Policies Relating to the Provision of Cable  {O -Television Service, 5 FCC Rcd 5016, at  103, n. 148 (1990). Congress amended the SHVA in 1994 when DBS was just reaching the market. After DBS  S- d(#.was introduced in mid1994, it gained 6.5 million subscribers in the first 32 months.N z yO0-ԍSkyTRENDS Annual Report 199798 at 10.N Currently, direct d(#tohome ("DTH") satellite services, which include CBand, DBS, and medium power Kuband services,  S4- d(#have more than nine million subscribers.\4 z {OZ- d(#iԍId. at 16. See also discussion of DTH in Annual Assessment of the Status of Competition in Markets for the  {O$- d(#Delivery of Video Programming, Fifth Annual Report, ("Competition Report") FCC 98335 (Released December 23, 1997) at  6180; and SkyREPORT.Com or http://www.skyreport.com/dth_us.htm. The success of the DBS industry benefits consumers by  d(#providing greater choice among multichannel video programming distributors ("MVPD"). However, as  d(#the number of satellite subscribers has increased, so has the tension that is inherent in the SHVA regarding those who are eligible to receive network programming via satellite and those who are not.  S5- 10. ` ` The term "unserved household," as relevant here, is defined by SHVA as a household that:  AX119(d)(10)(A) cannot receive, through the use of a conventional outdoor rooftop receiving  antenna, an over-the-air signal of grade B intensity (as defined by the Federal  Si -Communications Commission) of a primary network station affiliated with that network.xi z yO- d(#ԍ17 U.S.C.  119(d)(10)(A). A second requirement for a household to be regarded as "unserved," which is not directly relevant here, is that the household:  v MXhas not, within 90 days before the date on which that household subscribes, either initially or on renewal,  v \to receive secondary transmissions by a satellite carrier of a network station affiliated with that network,  v 0subscribed to a cable system that provides the signal of a primary network station affiliated with that network.  119(d)(10)(B).(#   d(#yAs the law currently stands, satellite carriers may not generally deliver broadcast network signals to their  d(#subscribers via satellite. The SHVA is enforced through private actions filed with the federal court  d(#system. In such actions, the satellite carrier has the burden of proving "that its secondary transmission  Sj-of a primary transmission by a network station is for private home viewing to an unserved household."Ejz yO%-ԍ17 U.S.C.  119(a)(5)(D). E "7z,l(l(,,"Ԍ v 0 11. The Satellite Home Viewer Act limits the compulsory copyright license to "unserved"  d(#households, reflecting Congress' intent to protect the role of local broadcasters in providing free, overthe S- d(#air television to American families.z {O- d(#ԍSee H.R. Rep. 100887(I) at 1920; H.R. Rep. 100887(II) at 2628 (1988), reprinted in 1988 U.S.C.C.A.N. 5577. Localism has been a central principle of broadcast policy since the  Sg- d(#Radio Act of 1927. Broadcasters must serve their communities by providing programming (e.g., news,  S5- d(#weather, and public affairs) to meet the needs and interests of those communities.5"z {O-ԍSee Radio Act of 1927,  9, Pub. L. No. 632, (current version at 47 U.S.C.  307(b) (1997). Congress was  d(#concerned that without some copyright protection, the economic viability of those local stations affiliated  S-with national networks might be jeopardized, thus undermining one source of local information.Zz yO# - d(#ԍFor a comprehensive discussion of issues raised by the compulsory copyright licensing process in general and  {O - d(#the Satellite Home Viewer Act in particular, see Report of the Register of Copyrights, "A Review of the Copyright Licensing Regimes Covering Retransmission of Broadcast Signals" (August 1, 1997).  Si-  12.` ` The SHVA has two purposes: (1) to make broadcast network programming via satellite  d(#available to those households beyond the reach of a local affiliate, and (2) to protect the integrity of the  d(#>copyrights that make possible the existing free, overtheair national network/local affiliate broadcast  S- d(#distribution system.Hz yOF-ԍH.R. Rep. No. 100887(II) at 20.H This Order addresses, within the boundaries of the Commission's authority, the conflicts that arise between these dual purposes.  S8 - XB.X` ` Grade B Contours and Signal Intensity (#`  S -   13.` ` The Grade B signal intensity standard, which is the key to the SHVA's definition of  d(#"unserved households" in Section 119(d)(10)(A), is a Commissiondefined measure of the strength of a  Sl- d(#given television station's overtheair signal.\lf z yOr-ԍ17 U.S.C.  119(d)(10)(A); 47 C.F.R.  76.683.\ This standard was developed in the early days of television  S9- d(#as a key component of the Commission's channel allotment protocol.9 z {O- d(#ԍ See Television Broadcast Service, Third Notice of Further Proposed Rule Making, Appendix B, 16 FR 3072,  {O- d(#3080 (April 7, 1951) ("TV Allocations Third Notice"), adopted by Amendment of Section 3.606 of the Commission's  d(#xRules and Regulations, Amendment of the Commission's Rule, Regulations and Engineering Standards Concerning  d(#the Television Broadcast Service, Utilization of Frequencies in the Band 470 to 890 mcs for Television Broadcasting,  {O-Sixth Report and Order, 41 FCC 148, FCC 52-294 (1952) ("TV Allocations Sixth Report and Order").  Generally, if a household receives  d(#.a television signal of Grade B intensity, it should receive an acceptable television picture at least 90% of  S- d(#the time.I^z {O"-ЍSee O'Connor, Robert A., "Understanding Television's Grade A and Grade B Service Contours," IEEE  {O"-Transactions on Broadcasting at 139 (December 1968) ("O'Connor, Understanding Television's Grade A and  {O#-Grade B Service Contours").I More specifically, Grade B represents a field strength that is strong enough, in the absence  d(#\of manmade noise or interference from other stations, to provide a television picture that the median",l(l(,,"  d(#/observer would classify as "acceptable" using a receiving installation (antenna, transmission line, and  S-receiver) typical of outlying or nearfringe areas.z yO5- d(#ԍThe "median observer" is not the "average" observer; rather, it is the observer who provides the middle value  d(#of data when all values of data from all observers are ranked in order. In other words, 50% of the observers  d(#recorded values equal to or higher in value and 50% of the observers recorded values equal to or lower in value than  {O- d(#Kthe median observer. See TV Allocations Third Notice, 16 FR 3072, 3080 and TV Allocations Sixth Report and  {OW- d(#Order, 41 FCC 148. See also NAB Comments Attachment C, Jules Cohen Statement, at 2 and Network Affiliate Associations Comments at 3 and n. 110.  Sg-   14.` ` The Grade B values (which represent the required field strength in dB above one micro d(#jvolt per meter) are defined for each overtheair television channel in Section 73.683 of the Commission's  S-rules:9Dz yO - d(#ԍThere are also Grade A and "city grade" field strength values, which represent stronger signals. Because they  {O - d(#Kare stronger, Grade A contour and city grade service are generally found closer to a station's transmitter. See 47  yOw -C.F.R.  73.683 and 73.685.` XhhCXqGrade AppCity Grade(#p  yO?-` ` X Channels2-6................ q 68 dBupp 74 dBu(#p  yO-` ` X Channels7-13.............. q 71 dBupp 77 dBu(#p  yO-` ` X Channels14-69............ q 74 dBupp 80 dBu(#p9 Channels2-6................ 47 dBu Channels7-13.............. 56 dBu Channels14-69............ 64 dBu  d(#The Grade B values assume that the antenna used to receive the signal has a 6 db gain for channels 213  S - d(#]and an antenna with a 13 db gain for channels 1483., z {O- d(#hԍSee TV Allocations Third Notice, 16 FR at 3080, adopted by TV Allocations Sixth Report and Order. See also NAB Comments, Attachment C, Jules Cohen Statement at 2; Network Affiliate Assn Comments at 3 and n. 110., Section 73.684 contains the Commission's  d(#"traditional" methodology for predicting station service coverage, and Section 73.686 describes a procedure  d(#>for making field strength measurements to determine the likelihood that a signal is available in an area  d(#zor community. Section 73.622(e) describes different values for evaluating field strength in connection with digital television (DTV) service.  Sj-  P15.` ` The Commission developed the Grade B standard in the 1950s and has used it in a variety  S7- d(#of contexts, many of which were not envisioned at the time it was created.N7z yO- d(#,ԍFor example, qualified local noncommercial educational television stations are defined for must carry purposes  d(#as those stations whose Grade B service contour encompasses the cable system's principal headend, as defined in  {O - d(#hSection 73.683(a), as in effect on March 29, 1990 or any successor regulations. 47 U.S.C.  535(l)(2)(B). See also,  d(#;47 U.S.C.  522(11) (defining Grade B contour in connection with cable regulations as computed in accordance with  d(#regulations promulgated by the Commission); 15 C.F.R.  2301.4(b)(3)(ii) (in connection with National  d(#Telecommunications and Information Agency, or NTIA, broadcast applications, source of public telecommunications  d(#Jsignal is distant when beyond the grade B contour of origination facility); 47 C.F.R.  22.657(d)-(g) (in connection  d(#,with distance separation requirements for public mobile operations to reduce interference with television stations at  d(#Kthe grade B contour, which is defined for this purpose as a circle with a 55 mile radius, centered on the protected television station location and along which the median television field strength is 64 dBu).N The primary purpose for"7,l(l(,,"  S- d(#creating the Grade B standard was to estimate the extent of a television station's coverage area.z {Oh- d(#ԍSee Television Broadcast Service, Notice of Further Proposed Rule Making, Appendix A, 14 FR 4483, 4485  {O2-(1949); and Third Notice of Further Proposed Rule Making, Appendix A, 16 FR 3072, 3075 (1951). Grade  d(#B service areas, or contours, are still used for this purpose and predict that the best 50% of locations along  S- d(#the outer edge of a contour should get an acceptable television picture at least 90% of the time. $z yO^- d(#ԍThe "time variability" planning factor used in the Grade B construct may create some confusion. This arises  d(#from the difference between receiving a signal of Grade B intensity (considered a television signal that produces an  d(#Lacceptable picture) and receiving adequate television service. Adequate television service has been defined as  d(#Jreceiving an acceptable television picture 90% of the time. In some cases, for example, 50% of the locations along  {O~ - d(#ia Grade B contour are said to receive a signal of Grade B intensity at least 50% of the time.  In other cases, 50%  {OH - d(#xof the locations along a Grade B contour are said to receive an acceptable television picture 90% of the time. In  d(#fact, there is no real difference, which is explainable in two complementary ways. First, when a particular location  d(#receives a signal of Grade B intensity 50% of the time, it is, in fact, receiving a signal strong enough to provide an  d(#acceptable television picture 90% of the time. Put another way, a signal of Grade B intensity is stronger than what  d(#is required to provide an acceptable picture on an average television receiver. The apparent inconsistency arises from  d(#an adjustment the Commission adopted for the Grade B signal strength values when it originally established them.  d(#For example, on channels 26, a signal strength of 41 dBu is needed for an acceptable picture. In order for this  d(#signal strength to be available 90% of the time, the median or F(50,50) field strength is raised by 6 dBu and set at  d(#47 dBu. Likewise, for channels 713, the median field strength is raised 4 dBu and set at 56 dBu, and for channels  {OR- d(#;1469, the median field strength is raised 5 dBu and set at 64 dBu. See, e.g., O'Connor, "Understanding Television's  yO- d(#<Grade A and Grade B Service Contours," at 139, 141;  TV & Cable Factbook, TV Stations Volume (1998 edition  {O- d(#page A-15); TV Allocations Sixth Report and Order, 41 FCC at 177; see also TV Allocations Third Notice 16 Fed. Reg. 3072 at Appendices A and B. The use  d(#of the Grade B construct for determining whether an individual household is unserved under the SHVA  d(#was not at issue when the standard was created, although it is the primary issue in this rulemaking and  S-related lawsuits.  S- XC.X` ` The PrimeTime 24 Lawsuits (#`  S5- }16. ` ` The most farreaching lawsuit between satellite carriers and broadcasters over the unserved  S- d(#jhouseholds definition is in the United States District Court for the Southern District of Florida.z {O- d(#;ԍ#X\  P6G;QwP#CBS, Inc. et al. v. PrimeTime 24 Joint Venture, Order Affirming in Part and Reversing in Part Magistrate Judge  {Op- d(#Johnson's Report and Recommendations, 9 F.Supp.2d 1333 (S.D. FL., May 13, 1998) ("CBS v. PrimeTime 24,  {O:- d(#.Order"); CBS, Inc. et al. v. PrimeTime 24 Joint Venture, Supplemental Order Granting Plaintiffs' Motion for  {O- d(#<Preliminary Injunction, Case No. 963650CIV (S.D. FL., July 10, 1998) ("CBS v. PrimeTime 24, Supplemental  {O- d(#Order"); CBS, Inc. et al. v. PrimeTime 24 Joint Venture, Findings of Fact and Conclusions of Law, Case No. 96 {O- d(#3650CIVNESBITT (S.D. FL., December 23, 1998) ("CBS v. PrimeTime 24, Final Ruling"); CBS, Inc. et al. v.  {Ob - d(#PrimeTime 24 Joint Venture, Final Judgment and Permanent Injunction, Case No. 963650CIVNESBITT (S.D. FL.,  {O,!-December 30, 1998) ("CBS v. PrimeTime 24, Permanent Injunction").  In that  S- d(#jlitigation, CBS, Inc. et al. v. PrimeTime 24 Joint Venture, the plaintiff television networks (CBS and Fox)  d(#[and several affiliates brought a copyright infringement action against PrimeTime 24, a satellite carrier, for  d(#retransmitting distant network programming to satellite dish owners in violation of the SHVA. The  d(#]plaintiffs alleged that PrimeTime 24 distributed the signals of distant networkaffiliated television  d(#Lbroadcast stations by satellite to subscribers that were not "unserved households" within the meaning of the SHVA. " ,l(l(,,"Ԍ S- 17.` ` Finding that PrimeTime 24 willfully violated the SHVA,Z z {Oh-ԍCBS v. PrimeTime 24, Final Ruling at 34, 37.Z the court issued a preliminary  d(#and, later, a permanent injunction ordering PrimeTime 24 not to deliver CBS or Fox television network  d(#programming to any customer that does not live in an unserved household. The court concluded that "the  d(#?great majority" of PrimeTime 24's subscribers are capable of receiving at least a signal of Grade B  S4- d(#>intensity using a conventional outdoor rooftop antenna.8!4Zz {O.-ԍId. at 28.8 According to the court, PrimeTime 24 has  d(#"simply ignored" the objective Grade B signal standard in signing up "unserved" customers and had failed  S-to meet its statutory burden of proving that its subscribers were eligible for network service via satellite.?"z {OZ -ԍId. at 1314, 19.?  Sh- 18.` ` The court outlined methods for predicting and measuring signal intensity for identifying  S5- d(#unserved households and required PrimeTime 24 to use them.A#5~z {OS-ԍId. at 4850.A Specifically, PrimeTime 24 was enjoined from providing CBS or Fox network programming  Xto any customer within an area shown on LongleyRice propagation maps, created using  LongleyRice Version 1.2.2 in the manner specified by the Federal Communications  Commission ("FCC") in OET Bulletin No. 69, as receiving a signal of at least grade B  intensity of a CBS or Fox primary network station, without first either (i) obtaining the  written consent of the affected station(s) ... or (ii) providing the affected station(s) with  copies of signal intensity tests showing that the household cannot receive an overtheair  signal of grade B intensity as defined by the FCC from any station of the relevant  S7-network.$7z {O- d(#ԍCBS v. PrimeTime 24, Permanent Injunction at 2. See also CBS v. PrimeTime 24, Preliminary Injunction at 23.   d(#/The court ruled that the signal intensity test requires at least 15 days advance notice to each affected  d(#.station and outlined a specific procedure that the tester must follow at each household within a station's  Sk- d(#area, as predicted by the LongleyRice map. %kj z {Ou- d(#<ԍCBS v. PrimeTime 24, Permanent Injunction at 34. The test should be "conducted in accordance with the procedures outlined in the Expert Report of Jules Cohen and the Supplemental Expert Report of Jules Cohen."  The court also imposed the SHVA's "loser pays" regime  d(#on the testing procedure, whereby the loser to a challenge of a subscriber's eligibility pays the costs of  S-the test.]& z {Oi!-ԍCBS v. PrimeTime 24, Permanent Injunction at 4.]  S- 19.` ` The preliminary injunction is scheduled to take effect on February 28, 1999, and the  d(#/permanent injunction is scheduled for April 30, 1999. The preliminary injunction could result in the  d(#termination of network signals to the estimated 700,000 to one million subscribers nationwide who"9 V &,l(l(,,"  S- d(#.subscribed to PrimeTime 24 after the networks filed their lawsuit on March 11, 1997.'z yOh- d(#ԍLetter from William E. Kennard, Chairman, Federal Communications Commission, to Senator John McCain and Representative Tom Bliley, September 4, 1998 (figures based on publicly available information). The permanent  d(#.injunction, which applies to the PrimeTime 24 customers who subscribed before March 11, 1997, could  S- d(#=affect an additional 1.5 million subscribers nationwide.( z {OZ- d(#ԍId. As noted, the court chose the preliminary injunction's March 11, 1997 date because that is when CBS and Fox filed their lawsuit against PrimeTime 24. The total number of PrimeTime 24 subscribers affected could therefore reach 2.2 2.5 million.  S- 20.` ` In a similar lawsuit, a Raleigh, North Carolina, federal district court ruled against  S- d(#?PrimeTime 24 and in favor of a local ABC affiliate.)zz {O - d(#ԍABC, Inc. v. PrimeTime 24, Joint Venture, 17 F.Supp.2d 467 (M.D. N.C., July 16, 1998) ("ABC v. PrimeTime  {O -24, Court Opinion"). The court issued a permanent injunction on  d(#August19, 1998 that applies to all subscribers living within the affiliate's predicted Grade B contour of  Sh- d(#Mthe affiliate's transmitting tower.*hz {O- d(#[ԍABC, Inc. v. PrimeTime 24, Joint Venture, 17 F.Supp.2d 478, 490 (M.D. N.C., Aug. 19, 1998) ("ABC v.  {O-PrimeTime 24, Permanent Injunction"). The court found that the SHVA defines unserved households and Grade B using objective standards, and stated,  XPrimeTime's screening procedures have systematically substituted a subjective inquiry into  the quality of the picture on a potential subscriber's television set for any signal strength  #showing. PrimeTime has ignored or turned a blind eye to the necessity of objective signal  4strength testing and thus willfully or repeatedly provides network programming to  S -subscribers under SHVA.;+ 2 z yO-ԍ1998 WL 544297, *2.;   d(#The court found a "pattern and practice of willful or repeated copyright infringement" and therefore  d(#enjoined transmission within the "locality or region" as is provided for in the enforcement provisions of  d(#the statute. PrimeTime 24 has provided network services to as many as 35,000 households in the ABC  S- d(#affiliate's Raleigh/Durham market., z {Of- d(#ԍABC v. PrimeTime 24, Permanent Injunction, 1998 WL 544297, *2; ABC v. PrimeTime 24, Court Opinion, 1998 WL 544286, *9. At the time of the court's decision, PrimeTime 24 continued to serve  S-more than 9,000 subscribers within the affiliate's Grade B contour.S-z yO -ԍ1998 WL 544297, *2, *6; 1998 WL 544286, *9.S  Sk- p21.` ` Several other lawsuits have been filed by both broadcasters and satellite carriers. In  d(#Amarillo, Texas, an NBC affiliate has sued PrimeTime 24 in federal district court in a case that still awaits  S- d(#judgment..z {OQ%-ԍKannan Communications, Inc. v. Primetime 24 Joint Venture, No. 296CV086 (N.D. Tex.). In Denver, Colorado, EchoStar has filed suit against CBS, Fox, NBC, and ABC on" >.,l(l(,,b"  S- d(#October19, 1998 in federal district court./z {Oh- d(#wԍEchostar Communications Corp. et al. v. CBS, Inc., et al., Civil Action No. 98B2285 (D. Colo. filed October, 1998). EchoStar has asked the court to find that the Commission has  d(#never endorsed a particular model for predicting or measuring Grade B intensity for the purposes of the  d(#SHVA. Echostar wants the court to declare that a viewer's own opinion of the quality of his or her signal  d(#is adequate for determining whether that home is unserved under the SHVA, and asks the court to endorse  d(# a predictive model for identifying served households such that 95% of households receive a Grade B  S- d(#signal 95% of the time with a 50% degree of confidence.0"z {O- d(#ZԍId. EchoStar's 95 / 95 / 50 court request contrasts with the request in its petition before the Commission, in which it asks for a 99 / 99 / 99 model. The networks followed EchoStar's action by  S-countersuing in Miami.1|z {O - d(#JԍCBS Broadcasting, Inc., et al. v. Echostar Communications Corp., et al., Case No. 982651CIVMiddlebrooks (S.D. Fla. filed November, 1998). No decisions have been issued in either EchoStar case.  Sh- XD.X` ` The NRTC and EchoStar Petitions (#`  S-  P22. ` ` In its petition for rulemaking, the NRTC, a distributor of DirecTV DBS service, has asked  d(#]the Commission to adopt, exclusively for purposes of interpreting the SHVA, a new definition of  d(#"unserved" that includes all households located outside a Grade B contour encompassing a geographic area  d(#in which 100 percent of the population receives overtheair coverage by network affiliates 100 percent  d(#jof the time using readily available, affordable receiving equipment. EchoStar, which is a provider of DBS  d(#=service, urges the Commission in its petition to adopt a prediction model to locate unserved households.  d(#[EchoStar endorses a model that predicts an area where 99 percent of households receive a Grade B signal  d(#99 percent of the time with a 99 percent confidence level. EchoStar also urges adoption of a methodology  d(#for measuring signal strength that more closely reflects the signal that a viewer's television set actually  d(#receives. It argues that a number of flaws exist in the current measurement and prediction processes when  d(#they are used for purposes of the SHVA. After receiving comment on these Petitions, the Commission  S-issued the NPRM in this proceeding.  Sk-[II. ANALYSIS ă   S- ~23.` ` The SHVA's concern with adequate television signal intensity at individual households,  S- d(#rather than across broad areas, is central to this rulemaking.82Dz {OH- d(#ԍSee H.R. Rep. 100887(I), at 1 ("The purpose of the proposed legislation is to create an interim statutory license  d(#Kin the Copyright Act for satellite carriers to retransmit television broadcast signals of superstations and network  yO- d(#stations to earth station owners for private home viewing"); 17 U.S.C.  119(d)(1) (definition of distributor refers  d(#,to secondary transmission of network signals to "individual subscribers");  119(d)(8) (definition of subscriber refers  {Oj!- d(#Mto an "individual" who receives satellite service); H.R. Rep. 100887(I), at 56 (1998), reprinted in 1988  d(#U.S.C.C.A.N. 5577 (before the 1988 SHVA, "[v]ery little attention was paid to copyright issues posed by satellite  d(#Ktransmissions directly to individuals for private home viewing . . . it is appropriate for Congress to intercede and delineate this Nation's intellectual property laws").8 This important distinction leads us to  d(#consider measurement and prediction methodologies that have a different purpose from the methodologies  Sl- d(#for determining Grade B service areas.`3lz {O&-ԍSee 47 C.F.R.  73.683, 73.684, and 73.686.` The definition of an unserved household as "a household that"l t3,l(l(,,"  d(#cannot receive ... a signal of Grade B intensity" most logically refers to television signal reception at an  d(#individual household and reflects a concern for individual viewers that is not at issue in most applications  d(#zof the Grade B standard. Moreover, when Congress created the limited compulsory license, it clearly  d(#\intended to help individual consumers who are unable to receive an acceptable, overtheair television  S4- d(#picture.G44z yO- d(#jԍThe Copyright Office describes the intent of the House Subcommittee on Courts, Civil Liberties and the  d(#KAdministration of Justice in drafting the SHVA as "defining an `unserved household' as one that received a signal  d(#at the household (not street) antenna location that was so weak that, assuming receiving equipment of decent quality  d(#and maintenance, the household would not receive an acceptable picture most, if not all, of the time." U.S.Copyright Office Reply at 5.G In a report accompanying the 1994 reauthorization of the SHVA, the House stated that  d(#"households that cannot receive overtheair broadcasts or cable can be supplied with television  S- d(#programming via home satellite dishes."5 xz yO - d(#ԍH.R. Rep. No. 103703, at 5 (1994). Representative Boucher, in a January 19, 1999 letter to Chairman  d(#YKennard, stated that Congress intended to help "the millions of people across the United States who want to receive  d(#network programming but because of terrain and other obstacles cannot receive that programming from local stations." The Senate, in its 1994 report, stated that the restriction on  d(#satellite delivery of network signals refers to "subscribers [who] are unable to receive the signal of a  Sh- d(#particular network."M6h` z yOh-ԍS. Rep. No. 103407, at 5 n.2 (1994).M And when originally adopted in 1988, the House stated, "The distribution of  d(#=network signals is restricted to unserved households; that is, those that are unable to receive an adequate  S-overtheair signal."7 z {O-ԍH.R. Rep. No. 100187(I) at 1415, 18, 26, reprinted in 1988 U.S.C.C.A.N. 5638 (1988).  S - A.` ` The Commission's Role and Responsibility Under the SHVA  S6 - Q24.` ` The NPRM raised issues regarding the scope of the Commission's authority to conduct  d(#kthis rulemaking and involve itself in matters related to the SHVA. The comments reflect a wide range of opinion regarding our authority to act.  Sk- 25.` ` Commenters representing broadcasters, network affiliates, and state or national television  d(#associations argue that SHVA is a copyright statute, not a telecommunications statute and that, as a result,  S- d(#the Commission has no authority to either administer or enforce it.|8 z yO'-ԍNAB Comments at 1011; Network Affiliate Comments at 2; HearstArgyle Comments at 3.| Moreover, they assert, Congress did  S- d(#not delegate to the Commission any authority to rewrite SHVA.i9z yO -ԍWaterman Broadcasting Comments at 6; Media Venture Comments at 3.i Some commenters argue that Congress  d(#intended "unserved household" to be defined using the Commission's Grade B standard that existed at the  d(#time SHVA was adopted in 1988, and that if Congress had intended or wished to create a larger  S9- d(#geographical "white area":9z yO{$-ԍThe term "white area" is generally used to indicate areas that cannot receive adequate signal strength. for satellite providers it could have done so at its own discretion.h;92z yO &-ԍNetwork Affiliate Comments at 6; Walt Disney Co. Comments at 16.h In any  d(#event, many of these commenters point out that the "white area" problem has diminished due to an" ;,l(l(,,b"  S- d(#Lincrease in television stations and improvement in transmitters, receivers, and antennas.^<z yOh-ԍNetwork Affiliate Comments at 11; MSTV Comments at 22.^ Some of these  d(#>commenters also assert that using the SHVA to nurture competition would be irreconcilable with the  d(#jfundamental purpose of the Copyright Act, whose intent is to preserve local broadcast services, and any  Sg-attempt by the Commission to circumvent the legislation would encroach on Congress' prerogatives.=gXz yO_-ԍNAB Comments at 63; MSTV Comments at 5; Entravision Comments at 10; CBS Corp. Comments at 5.  S- T26.` ` The majority of broadcasting commenters disagree with the satellite carriers'  S- d(#characterization of the underlying disputes as a "crisis."R>z yOV -ԍA.H.Belo Comments at 8; NBC Comments at 8.R The conflict over who is unserved is self d(#[inflicted, they argue, because satellite carriers have been exceeding the limits of their compulsory licenses  Sh- d(#since the SHVA became law in 1988.a?hxz yO -ԍNAB Comments at 5661; Network Affiliates Comments at 12.a They state that the Commission should not use this proceeding  S5- d(#as a means to rescue satellite carriers from the consequences of their illegal activities.N@5z yO-ԍMSTV Comments at 4; NBC Comments at 2.N They contend that  d(#the core of satellite network subscribers are not in rural areas, as the Congress envisioned in 1988, but  S- d(#Mincludes households located in more populous areas.]Az yO-ԍNetwork Affiliates Comments at 10; NBC Comments at 8.] Several commenters assert that the number of  d(#=households watching distant network stations via satellite bears no relation to the number of households  Si - d(#that truly cannot receive their local affiliates overtheair.XBi ( z yO1-ԍKKCOTV Comments at 5; Network Affiliates at 10.X Indeed, they argue that most of their  d(#challenges to allegedly served subscribers have proven, through actual signal tests, that the subscribers  S - d(#were receiving signals of Grade B intensity.}C z {O[-ԍSee, e.g., KEYCTV Comments at 3; WWNYTV Comments at 3; KKCOTV Comments at 5.} The NAB asserts that the majority of dish owners who are  d(#served but still sign up for network service do so because they want to watch the same programming at  d(#different times (timeshifting), obtain sports or other programs not broadcast by their local stations, or  Sj-avoid placing an antenna on their roofs.:DjJ z yOT-ԍNAB Comments at 3.:  S- n27.` ` In contrast, commenters representing satellite carriers state that the Commission has broad  d(#authority to address issues surrounding the SHVA and specific authority to address the definition,  d(#measurement, and prediction of signals of Grade B intensity. Most satellite commenters strongly urge the  Sk- d(#Commission to define "signals of Grade B intensity" expressly for SHVA purposes.yEkz yO"-ԍPrimeTime 24 Comments at 7; Superstar/Netlink Comments at 13; SBCA Comments at 5.y They argue that  d(#{agencies have broad discretion to make policy either through rulemaking or adjudication, and if the  d(#Commission can redefine Grade B intensity in general, it certainly has the authority to create a new  S- d(#definition in a SHVAspecific rulemaking.SFjz yO&-ԍEchostar Comments at 4; SBCA Comments at 5.S They maintain that nothing in the statute or the pertinent" F,l(l(,,p"  d(#ylegislative history contradicts this conclusion. The commenters also argue that Congress did not "freeze"  S- d(#=the definition of Grade B signal intensity when it adopted the SHVA in 1988.xGz yO5-ԍSBCA Comments at 5; Pegasus Communications Comments at 9; DirecTV Comments at 7.x Commenters assert that  d(#the SHVA does not incorporate the language of any rule into the statute and refers to Grade B "as defined  d(#yby the Federal Communications Commission," so the law clearly grants the Commission the authority to  S4- d(#define and redefine a signal of Grade B intensity.H4Xz yO,-ԍDirecTV Comments at 8; PrimeTime 24 Comments at 7; Pegasus Communications Comments at 10. Indeed, several satellite commenters point out that  d(#the Commission has never defined an "overtheair signal of Grade B intensity" as received "through the  S- d(#kuse of a conventional outdoor rooftop receiving antenna" and it should adopt such a definition now.iIz yOV -ԍPegasus Communications Comments at 5; PrimeTime 24 Comments at 6.i  d(#They contend that Congress, in Section 119(d)(1) of the SHVA, recognized and deferred to the  d(#Commission's expertise in this area and that it clearly intended the "unserved household" restriction to fall  d(#under the Commission's expertise. In addition, satellite carriers state that Congress has utilized the  d(#Commission's Grade B prediction and measurement standards in the past, so the Commission's authority  d(#zto define Grade B signal intensity must naturally include the ancillary authority to adopt methods for  S - d(#zpredicting and measuring signal intensity.]J xz yO-ԍSuperstar/Netlink Comments at 14; SBCA Comments at 6.] Although the parties agree that a prediction methodology  d(#should not preclude a party from conducting actual tests, they assert that requiring an individual  S6 -measurement at each household is unworkable due to the high cost and time commitment involved.]K6 z yO-ԍSBCA Comments at 9; Primestar Partners Comments at 6.]  S - _28. ` ` Questions concerning the Commission's role and responsibility with respect to this matter  d(#[arise on two levels. Several commenters assert the Commission should elaborate on the objectives of the  d(#SHVA or change its administration to help satellite carriers become more competitive with cable television  d(#systems. These commenters argue that home satellite companies provide the strongest challenge to  d(#[entrenched cable monopolies, but are hindered by their inability to deliver network signals via satellite to  d(#consumers who want them. While increased competition among service providers is an important and  d(#longstanding goal of the Commission, we cannot make it a primary goal of this proceeding. The SHVA  d(#is a copyright law designed to balance owners' and users' rights. It is not a communications law with an  d(#[express purpose of increasing competition among MVPDs. The SHVA is primarily administered by the  d(#Copyright Office and enforced by the federal courts, and contains the basic Congressional decisions  S- d(#[regarding how and to whom satellite distributed network broadcast signals are made available.Lz yO - d(#xԍSenator Leahy states that no subscriber to distant network signals via satellite should be disconnected "if the  d(#customer is unable to receive local TV broadcasts over-the-air." Leahy Comments at 1. The Copyright Office  d(#-describes the intent of the House in drafting the SHVA as "defining an `unserved household' as one that received  d(#a signal at the household (not street) antenna location that was so weak that, assuming receiving equipment of decent  d(#quality and maintenance, the household would not receive an acceptable picture most, if not all, of the time." U.S.Copyright Office Reply at 5." We may  d(#{not change the policy behind the law, nor may we go beyond two terms Congress used in defining  d(#["unserved households." First, Congress explicitly incorporated the Grade B standard into the definition,  d(#so only Congress may consider the use of another measure. Second, the law demands that a consumer"9L,l(l(,,"  d(#be unable to receive a television signal "using a conventional outdoor rooftop antenna" before qualifying  S-as unserved. We may not change that requirement, nor may consumers ignore it. M$z yO5- d(#ZԍCommenters in this proceeding have offered contradictory views on the meaning of "conventional outdoor  {O- d(#rooftop antenna." Congress did not define this term in the SHVA. See Copyright Office Reply at 89; CBS v.  {O- d(#PrimeTime 24, Permanent Injunction, slip op. at 1617 (complying with the SHVA requires a rooftop antenna,  yO-properly oriented and in good working order).   Sg- P29. ` ` In addition, there are questions about the Commission's specific authority to interpret and  d(#amend the Grade B standard, whether for all purposes or only for the SHVA. We continue to believe,  S- d(#as the NPRM preliminarily concluded, that we have the authority to change the definition of a signal of  S- d(#LGrade B intensity as a general matter.8Nz yO# -ԍNPRM at  22.8 Broadcasters concur with our general authority to make changes  d(#for nonSHVA purposes, but argue that such a change would have no effect on the interpretation of the  Si- d(#/SHVA because the definition of Grade B is frozen in time by the language and intent of the SHVA.IOiDz {OM-ԍSee NAB Comments at 2733. I  S6- d(#[Satellite carriers and other commenters disagree.P$6z {O- d(#ԍSee, e.g., DirecTV Comments at 7; SBCA Comments at 5; and Echostar Reply at 2(Had Congress intended a  d(#,term frozen in time it would have picked a dBu number from the thenCommission's rules and frozen it by inclusion  {O>- d(# in the statutory text.). See also Electronics Technicians Association, International, Inc. (ETAI) Comments at 10 and U.S. Copyright Office Reply at 25. The U.S. Copyright Office, for example, reviewed the  d(#legislative history and found nothing to support the conclusion that Congress intended to freeze particular  S-values for Grade B signal intensity in the SHVA.IQ z yO2-ԍU.S. Copyright Office Reply at 5.I  Sj -  30.` ` We conclude that Congress did not freeze the Grade B rules in place when it enacted the  d(#SHVA. Congress gave the Commission a continuing role when it defined "unserved households" as those  S - d(#ythat cannot receive "an overtheair signal of Grade B intensity (as defined by the Commission)."VR R z yO-ԍ17 U.S.C.  119(d)(10)(A) (emphasis added).V When  d(#it incorporated Grade B into the definition of "unserved households," Congress did not incorporate specific  d(#values, such as the dBu levels the Commission uses in Section 73.683. Moreover, nothing in the SHVA  d(#\itself or its legislative history indicates that Congress intended to freeze the value of Grade B when it  d(#[passed the law in 1988 or when it renewed it in 1994. When Congress has chosen to freeze Commission  d(#regulations for other purposes, it has explicitly done so. For example, Congress expressly referenced rules  d(#"in effect on April 15, 1976" when it froze in place regulations relating to copyright compulsory licensing.  d(#\ No such reference exists here. Case law also supports the proposition that the meaning of "signal of  Sm- d(#[Grade B intensity" was not frozen when the SHVA was enacted.Smz {O"-ԍSee Lukhard v. Reed, 481 U.S. 368 (1989); and Helvering v. Wilshire, 308 U.S. 90 (1939). For example, the Supreme Court has  d(#held that "[i]t is of course not true that whenever Congress enacts legislation using a word that has a given  S- d(#administrative interpretation it means to freeze that interpretation in place."OTtz {O&-ԍLukhard v. Reed, 481 U.S. at 379.O The Supreme Court  d(#\reasoned that if legislation so constrained an agency's ability to conduct rulemaking under its enabling"T,l(l(,,R"  d(#legislation, then "the result would be to read into the grant of express administrative powers an implied  d(#zcondition that they were not to be exercised unless, in effect, the Congress had consented. We do not  d(#believe that such impairment of the administrative process is consistent with the statutory scheme which  Sg-the Congress has designed."aUgz {O-ԍHelvering v. Wilshire, 308 U.S. at 101.a  S- }31.` ` Although we conclude that the Commission has the authority to modify Grade B intensity  d(#=values for all purposes, we believe that it is significant that Congress tied the SHVA compulsory license  d(#to the Commission's Grade B standard, which was and is used for a multiplicity of purposes. We think  d(#Congress' use of the widely used Grade B standard in SHVA indicates that we should not adopt a separate  d(#Grade B intensity standard for purposes of SHVA alone. Moreover, additional considerations also lead  d(#us to conclude that it would be inadvisable to adopt a separate Grade B standard for SHVA purposes.  d(#As discussed below, a second set of signal strength values, also called "Grade B signal intensity," is likely  S -to create confusion for the broadcast industry and others affected by Commission regulations.UV Zz {O -ԍSee discussion, infra at  43.U  S6 - B.` ` Defining a Signal of Grade B Intensity (#`  S - n32.` ` The SHVA uses an objective standard to determine whether a household is "unserved" and  d(#Mthus permitted to receive network signal via satellite. SHVA's criterion is whether the household can  d(#receive "through the use of a conventional outdoor rooftop receiving antenna, an over-the-air signal [of  d(#"a particular network station] of grade B intensity (as defined by the Federal Communications  d(#Commission)." By incorporating the objective Grade B signal intensity standard into the SHVA, Congress  d(#{declined to account for viewers' individual subjective opinions about the quality of their television  S- d(#reception, as well as the adequacy of the household's existing antenna.qWz {O*-ԍSee Miami Decision, slip op. at 31 ("strictly objective standard").q Use of the Grade B signal  d(#intensity standard in the SHVA both invites and limits the Commission's involvement with this statute.  d(#The reference to Grade B signal intensity "as defined by the Federal Communications Commission" brings  d(#the Commission's rules and our interpretations of our rules into play. But, by using Grade B signal  d(#intensity to define unserved, the SHVA also limits what the Commission can do to address any drawbacks  d(#to this standard. The Grade B signal intensity values were used in the SHVA as an available objective  d(#benchmark for determining whether a household is "served." While those values may have proven  d(#difficult to apply in practice as the sole standard for determining whether a household is unserved, this  d(#{is the standard in the statute and must be employed here when distinguishing served and unserved households.   Sm-  B 33.` ` The Commission's rules define values for Grade B signal intensity in connection with  S:- d(#authorizing television stations and the stations' service areas or "contours."AX:~z yOX"-ԍ47 C.F.R.  73.683(a).A It was not, however, created  d(#jfor evaluating picture quality in individual households. Rather, the system was developed to address the  d(#very different and difficult problem of creating station service areas and to determine the proper allocation  S- d(#[of television channels in the early days of television. The Commission created two "grades of service."!Yz {OO&- d(#ԍTelevision Broadcast Service, Third Notice of Further Proposed Rule Making ("Third FNPRM"),16 FR 3072,  {O'-3075 (1951), adopted by Television Broadcast Service, Sixth Report and Order, 41 FCC 148 (1952).! "j Y,l(l(,, "  d(#jThe specifications for "Grade A" and "Grade B" service were established so that "a quality acceptable to  d(#the median observer is expected to be available for at least 90 percent of the time at the best 70 percent  d(#of receiver locations at the outer limits of [Grade A] service. In the case of Grade B service the figures  Sg- d(#are 90 percent of the time and 50 percent of the locations."IZgz {O-ԍThird FNPRM, 16 FR at 3075.I The service areas were established to  d(#.effectuate the Commission's stated twofold purpose "to provide television service, as far as possible, to  d(#all people of the United States and to provide a fair, efficient and equitable distribution of television  S- d(#broadcast stations to the several states and communities."2[Zz {O-ԍId. 2 The signal intensity values (also referred to  d(#Las "field strengths") were determined based on certain assumptions, which differ for the Grade A service  d(#area, which is urban and suburban, and the Grade B service area, which is rural. For example, the type  d(#of receiving antenna assumed for Grade A service is smaller than the receiving antenna assumed for Grade  S-B, and the terrain assumed for Grade A differs from that assumed for B.\z {O - d(#ԍId. at 3080. The receiving antenna assumed in the planning factors for Grade A is a simple dipole, while for Grade B it is a directional antenna with 6 dB gain for low and high VHF and 13 dB gain for UHF.   S - !34.` ` The "acceptable quality" contemplated in these early Commission Orders was based on  Si - d(#yquality levels developed by the Television Allocation Study Organization ("TASO").]i Fz {OO- d(#ԍSee Engineering Aspects of Television Allocation, Report of the Television Allocations Study Organization,  d(#ZMarch 16, 1959; and O'Connor, Robert A., "Understanding Television's Grade A and Grade B Service Contours,"  {O- d(#IEEE Transactions on Broadcasting, 139 (December 1968). See also PrimeTime 24 Comments, Hassinger  yO- d(#Declaration and attachments and Miami Decision, slip op. at 15 ("there is a strong correlation between signal  d(#<intensity and picture quality when multiple, neutral observers evaluate picture quality using properly functioning rooftop antennas"). TASO used data  d(#from actual viewers. These viewers were shown television pictures and were asked to rate them on a scale  d(#from 1(excellent) to 6 (unusable). Level 3, on which the Grade B service level was based, was defined  S - d(#as "(Passable) The picture is of acceptable quality. Interference is not objectionable."H^ z {O2-ԍSee O'Connor, supra.H Based on the  d(#results of viewer ratings, a specific signal (or carrier) to noise ratio at the television receiver was found  d(#zto be associated with the grade 3 level that is, a level of signal that the median observer identified as  d(#>acceptable. In association with this level of acceptable quality, and with the primary goal of creating  d(#[service areas with minimal interference and maximum coverage, the Commission developed assumptions,  d(#kgenerally described as planning factors, regarding the environment in which viewing would take place.  d(#Assumptions were made as to the quality of the television receiver used focusing on the amount of  d(#electrical noise created in the tuner, the signal losses that take place in the wire connection from the  d(#/receiver to the antenna, the nature (gain, directionality, and height) of the antenna to be used, and the  d(# amount of electrical noise in the environment that the signal would have to overcome to be viewable.  d(#Because radio signal propagation varies over time, certain statistical assumptions were built into the  d(#definitions used, including the assumption that the signal in question would be of acceptable quality to  Sl-the median observer at least 90 percent of the time.1_lT z {O`%-ԍId.1 "9_,l(l(,,"Ԍ S- "35.` ` Satellite industry and consumer comments`"z {Oh- d(#ԍSee, e.g., Superstar/Netlink Group Comments at 18; PrimeStar Partners at 5; PrimeTime 24 Comments at 10;  d(#hJ.E. Schmidt Comments at 1; Michael W. LaBoone Comments at 1; Elizabeth Hooks Comments at 1; Penny R. Ball  d(#ZComments at 1; Robert J. Mazzeo M.D. Comments at 1; Larry & Gina Wilson Comments at 1; John Tamosaitis Comments at 1; and Dale Miller Comments at 1. argue in this proceeding that the Grade B  d(#signal intensity levels as currently defined are inappropriate to use to determine eligibility for broadcast  d(#network service via satellite because they do not ensure a good television picture. They ask the  d(#Commission to change the Grade B signal intensity values to reflect what they contend are changed  d(#circumstances. The satellite industry asserts that technology, environmental noise, and consumer  d(#yexpectations have changed since Grade B signal strength was first defined and contend that these changed  d(#.expectations justify upward adjustments to the Grade B values. PrimeTime 24 states that Grade B was  d(#based on television pictures received on blackandwhite televisions and the Commission should revise  d(#the definition of Grade B signal intensity to adjust for "today's modern world of VCRs, large screen color  S5-televisions, and heavy television watching."Ga5z yO -ԍPrimeTime 24 Comments at 1013.G   S- n#36.` ` While satellite industry commenters are in agreement that the Grade B signal values should  S - d(#Mbe increased, they disagree on the precise values that should be used.nb Bz {O~-ԍCompare PrimeTime 24 Comments at 1013 with SBCA Comments at 13.n For example, PrimeTime 24's  d(#engineering consultant asserts that the planning factor for the C/N (carrier to noise) ratio should be  d(#increased from 30 dB to 43 dB based on the Commission's 1992 cable television standards. He also adds  d(#a new planning factor to address ambient (environmental) noise and decreases the assumed antenna gain  d(#zfor UHF signals from 13 dB to 9 dB. These revisions produce Grade B values of 67 dBu (low VHF),  S - d(#M72 dBu (high VHF), and 81 dBu (UHF).]c z yO-ԍPrimeTime 24 Comments, Hassinger Declaration at 911.] PrimeTime 24's Hassinger also describes a different set of  d(#revised values for Grade B based on an "empirical approach," which produces a mix of higher and lower  S7- d(#values.;d7d z {O;-ԍId. at 1215.; Hassinger acknowledges that his proposed values do not deal with the problem of  d(#"multipathing" (i.e., ghosting or multiple images due to signal reflection) and acknowledges that the  S- d(#0stronger signal intensity he proposes "may make the effect of multipathing more pronounced."e" z {Og- d(#ԍId. at 16. In ghosting, also known as multipathing, as the signal strength increases, the "noise" in the picture  d(#is reduced. Unfortunately, noise (e.g., electrical noise in the tuner or environment) masks ghosting. Thus, as the  d(#noise is reduced, which is a benefit to picture quality in the absence of multipath problems, the ghosting disturbance becomes more noticeable.  d(#PrimeTime 24 concedes that these increased values would approximate or exceed current Grade A contour  d(#[values, but contends the FCC is not constrained by the existing Grade A values since the Grade B values proposed would be for purposes of the SHVA only.   S- $37.` ` The Satellite Broadcasting Communications Association (SBCA) argues for values of  d(#>70.75 dBu (low VHF), 76.5 dBu (high VHF), and 92.75 dBu (UHF) to better reflect "today's more  Sl- d(#complex signal propagation environment."<flz yO&-ԍSBCA Comments at 13.< SBCA's Consulting Engineers propose changes to certain"lpf,l(l(,,"  d(#of the planning factors that are the basis for the Grade B values to increase the receiver noise figure, the  S-required signal to noise ratio, the receiver antenna gain, and line loss.`gz yO5-ԍSBCA Comments Engineering Statement at 5 and Appendix 2.`  Sg- %38.` ` Satellite industry commenters also contend that the improvements in receivers since the  S4- d(#z1950s do not adequately offset other factors that have made picture quality decline.h"4Xz {O,- d(#ԍPrimeTime 24 Reply at 12, n. 9. See also SBCA Comments at 13; NRTC Comments at 18 (To ask viewers  d(#used to high quality distant network satellite service to return to analog, overtheair local pictures deemed  d(#"acceptable" pursuant to some 1950s standard is completely inappropriate as well as counterproductive to the development of a vibrant, competitive MVPD market). PrimeTime 24  d(#asserts that the appropriate standard for DTV allotments or Grade B contours is irrelevant and that what  d(#matters is the appropriate signal strength to assure "that an individual household receives an acceptable  S-quality picture."AiBz yO} -ԍPrimeTime 24 Reply at 13.A  S5- A&39. ` ` Broadcast industry commenters argue that even if the Commission had authority to revise  d(#zthe definition of Grade B as it is used in the SHVA, the Grade B values should be lowered rather than  d(#raised. They assert that television receivers and antennas have improved since the 1950s and now give  S - d(#viewers better picture quality at the Grade B signal level than they had when Grade B was adopted.j z {O-ԍSee, e.g., Fox Broadcasting Co. Comments at 45; Network Affiliate Associations Comments at 42.  d(#The broadcast industry also asserts that the definition of Grade B has been repeatedly reevaluated over  S6 - d(#jthe past 40 years and reaffirmed on each occasion.k6 d z {O:- d(#Yԍ See, e.g., Network Affiliate Associations Reply at 7 and n. 13 citing Television and FM Field Strength Curves,  {O- d(#Report and Order, FCC 75636, 34 Rad.Reg. 2d (P&F) 361 (1975) (Every time the Commission or staff consider  d(#revising the Grade B values, they conclude no revision is warranted, and in 1975, the proposal was to lower not  d(#Jraise Grade B field strength values because equipment refinements justified a reduction in estimated receiver noise,  d(#;an increase in antenna gain, and reduction for transmission line loss.); Association for Maximum Service Television  d(#hComments at 6, 1720 (The FCC has reexamined the premises and technical rationale for the Grade B standard over  d(#the years and on every occasion has determined that the standard should be retained. The long history and careful  d(#;evaluation and reevaluation of the Grade B standard must not be jettisoned through an expedited rulemaking.); NAB  {O~- d(#Comments at 35; and Affiliates Association Comments at 27. See also Staff Report, Comparability For UHF  {OH- d(#,Television: A Preliminary Analysis, 180-83 (Sept. 1979) and Final Staff Report, Comparability for UHF Television, 246 (Sept. 1980) and NAB Reply at 9. NAB's consulting engineer, Jules Cohen states that  d(#over the forty years since the Grade B values were established, viewers may have become more  d(#sophisticated and their definition of an "acceptable" picture may have changed. He contends, however,  S - d(#jthat improvements in receivers have improved the C/N ratio at the same signal strength.l z yO "- d(#ԍJules Cohen Engineering Statement on Behalf of Maximum Service Television, Inc. Comments ("Cohen MSTV  {O"-Statement") at  8. Contra, PrimeTime 24 Reply at 12. He also notes  d(#the conclusion of the Advisory Committee on an Advanced Television Service in 1994 that Grade B as  S7- d(#defined in 47 C.F.R.  73.683 is still the logical signal strength level for acceptable picture quality.Um7&z {O%-ԍCohen MSTV Statement, supra, at  9.U  d(#Broadcasters also state that increasing the Grade B values will seriously undermine the viability of local"m,l(l(,,"  S- d(#television stations by reducing the size of their markets, which will decrease advertising revenue.nz {Oh- d(#xԍSee, e.g., MSTV Comments at 5, 15, 24; Entravision Holdings LLC Comments at 2, 9; The Post Company (KIFITV) at 7;Withers Broadcasting Companies Comments at 4; ABC, CBS, NBC & Fox Joint Comments at 78.  S- d(#Decreased advertising revenue threatens their survival, which, they contend, threatens localism. Echostar  S-responds that none of the broadcasters have quantified their alleged loss of advertising revenue.=o"z yO\-ԍEchostar Reply at 12.=  S4- a'40.` ` Discussion. The comments submitted by the satellite industry and consumers urge  d(#vigorously that for many people the existing Grade B signal intensity values do not equate to truly  d(#acceptable picture quality. The first attack on the existing standards has to do with the possibility that  d(#Lviewers' expectations as to signal quality have increased over time. If this were the case a stronger signal  d(#jwould be needed to produce a picture that would now be regarded as acceptable. Although there is some  d(#.speculation in the comments that viewer expectations have indeed changed, no current study documents  d(#this or replicates the initial TASO study that correlated viewer judgments of television picture quality with  S- d(#specific signal levels.p|z yO"- d(#<ԍPrimeTime 24's consulting engineer, William Hassinger, points to two viewer studies, one by Neil Smith in  {O- d(#1971 and another conducted in Charlotte in 1996. See PrimeTime 24 Comments, Declaration of William Hassinger,  {O- d(#Neil Smith Study, and ex parte presentation of January 14, 1999. Neither study was conducted in accordance with  d(#the accepted standard for viewer studies, ITU Recommendation 5004, "Method for the Subjective Assessment of  d(#;the Quality of Television Pictures." Neil Smith acknowledged that his sample was too small to be sufficient for any  d(#generalizations. Neil Smith Study at 1819. The Charlotte study did not use study subjects from the general public and viewing conditions were not appropriate for a scientific study. In response to contentions that the current values for Grade B signal intensity  d(#are erroneous because they were based on viewer evaluations of monochrome images, we note that the  d(#planning factors established in April 1952 (Doc. 8736) were revisited in 1959 by TASO, which was  d(#established in response to a Commission request to study the technical principles which should be applied  d(#in television channel allocations. TASO studied these issues for two years, used 21 inch monochrome and  S - d(#ycolor television sets, and essentially confirmed the same carrier to noise ratio as was established earlier.|q z {Og-ԍSee Engineering Aspects of Television Allocation, March 16, 1959, supra.|  d(#Research on subjective evaluations of television pictures may show that viewers have raised their level  d(#of expected performance, but the results of any subjective testing is dependent on the testing methodology  d(#Kand conditions. Many of these recent tests were conducted by cable television sponsors using viewers who  S-may have expected to pay for these better pictures.xrX z yO-- d(#ԍRecommendation 5004, "Methods for Subjective Assessment of Picture Quality of Television Pictures,"  d(#Recommendations and Reports of the CCIR, Vol. XI, Part 1, Dubrovnik, 1986 and Subjective Assessment of Cable Impairments on television Picture Quality, Bronwen Lindsay Jones, 1992 NCTA Technical Papers. x   S-  (41. ` ` In addition to suggesting that viewer expectations are different, it is also argued that radio  d(#frequency noise in outlying areas has increased so that rural areas are today more akin to urban areas of  d(#the 1950's, that the typical household now has multiple television receivers necessitating antenna lead  d(#splitters that increase line loss, and that antenna gain figures (particularly in the UHF frequencies) should  S- d(#Lbe reevaluated.sz {O&- d(#ԍSee PrimeTime 24 Comments, Declaration of William Hassinger at 911; and SBCA Comments, Engineering Statement of Hatfield & Dawson at 3. We believe that the technology of receivers and antennas has kept pace with changing"s,l(l(,,%"  S- d(#consumer expectations and with increased noise.tz {Oh- d(#;ԍSee, e.g., Comparability for UHF Television: Final Staff Report (1980), at 228 (UHF noise figure significantly reduced and further improved by Commission requirements). Thus, it is necessary to consider the totality of changes  d(#Lthat have taken place over the past fifty years. In the 1950s low cost electronic technology at television  d(#Mfrequencies was hard to find. Therefore, the planning factors had to be set low enough to ensure that  d(#television sets could be affordable by the public. The noise figure used in the planning factors serves as  d(#a good example. The noise figure is a measure of the amount of electronic noise produced by the  d(#components in the television. This must be added to the signal budget just like man-made noise and must  d(#be overcome to produce a passable picture. In the 1950s, the television tuner technology consisted of  d(#.low cost noisy tubes and attached components. Today, this technology has progressed to modern solid  d(#state components that produce lower set noise. Thus, although many developments have taken place since the standards were first adopted, it is not clear that increases in the values involved are warranted.  S- )42.` ` We conclude that the record in this proceeding provides an inadequate basis for changing  d(#.the Grade B signal intensity values either generally or for purposes of the SHVA specifically. First, the  d(#evidence in the record suggests that some of the environmental and technical changes that have taken place  d(#ltrend in opposite directions and tend to cancel each other out. The Commission has examined the  d(#adequacy of the Grade B standard on several occasions since it was adopted in the 1950s, and in each case  d(#has decided not to make changes. In 1975, the Commission considered revisions to the Grade B contour,  S - d(#including a study of actual viewers' ratings.XuZ "z {O_- d(#.ԍAmendment of Sections 73.333 and 73.699, Field Strength Curves for FM and TV Broadcast Stations;  {M)- d(#Amendment of Part 73 of the Rules Regarding Field Strength Measurements for FM and TV Broadcast Stations ("1975 Field Strength Order"), 53 FCC 2d 855 (1975).X That study concluded that there was some evidence  d(#supporting minor changes in the Grade B values, but endorsed the Commission's existing standards as  S7- d(#providing "a realistic picture of station coverage."~v7Dz {O-ԍId. and PrimeTime 24 Comments, Hassinger Declaration, Neil M. Smith Study at 23.~ The Commission concluded in that proceeding to  d(#revise the contour for UHF channels and to adopt a "terrain roughness factor," but declined to make other  d(#>revisions because there was "no urgent need, from an engineering standpoint, to redefine the Grade B  S- d(#contour."wz yO- d(#=ԍ53 FCC 2d. at  49. But note that even these changes were stayed and never made effective. 47 C.F.R. 73.684(k) and (l) "are stayed indefinitely." 42 FR 25736 (1977). In that Order, the Commission emphasized the dislocation that would be imposed on  Sl- d(#broadcasters by changing the Grade B contour.ixl. z {O:-ԍ1975 Field Strength Order, 53 FCC 2d at  21 and 49.i Again, in 1980, Commission staff noted progress in  d(#Lobtaining good UHF weak signal performance under the existing rules and recommended against reducing  S- d(#the standards for maximum UHF noise figure.Hy z {Of!-ԍ UHF Comparability at 228.H More recently, in the DTV Allotment proceeding, the  d(#Commission reconfirmed the usefulness of the Grade B values for the purpose for which they were  S- d(#joriginally created: defining service areas.zZR z {O$- d(#ԍSee DTV Sixth Report and Order, 12 FCC Rcd 14588, 14607 and 14676; and 47 C.F.R  73.622(e) (DTV  d(#<service areas; field strength evaluated using LongleyRice pointtopoint propagation model) and  73.622(f)(1) (reference to Grade B contour, as defined in  73.683, for corresponding analog TV station coverage). The record in this rulemaking does not warrant a change from this recent decision."mtz,l(l(,,"Ԍ S-  ԙ*43.` ` Second, we do not believe that we have the authority to create a special Grade B solely  d(#for the purpose of the SHVA, nor do we believe this is an advisable approach to take. Establishing  d(# another set of values, also called Grade B, is likely to create confusion for the broadcast industry. It  d(#zwould risk harm to the network/affiliate relationship by creating an implication that another, different  d(#Grade B definition might be more suitable for other situations that are not contemplated in this proceeding.  d(#=In addition, raising the values for Grade B such that they would equal or exceed the Grade A values may  S- d(#require reevaluation of the Grade A values, as well.{z yO6- d(#ԍIt is possible that environmental and technology changes, as well as altered viewer expectations, warrant change  d(#in the Grade B values to keep pace with the standard of acceptability established in the 1950s but do not require  d(#;change to Grade A values where, perhaps, environmental changes are not so great. Nevertheless, when Grade A and  d(#Grade B are used for their original purpose of creating contours, the Grade B contour must not meet or overlap the  d(#<Grade A contour. Thus, we agree with commenters who say our ability to change the Grade B values is naturally constrained by the Grade A values. The significant and widespread ramifications of  d(#changing these definitions demand that we have a more complete and conclusive record, and more time  Sh-to evaluate the record, than we have in this rulemaking.|h@z {OH- d(#ԍSee, e.g., NAB Comments at 26 ("massive ripple effects throughout the Commission's entire regulatory scheme.").  S- +44.` ` Finally, some commenters raise concerns regarding the ability of the existing standard to  d(#address interference and other signal impairments. Although we are not changing the Grade B values, it  d(#is important to note that as a matter of general policy we agree that the Grade B standard incorporated  d(#yby Congress into the SHVA implicitly includes within the definition a signal that is, in fact, viewable and  d(#not one so impaired by interference as to be degraded below the "acceptable to the median" observer level.  d(#While such problems can be identified by qualified engineering personnel through actual observations, this  S - d(#yis not a matter, as satellite commenters in this proceeding acknowledge,S}Z z {O - d(#ԍSee, e.g., PrimeTime 24 Supplemental Comments, Declaration of William Hassinger, at 2 and 16 (desirable  d(#,to include interference and other picture impairment factors in the Grade B standard but casebycase analysis is the only substantive way to address this).S that can be resolved by simply  d(#adjusting the dBu levels involved. No readily usable mechanism for addressing this matter through changed definitions has been identified in the comments.  S- XC.X` ` Measuring Television Signal Intensity at Individual LocationsxxX (#x  S- &,45. ` ` For the SHVA to function more effectively, a relatively low cost, accurate, and  d(#reproducible methodology for measuring the presence of a Grade B intensity signal at an individual  d(#Lhousehold is especially important. Individual testing is the key mechanism under the SHVA for proving  d(#that a specific household is unserved and, therefore, eligible to receive satellite delivery of network  S- d(#=affiliated television stations.~ z {O."- d(#ԍSee CBS v. PrimeTime 24, Final Ruling at 4849 ("the ultimate test for eligibility of any particular household is through an actual signal intensity test"). The Commission already has a method for measuring signal intensity for  d(#>describing a station's service area or for propagation analysis, but it has not yet devised a method for"~,l(l(,,"  S- d(#measuring signal intensity at a discrete location, such as an individual household.B$z {Oh- d(#ԍ47 C.F.R.  73.686(b) ("Collection of field strength data for propagation analysis"); 73.686(c) ("Collection  {O2- d(#of field strength data to determine television service in specific communities"). Propagation analysis generally  d(# involves determination of the strength of a signal over specified paths or areas. Propagation models may incorporate the effects of terrain elevations along the path and other inherent physical characteristics of the environment.B We believe that the method we identify herein balances accuracy, affordability, and simplicity.  Sg- -46.` ` Many commenters have explicitly asked us to adopt a measurement methodology."gz {O- d(#ԍSee, e.g., Pegasus Comments at 1112; U.S. Copyright Office Reply at 2, 57; PrimeTime 24 Comments at  d(#5; NAB Comments at 43; SBCA Comments at 910; EchoStar Comments at 10; Network Affiliates Comments at  d(#,65; DirecTV Comments at 27; NRTC Comments at 1516, 20; SNG Comments at 20; SBCA Reply at 22; and NAB Reply at 36.  d(#Satellite carriers contend that requiring an individual measurement at each household in every case is  d(#unworkable due to the high cost and time commitment. Some satellite commenters contend that the FCC's  d(#.current method of conducting field strength measurements is inappropriate for SHVA purposes because  d(#zmany homes do not have 30foot antennas, individual antennas are generally not oriented towards the  d(#station's broadcast tower because many do not have rotors, it does not take into account the number of  d(#splitters used in a household for multiple television sets, and the use of the 100foot mobile run is flawed.  d(#Primetime 24 maintains that any measurements must be made as close to the house as possible, should  d(#[define how signal strength variability is taken into account and, if the homeowner is cooperative, specify  S - d(#[that the home's antenna be used for the test to obtain the most realistic result.D z yO-ԍPrimeTime 24 Comments at 28.D PrimeStar points to the  Si -simplified measurement techniques set forth in the Hatfield & Dawson Engineering Statement.Ii . z yO7-ԍPrimeStar Partners Comments at 9.I  S - .47.` ` Broadcasting commenters assert that only an actual site test can settle the legal eligibility  d(#yof an individual household. The majority of them agree that any prescribed testing methodology must be  d(#consistent with the Act, that measurements should be taken using standardized equipment, that the  d(#zreceiving antenna should be oriented toward the signal being received, and that splitters, which deliver  d(#ya signal from one antenna to more than one television set, should not be considered during measurements.  d(#The major network affiliates suggest that the Commission adopt the measurement methodology used in  d(#1an agreement they brokered with PrimeStar Partners, Netlink USA, and Telluride Cablevision  S-("PrimeStar/Netlink Agreement"). z {O- d(#ԍNetwork Affiliate Associations Comment at 73 and Reply, Exhibit B, Settlement and Compliance Agreement  d(#Between ABC, Inc., CBS Broadcasting, Inc., Fox Broadcasting Company, National Broadcasting Company, and  d(#Certain ABC, CBS, Fox, and NBC Network Stations; the National Association of Broadcasters; the ABC Television  d(#Affiliates Association, the CBS Television Network Affiliates Association, the Fox Television Affiliates Association,  d(#and the NBC Television Affiliates Association AND Primestar Partners, L.P., Netlink USA, and Telluride Cablevision, Inc., Schedule 7.  S8-  /48.` ` Inadequacy of the Current Grade B Measurement Methodology. The Commission's  d(#current signal measurement method, requiring a socalled 100foot mobile run, is inadequate for the  d(#Npurposes of the SHVA. The method typically involves a truck with a 30foot antenna that takes"8,l(l(,,%"  S- d(#continuous measurements as it travels a distance of 100 feet.Dz yOh-ԍ47 C.F.R.  73.686(b)(2).D Under Commission rules, the antenna  d(#must be rotated to the best receiving position, and engineers must record factors that might affect signal  d(#intensity, such as topography, height and type of vegetation, buildings, obstacles, and weather conditions.  d(#If overhead obstacles prevent a 100foot run, a cluster of five measurements may be taken at locations  d(#kwithin 200 feet of each other. Testing can cost several hundred dollars each time it is performed an  d(#Mexpensive proposition for a satellite company or a consumer who wants to prove that a household is  S- d(#unserved by overtheair signals.KZXz {O- d(#ԍSee, e.g., EchoStar Communications Corp., et al, v. CBS Broadcasting, Inc., et al, Plaintiff's Original  d(#Complaint and Request for Declaratory Judgment, Civil Action No. 98B2285 (D. Colo.) (October 19, 1998) (testing averages $150 per household).K When multiplied over hundreds of households in a station's service  d(#.area, the cost may become prohibitive and may preclude many truly unserved consumers from receiving  d(#Lbroadcast network service. Mitigating the costs of the procedure, without sacrificing the integrity of the testing results, is an important goal of the new signal measurement methodology.  S- 4049.` ` In addition to the difficulties inherent in the existing measurement test, many of its  d(#assumptions do not hold in individual Grade B situations. The purpose of the procedure currently  d(#zspecified in the rules is not to determine the receivability of a signal at a single spot, but to determine,  d(# through measurements at a series of grid intersections over a community, the nature of service to the  S - d(#\community.g 8 zz yO- d(#ZԍThe Miami court ruled that the signal strength test should be "conducted in accordance with the procedures  d(#outlined in the DECLARATION OF JULES COHENDeclaration of Jules Cohen, filed on March 11, 1997." Mr. Cohen states in his Declaration that the  {O- d(#<procedure "was based on that prescribed by the FCC in 47 C.F.R.  73.686." Declaration of Jules Cohen in CBS,  {Ow- d(#et al., v. PrimeTime 24 Joint Venture, CIVNesbitt No. 963650 at 8 (executed on March 8, 1998). Mr. Cohen  d(#describes the measuring procedure in the following terms. At an accessible road closest to a household, a 100foot  d(#[mobile run is made with a conventional rooftop antenna elevated to 30 feet. During the run, a station's field  d(#<intensity is recorded and the data is stored in a computer. Analysis of the data, made with the aid of a computer  d(#iprogram, permits the extraction of the maximum, minimum, and median field intensity found, together with the  d(#standard deviation. Median field intensity minus standard deviation is a measure of the least signal intensity likely to be found at the specific location of the household.  v In contrast, EchoStar has proposed a signal strength test, in a lawsuit filed in October 1998, that focuses  {O- d(#more directly on a single point at a household.  EchoStar Communications Corp., et al, v. CBS Broadcasting, Inc.,  {O- d(#et al, Plaintiff's Original Complaint and Request for Declaratory Judgment, Civil Action No. 98B2285 (D. Colo.)  d(#Y(October 19, 1998). Its procedure involves placement of a conventional outdoor rooftop antenna within three feet  d(#of the home and raised to the height of the roof. The antenna is oriented to maximize signal strength for the one  d(#local station that the consumer watches most often. A length of standard household cable is attached to the antenna,  d(#and a number of splitters are attached to duplicate the number of splitters the consumer uses to service multiple  d(#televisions. A signal measurement is then conducted. If the signal strength is not stable, the antenna is relocated  d(#and the same procedure utilized until a stable signal strength is achieved. Readings are taken approximately every  d(#thirty seconds for a period of five minutes. If any of the signal strength readings register less than the Grade B  d(#signal strength threshold as established by Congress and the FCC, the consumer will be deemed an "unserved household" eligible to receive distant network signals.g Thus, the current procedure has limited use in measuring signal intensity at individual  d(#locations. For example, many homes do not have antennas 30 feet above the ground, especially if they  d(#jare onestory homes. The definition of unserved household only describes reception over a conventional  Sj- d(#outdoor rooftop receiving antenna,Ejzz yO'-ԍ17 U.S.C.  119(d)(10)(A).E so requiring measurements on a 30foot antenna may not reflect what"j ,l(l(,,"  d(#is "conventional" at all locations around the country. Finally, requiring tests and a 100foot mobile run  d(#jignores the fact that homes are stationary and that reception may vary considerably over a mobile run on a nearby street.  S4- $150.` ` Measurement Methodology for Individual Locations. Because the SHVA is concerned  d(#with adequate television signals at individual households, it is entirely proper that the Commission, as the  d(#originator of the Grade B standard, develop an objective way to measure whether or not that standard  d(#Oexists at a particular location. In short, the methodology requires a tester to make at least five  d(#measurements in a cluster as close as possible to the location being tested. The median value of the  d(#measurements will be the signal intensity at the location. In deciding on which measurement methodology  d(#.to adopt, we examined the following factors, discussed in detail below the type of testing antenna and  d(#yequipment, where and how many measurements should be taken, the effect of time and weather on signal  d(#strength, the height the testing antenna should be raised, the orientation of the testing antenna, and what  Sj -information should be recorded.]j z yO -ԍThe measurement rule itself is found in Appendix B. ]  S - `251.` ` Regarding the preparation for measurements, we considered the kind of testing antenna  S - d(#that should be used and conclude that a tuned halfwave dipole is the best choice.px Xz yO- d(#ԍA dipole is a wire or telescoping metallic antenna consisting of two straight collinear conductors of equal  d(#length separated by a small gap where the transmission line is attached. The "rabbit ears" on a television set are a  d(#type of dipole. A "halfwave" dipole has an overall electrical length equal to half the wavelength of the frequency  d(#=of interest. For example, the wavelength of a radio signal at 300 MHz is one meter. A halfwave dipole for  d(#receiving a 300 MHz signal, therefore, would have an overall length of onehalf meter (approximately 20 inches).  d(#,However, the physical length of an actual halfwave dipole is approximately 5% shorter due to the thickness of the conductor or the end effect of a wire antenna.p It is widely available,  d(#.inexpensive, and simple to use. In situations where definite readings are required, it has advantages over  Sk- d(#gain antennaskz yO- d(#ԍA "gain antenna" is an antenna that provides a stronger signal (if it is a "positive" gain antenna) to the receiver  d(#than the reference antenna. The "reference" antenna is usually either a dipole or an isotropic radiator. There are  d(#"negative" gain antennas, but they are not generally used for television reception. An isotropic radiator (antenna)  d(#is a hypothetical antenna that radiates equally well in all directions - up, down, left, right. It has no directional characteristics and has no practical application other than as a reference antenna. that are difficult to characterize (calibrate) over a wide range of frequencies. Although  d(#dipole antennas are susceptible to interference from signals other than the one being measured, the cluster measurements that we require will mitigate those effects.  S-  352.` ` We considered where the signal measurements should be taken on the roof, in the yard,  d(#zas close as possible to the house, in the driveway, or at the nearest public road. We conclude that the  d(#/measurements should be taken in a cluster as close as possible to a reasonable and likely spot for the  S- d(#receiving antenna.ZH z yO"- d(#ԍThis conclusion is consistent with the settlement agreement reached in the Primestar/Netlink Agreement, which  d(#0requires five measurements taken in a cluster in the home's driveway or otherwise close to the home.  {O~$-Primestar/Netlink Settlement Agreement, Schedule 7, item (d) at 1. See also NAB Comments at 4445. ğ In doing so, we do not require testers to climb up to the roof or trespass on property  d(#kwhere they are denied permission to enter. Although we recognize, as the satellite carriers argue, that  d(#measurements taken at the television receiver would most accurately reflect the picture that a consumer  d(#ywatches, such an approach would be inconsistent with the intent of the SHVA, which requires the use of"mj,l(l(,,"  S- d(#an outdoor rooftop antenna. Measurements at the television receiver are inappropriate for determining the ambient signal intensity available at a household's roof.  Sh- 453.` ` We considered how many measurements are necessary and conclude that at least five  d(#measurements must be taken, each at a predetermined spot. Multiple readings are necessary because a  d(#single reading may give misleading results. Reflections from surrounding objects could cause a reading  d(#to be either a higher or lower than normal. Multiple readings will tend to mitigate these effects. The spots  d(#!must be chosen before measurements are taken to prevent gaming of the results. They must be a  d(#=minimum distance of three meters from each other, an appropriate spacing to enable reasonably accurate  d(#results. To help ensure the objectivity of the tests, we suggest that, if possible, the first testing point  d(#[should be chosen as the center point of an imaginary square whose corners are the four other spots. The  d(#ztester shall calculate and report the median of the measurements (in units of dBu) as the measurement  d(#Mresults. For purposes of the SHVA, this median measurement will determine whether a household is  Sj - d(#junserved. If signals of more than one transmitter (e.g., more than one television station) are being tested, the tester shall use the same spots for all the measurements.  S - 554.` ` Regarding measurement procedure, we believe that a onetime measurement is sufficient  d(#to determine the signal intensity at individual locations. Satellite carriers and broadcasters appear to agree  Sl- d(#\with this conclusion.lz {O- d(#-ԍSee, e.g., Network Affiliate Associations Comments, Appendix 1 at 14; SBCA Comments at 21; and NAB Comments at 4445. We recognize that several measurements over time may determine even more  d(#laccurately the actual signal intensity at individual locations, but we have sought to create a testing methodology that is both accurate, practical, and relatively inexpensive.  S-  `655.` ` We require the tester to measure the field strength of the visual carrier with a calibrated  d(#instrument with a bandwidth of at least 450 kHz, but no greater than one megahertz. The tester must  d(#perform an onsite calibration of the instrument in accordance with the manufacturer's specifications. The  d(#jinstrument must accurately indicate the peak amplitude of the synchronizing signal. The tester must use  d(#za shielded transmission line between the testing antenna and the field strength meter. The tester must  d(#[match the antenna impedance to the transmission line, and, if using an unbalanced line, employ a suitable balun. Finally, the tester must account for the transmission line loss for each frequency being measured.  S-  P756.` ` We considered the effect that time and weather have on signal strength. Generally, neither  d(#time nor steady-state conditions of weather have an appreciable effect on broadcast television frequencies.  d(#.However, in inclement weather or when major weather fronts are moving through the measurement area, some noticeable consequence may result. The tester should not take measurements at such times.  S -  857.` ` We considered the effect that signal interference has on the strength of the primary signal  S- d(#being measured.p"z yO!- d(#ԍThere are three significant types of signal interference cochannel, adjacent channel, and UHF taboo.  d(#Co-channel (same channel number but assigned to a different market) and adjacent channel (channel numbers that  d(#are adjacent in the spectrum, which are also assigned to different markets) stations are generally assigned well outside  d(#xof a station's Grade B contour. However, UHFtaboo related stations (adjacent in the UHF part of the spectrum) are in many cases located inside a station's Grade B contour.p We have not found an easily reproducible, practical or costeffective objective process",l(l(,,"  S- d(# for measuring interference that impairs reception.z yOh- d(#KԍInterference from other television stations may have no effect on measured signal strength even though it affects the picture quality. Adding expense and complication to the testing  d(# methodology would be inconsistent  d(#with our goal of creating a practical and economical measurement method. While we recognize that  d(#Linterference can make signals unviewable at a given location, and thus ideally issues of this nature should  d(#be reviewed as part of the standard measurement process, the only current way to include these factors  d(#is for all interested parties to undertake a common subjective evaluation at the test site and make a  d(#common judgment on the issue. In the absence of a common subjective judgment, it remains necessary  d(#to rely on the standard process that does not take this factor into account. Because common testing cannot  d(# be required and because it would add expense to the testing procedure, we believe it would be highly  d(#desirable for the parties to develop procedures to address these concerns through waivers or impartial  d(#testing personnel. This is especially desirable in those situations where interference is predicted or  S- d(#{expected to exist.Z z yO - d(#JԍBecause all sides acknowledge that interference affects picture quality and because the LongleyRice prediction  d(#xmodel recommended below is capable of considering interference in its predictions, we include interference in the  {O-version of LongleyRice that we endorse in this proceeding. See  84 infra. In such situations, it is not illogical to give some precedence to the prediction  d(#involved since interference can be reliably predicted and should be confirmable by onsite observation,  d(#even if not recordable using the standard test procedure. Moreover, where local broadcasters are aware  d(#of interference, we expect they will be willing to acknowledge its effects. We believe that the intent of  d(#the SHVA will be better realized if parties consider interference when classifying households as served  d(#kor unserved, and we encourage the engineering community to focus on this issue to improve objective measurement techniques.  S7- 958.` ` We considered the height of a "conventional outdoor rooftop antenna" so that the tester  d(#would know how high to raise the testing antenna. Commenters offered several options, including five  S- d(#feet above the roof,UBz {O-ԍSee, e.g., PrimeTime 24 Comments at 17.U 30 feet for all circumstances, and a combination of 20 feet for a onestory house  S- d(#Mand 30feet for two story houses.gz {O-ԍSee, e.g., Network Affiliates Association Reply at 6972.g There is evidence that signal intensity varies at different heights  d(#Nabove the ground, so the height of the testing antenna could affect whether a household is deemed  S8- d(#unserved.8f z {O>- d(#ԍSee., e.g., PrimeTime 24 Comments, Declaration of Richard Biby at 2; DirecTV Comments at 27; SBCA Comments at 20. Because the SHVA relates to actual ambient signal intensity at individual households, we  d(#>believe that the height of the individual home is significant and, therefore, relevant when dictating the  d(#height of the testing antenna. In the interest of simplicity and consistency, we do not require the tester  d(#to raise the antenna to 5 feet above the height of the roof, which would result in measurements taken at  d(#an endless variety of heights and would increase dramatically the complexity of the testing and predictive  d(#models. We also decline to require that the measurement be taken at 30 feet in all circumstances,  d(#primarily because many American homes are onestory households that do not, and would not, erect a 30 d(#=foot antenna. We conclude that the tester should raise the testing antenna 20 feet (6.1 meters) above the  d(#zground for onestory buildings and 30 feet (9.1 meters) above the ground for buildings taller than one d(#Zstory. This accounts for most households in the country, while maintaining an easytoadminister standard.  d(#yFor example, testers will not be required to measure the height of each individual household and they will": ,l(l(,,-"  S- d(#not have to raise an unwieldy testing antenna that is higher than 30 feet.Xz yOh- d(#ԍRequiring that the testing antenna be elevated to greater than 30 feet would increase the complexity and  d(#expense associated with the test. Requiring that the tester climb on the roof of a single family home or townhouse creates potential liability problems. Therefore, the test methodology does not include these requirements. The 20 foot / 30 foot rule is  d(#also consistent with at least one agreement between the broadcasters and satellite carriers regarding  S- d(#measuring methodology.vz {O"-ԍPrimestar/Netlink Agreement at Schedule 7, p. 1; see NAB Comments at 45.v We recognize that many households are part of multiple dwelling units  Sg- d(#k(MDUs) that present special problems.Xgzz yO - d(#ԍThe Copyright Office has specifically urged the Commission to adopt a standard for measurement to account  d(#for these circumstances. U.S. Copyright Office Reply at 8. The technique we adopt is consistent with that suggested  yO -by the NAB. NAB Comments, Exhibit C, Engineering Statement of Jules Cohen at 13. We believe that where households have access to a master  S4- d(#Mantenna on the MDU's roof, the test should be made there, if possible.>Z4z yOn - d(#ԍThere is support in the record for measuring in the vicinity of the master antenna, if there is one, or on the  {O6- d(#balcony or patio where the dish is located. See NAB Comments, Exhibit C, Engineering Statement of Jules Cohen at 13.> If the MDU has no master  d(#[antenna, then the test should be made at the household (outside if possible, on a balcony or patio) where  S- d(#[the consumer might place a conventional antenna.t\ z yO*- d(#ZԍThe right of consumers to erect an antenna or other overtheair reception device in areas under his or her  {O- d(#exclusive use is protected pursuant to Section 207 of the Telecommunications Act of 1996. See OvertheAir  {O-Reception Devices Rule, 47 C.F.R.  1.4000.t In some instances, particularly in MDUs taller than  d(#three stories, the signal strength may be adequate inside the unit, as with "rabbit ears" on the television  d(#itself. If the signal intensity is stronger inside the unit, in these cases, the measurement should be taken  d(#inside, near the television and using the prescribed testing antenna. We note that MDU residents may  d(#require specialized attention due to the differences inherent in large or tall multiunit buildings. The  d(#rulemaking record is largely directed to issues affecting individual homes and does not contain sufficient detail on the MDU issue to address every circumstance here.  S6 -  :59.` ` We considered how the testing antenna should be oriented. The maximum gain of the  d(#testing antenna (over an isotropic antenna) should face the strongest signal coming from the transmitter  d(#whose signal is being tested. If more than one station's signal is being measured, the testing antenna  d(#should be oriented separately for each station. This orientation is consistent with good engineering  Sj- d(#practice, with the technique required by the Commission's signal measurement rules,>jz yO-ԍ47 C.F.R.  73.686.> and with the  S7- d(#0PrimeStar/Netlink Agreement on determining eligible households.7pz {OG!- d(#wԍSee NAB Comments at 45 and Network Affiliate Associations Reply, Exhibit B, PrimeStar/Netlink Agreement at Schedule 7. It is also consistent with the  d(#=Copyright Act, which defines an unserved household in relation to an individual television station rather  d(#than to all network affiliates in a market. Section 119(d)(10) defines unserved household "with respect  d(#to a particular television network" and states that such a household must be unable to receive the signal  d(#of "a primary network affiliate station affiliated with that network." Based on this distinction, we believe  S8- d(#that signal testers should focus on individual stations. Because one of the primary purposes of this Order"8,l(l(,,"  d(#is to provide a practical and reliable measurement methodology, we include in the testing procedure the proper orientation, which is essential to ensure the validity and integrity of the signal intensity test.  Sg-  ;60.` ` Finally, we considered how to ensure the integrity of the signal tests simply and with as  d(#little burden as possible. The tester shall make and maintain a written record of the measurements that  d(#includes several items (i) a list of calibrated equipment used in the field strength survey, which for each  d(#instrument, specifies the manufacturer, type, serial number and rated accuracy, and the date of the most  d(#recent calibration by the manufacturer or by a laboratory; (ii) a detailed description of the calibration of  d(#the measuring equipment, including field strength meters, measuring antenna, and connecting cable; (iii)  d(#for each spot at the measuring site, all factors which may affect the recorded field, such as topography,  d(#height and types of vegetation, buildings, obstacles, weather, and other local features; (iv) a description  d(#of where the cluster measurements were made; (v) time and date of the measurements and signature of  S - d(#the person making the measurements; (vi) for each channel being measured, a list of the measured value  d(#of field strength (in units of dBu and after adjustment for line loss and antenna factor) of the five readings  d(#zmade during the cluster measurement process, with the median value highlighted. We note that slight,  d(#zunintentional departures from these written procedures will not invalidate a test if there is no basis to believe they affected the outcome.  Sj- XD.` ` Predicting Television Signal Intensity at Individual Locations (#  S- <61.` ` Although the SHVA appears to require actual signal measurements when determining  d(#ywhether households are unserved, broadcasters and satellite carriers often use a predictive model to avoid  d(#the costs and difficulties associated with such onsite measurements. However, they do not always agree  d(#.on which model is most appropriate. Even when parties use the same model, they often disagree on the  d(#factors that are considered in that model. For example, different predictive models may or may not  d(#account for the effects on signal strength of receiving antenna height, vegetation, ground clutter, buildings,  d(#signal interference, or multipathing. Additionally, predictive models may account differently for  d(#variability in signal strength over time and location, and may predict signal strength with varying levels of confidence. Also, values for these parameters may be varied within some predictive models.  S-  =62.` ` Many commenters, particularly satelliteaffiliated commenters, have asked the Commission  d(#to adopt a predictive model in this rulemaking, and they express strong preferences for what that model  d(#should look like. Satellite carriers assert that the Commission has the authority to develop a model for  d(#zpredicting whether a household can receive a signal of Grade B strength, but most concede that such a  d(#jmethodology should not preclude a party from conducting actual tests. Some commenters state that any  S- d(#challenger to a presumption created by the test should bear cost of the tests, regardless of the results.z {Oo- d(#ԍSee, e.g., DirecTV Comments at 26; DirecTV Reply at 1314; NRTC Comments at 24; SBCA Comments at 18.  S- d(#Other commenters argue that the loser in a challenge should pay the cost of measurements."z {O!- d(#ԍSee, e.g., NAB Reply at 44; Media Venture Management Comments at 3; ETAI at 26; Network Affiliate  yO`"-Associations Reply at 6768; Biby Comments at 6 and 18. Satellite  d(#[carriers do not agree on which of two predictive models, LongleyRice or Terrain Integrated Rough Earth  Sn-Model (TIREM), is the best model for SHVA purposes, although most favor TIREM.  S -  B>63.` ` Usefulness of Predictive Models. In the NPRM, we asked whether we could mandate a  d(#jmodel for SHVA purposes or merely endorse one. Broadcasters contend that only an actual site test can  d(#settle the legal eligibility of an individual household and that the Act grants the FCC no authority to"!|,l(l(,,%"  S- d(#unilaterally substitute a predictive model.z {Oh- d(#ԍSee, e.g., Association of America's Public Television Stations (APTS) Comments at 6; Network Affiliate  d(#Associations Reply at 64; Walt Disney Company (ABC) Comments at 1921; Shockley Communications Corp. et  d(#>al. Comments at 5; and Cordillera Communications et al. Comments at 14 (statute clearly requires actual  d(#measurements, precludes Commission mandating a model, but use of accurate model by satellite carriers can  {O- d(#dramatically reduce the number of households that would have to be tested). But see Capitol Broadcasting Comments at 4 (urges Commission to use predictive model in lieu of actual measurement). They assert that satellite providers and broadcasters may  d(#privately negotiate the use of a predictive model, but the SHVA precludes the Commission from  d(#mandating a particular predictive methodology. If the Commission does endorse a model, most  d(#broadcasters argue that the model should only create a rebuttable presumption of service of lack of  S4- d(#service.4Dz {O - d(#JԍSee, e.g., Shockley Communications Corp. Comments at 5; Wilmington Telecasters Comments at 5; National Communications Comments at 5; JME Media Comments at 5. The satellite providers counter that the Commission certainly has the authority to develop a  S- d(#predictive model.Sz {O?-ԍSee, e.g., DirecTV Comments at 1516.S Some satellite commenters state that such a methodology should not preclude a party  S- d(#from conducting actual tests,t0 z {O-ԍSee, e.g., NRTC Comments at 21, 23; DirecTV Comments at 56, 26.t but at least one commenter argues that a prediction is enough, by itself,  S- d(#to satisfy a satellite carrier's burden of proving that a household is unserved.W z yO-ԍDirecTV Comments at 26; DirecTV Reply at 1314.W The satellite providers  d(#also argue that because the Commission has created predictive models for other uses of the Grade B construct, it may develop a predictive model specifically for the use of Grade B in the SHVA.  S- ?64.` ` We conclude that predictive models can be effective and helpful proxies for individual  d(#household measurements and that we have the authority to develop and endorse a model for making  d(#predictions of signal strength at individual locations. The Commission has developed and used predictive  S6 - d(#kmodels for determining signal intensity in other contexts (e.g., determination of stations' DTV service  S - d(#zareas).> R z yO-ԍ47 C.F.R.  73.684.> Two prominent examples are the newer LongleyRice models and the procedure set forth in  d(#MSection 73.684 of our Rules for determining traditional Grade B contours using the radio propagation  d(#curves for broadcast television set forth in Section 73.699. We believe our position as the originator of  d(#the Grade B criterion qualifies us to determine the effectiveness and accuracy of predictive models that relate to it.  S- _@65.` ` The difference in taking actual measurements at individual households and using predictive  d(#models is significant, because measurement requires time, money, and other resources that often outweigh  d(#the benefits. For example, it may cost more for a satellite company to take a measurement than it can  d(#recover through subscriber and advertising fees. To avoid these costs, satellite providers may have refused  S- d(#or terminated service to consumers who are actually unserved.z {O$- d(#ԍSee, e.g., PrimeTime 24 Comments at 5 (tests too expensive to be economically feasible); Superstar/Netlink Comments at 4; and SBCA Comments at 14. Additionally, satellite providers,  d(#broadcasters, and consumers have often turned to predictive models that erroneously permit some served  d(#households to receive satellite network service, or, conversely, prevent some unserved households from"<,l(l(,,$"  S- d(#kbeing eligible to receive network stations via satellite."z {Oh- d(#KԍSee National Telecommunications and Information Agency (NTIA) Comments on NRTC Petition at 12;  d(#PrimeTime 24 Comments on NRTC Petition at 4, 7, 13; PrimeTime 24 Comments on Echostar Petition at 34;  d(# DirecTV Joint Comments on Petitions for Rulemaking at 17; PrimeStar Partners Comments at 67; NRTC Comments at 20; and DirecTV Reply Comments at 1112. When truly unserved households are deemed  d(#!ineligible for broadcast network service via satellite, consumers are hurt and the SHVA's intent is  d(#thwarted. Likewise, when served households are deemed eligible for satellitedelivered broadcast network  d(#1service, network affiliates are harmed and the SHVA's intent is also thwarted. We believe the  d(#Commission's endorsement of a model will address some of the problems that consumers, as well as the  d(#broadcast and satellite industries, encounter when following the SHVA. We expect our endorsement to  d(#reduce conflicts regarding which model satisfactorily predicts a household's true status as served or  d(#unserved, and we hope that a single model makes it easy for consumers to determine their eligibility for  d(#jsatellitedelivered broadcast network service at the time they subscribe to a DTH satellite service (at the point of sale).  S-  ~A66.` ` We recognize that we speak only as the expert agency on the Grade B construct, not as  d(#the primary enforcer of the SHVA. That role belongs to the courts. We also acknowledge that we cannot  Si - d(#change satellite carriers' burden under the SHVA of proving that a household is unserved,Ni z {O-ԍSee 17 U.S.C.  119(a)(5)(D).N and use of  S6 - d(#the predictive model we endorse is discretionary with the parties.>6 Dz {O-ԍBut see  97.> While our predictive model need not  d(#.replace actual measurement, it could serve as a presumption of service or lack of service for purposes of  S - d(#the SHVA. z yOF- d(#ԍFor example, we note that some broadcasters have entered into agreements with Primestar and Netlink (satellite  d(#television providers) to resolve disputes arising from the SHVA requirements. These settlements assign fivedigit  d(#zip codes to each station and classify each zip code as "red light" if more than 50% of the zip code's population is  d(#served based on LongleyRice propagation data and as "green light" if 50% or less of the population in the zip  d(#xcode is served. Primestar and Netlink agreed in this settlement that they will not sign up new subscribers who are  d(#;in a "red light zip code" unless the station grants a waiver or the satellite carrier conducts a signal intensity test that  d(#shows the household does not receive a Grade B intensity signal. The agreement also describes a simplified testing  d(#methodology for measuring signal intensity at a home and provides that the "loser pays" for any tests that are  {O- d(#/conducted. See Settlement and Compliance Agreement Between ABC, Inc., CBS Broadcasting, Inc., Fox  d(#Broadcasting Company, National Broadcasting Company, and Certain ABC, CBS, Fox, and NBC Network Stations;  d(#the National Association of Broadcasters; the ABC Television Affiliates Association, the CBS Television Network  d(#Affiliates Association, the Fox Television Affiliates Association, and the NBC Television Affiliates Association AND  d(#hPrimestar Partners, L.P., Netlink USA, and Telluride Cablevision, Inc. This settlement is a part of the public record in this proceeding. A presumption should make administration of the unserved household rule easier and more  d(#Lcosteffective for both consumers and the industries. Broadcasters and satellite providers should be able  d(#to rely on a Commissionendorsed model when deciding whether individual consumers are presumed to  S7- d(#be eligible to receive satellitedelivered network signals.7z {Og$- d(#iԍCommenters note that consumers and industry need certainty in this area. See, e.g., PrimeTime 24 NRTC Comments at 89, 13; Superstar Echostar Comments at 810; DirecTV Joint Comments at 2, 1011, 19. Moreover, we recommend that courts accept  d(#/the model's predictions as sufficient to show that a satellite service provider has carried its statutory",l(l(,,"  S- d(#burden of showing that a household is unserved.Cz yOh-ԍ17 U.S.C. 119(a)(5)(D).C We believe that such an approach is consistent with  d(#jthe Miami federal court's use of one variation of the Commission's LongleyRice predictive methodology  S- d(#.in its injunctions.\Xz {O- d(#iԍCBS v. PrimeTime 24, Preliminary Injunction at 3; CBS v. PrimeTime 24, Final Ruling, slip op. at 49; CBS  {O\- d(#v. PrimeTime 24, Permanent Injunction, slip op., at 2 (court uses LongleyRice Version 1.2.2 per Commission's OET Bulletin No. 69 to determine which households may receive network programming from PrimeTime 24). Finally, we recommend that the rebuttable presumptions created by our model will  d(#be combined with incourt and outofcourt "loser pays" mechanisms to help the SHVA operate more  S4- d(#smoothly.T4|z {OP -ԍSee  93, 97 infra.T Such a loser pays scheme would require the loser of any challenge to a predictive model's presumption to pay the costs of an onsite test following the challenge.  S- B67.` ` Inadequacy of the Traditional Grade B Contour Methodology. In the NPRM, we sought  d(#comment on the application of existing predictive models in the SHVA context, including our "traditional"  S6- d(#Grade B contour methodology and the LongleyRice predictive model.6z {O- d(#ԍNPRM at  33; see 47 C.F.R.  73.684(d) and 73.686(b) (traditional Grade B contour method); OET Bulletin 69 (LongleyRice methodology). We tentatively concluded that  d(#[the Commission's traditional predictive methodology for determining a Grade B contour is inappropriate  d(#for predicting signal strength at individual locations. Our rules state that this methodology is for three  d(#=purposes only: (1) estimation of coverage resulting from the selection of a particular transmitter site, (2)  d(#problems of coverage related to 47 C.F.R.  73.3555 (ownership restrictions), and (3) determination of  S7 - d(#compliance with  73.685(a) concerning minimum field strength over the principal community.\7 h z {O?- d(#ԍSee 47 C.F.R.  73.683(c). See also Superstar/Netlink Comments at 17 (noting that the rule cautions that these  d(#contours are limited in estimating levels of field strength and asserting that these contours give no assurance of  {O-service to any specific percentage of receiver locations) Id. at n. 38. The  d(#jtraditional methodology predicts signal strength on the basis of average terrain elevation along radial lines  S - d(#=extending only ten miles from a television station's transmitter.e z {O-ԍSee 47 C.F.R.  73.684(d) and 73.686(b) and (c).e The traditional methodology does not  d(#accurately reflect all the topographic differences in a station's transmission area, and explicitly does not  Sk- d(#zaccount for interference from other signals.Vkz yO)-ԍ47 C.F.R.  73.683 and 73.684(a).V These omissions make it an imperfect methodology for  S8- d(#>predicting whether an individual household can receive an adequate signal.$8z yO - d(#hԍThe Commission also declined to use the traditional methodology in the DTV allocations proceeding, favoring  {ON!- d(#instead one variation of LongleyRice model 1.2.2. See Advanced Television Systems and Their Impact upon the  {O"- d(#Existing Television Broadcast Service, Sixth Report and Order, 12 FCC Rcd 14588, 14676 (1997) ("DTV Sixth Report and Order"). For example, the model may fail to account for terrain features that could block a house's reception.  S- C68.` ` Commenters agree that the traditional methodology for predicting a Grade B contour  d(#should not be used as a prediction model for purposes of the SHVA. Satellite industry commenters state  d(#that these field strength contour and coverage prediction rules were never intended to be used to determine"9 ,l(l(,,"  S- d(#Nwhether a particular individual could see an acceptable picture at his or her home.{z {Oh-ԍSee, e.g., Superstar/Netlink Comments at 18; DirecTV Comments at 2122.{ The SBCA's  d(#mConsulting Engineers, Hatfield & Dawson, call the methodology in Section 73.684 of our rules  d(#="simplistic," and commends the Commission for ignoring pleas to use the traditional methodology in the  Sg- d(#DTV Allotment determinations.dgZz yOa-ԍSBCA Comments, Hatfield & Dawson Engineering Statement at 7.d Broadcasting industry commenters agree that the traditional  S4- d(#methodology is insufficient.`4z {O-ԍSee, e.g., Network Affiliate Assn. Comments at 60.` In practice, as well as in the Miami lawsuit, they have endorsed the  S- d(#LongleyRice model for signal strength predictions.wZ|z {O - d(#ԍSee, e.g.  , NAB Comments at 3839; MSTV Comments at 25; Network Affiliate Assn. Comments at 60. ("Both  d(#the broadcasting and satellite industries are familiar with LongleyRice, and, as the Commission determined in the DTV proceeding, a better predictive model has not been developed.").w In their pleadings, the majority of broadcasters say  S- d(#that the Commission should endorse the LongleyRice model "as implemented for DTV,"`z {O -ԍSee, e.g., Network Affiliate Assn. Comments at 60.` although some  d(#feel that, for SHVA purposes, the model should not be adopted in all particulars. Other broadcasters feel  Sh- d(#that SHVA did not intend the use of any predictive methodology\h0 z {O8-ԍSee, e.g., Walt Disney Company Comments at 20.\ and that such models have no legal  S5-relevance to the ultimate determination of subscriber eligibility.w5 z {O-ԍSee, e.g., Cordillera Communications, et al., Comments at 12.w  S- $D69.` `  LongleyRice PointtoPoint Model for Digital Television. We noted in the NPRM that  d(#/the Commission recently adopted, in the digital television (DTV) proceeding, rules for analyzing TV  d(#lservice areas using a pointtopoint prediction method based on version 1.2.2 of the LongleyRice  S7 - d(#propagation model.7 T z yO+- d(#ԍThe LongleyRice model used for analysis of DTV and analog TV service in the DTV proceeding is described  d(#Min "LongleyRice Methodology for Evaluating TV Coverage and Interference," OET Bulletin 69, Federal  d(#Communications Commission (July 2, 1997) < http://www.fcc.gov/oet/info/documents/bulletins/#69 >. LongleyRice  {O- d(#is the Commission's designated methodology for determining where service is provided by a DTV station. See 47  {OM- d(#C.F.R.  73.622(e). See also Advanced Television Systems: Sixth Report and Order ("DTV Sixth Report and Order"), 12 FCC Rcd 14588, 1467276. We proposed that this variation of LongleyRice be used to determine Grade B  d(#.service at individual households. The LongleyRice propagation model is the most widelyused private  S - d(#means of predicting the existence of a signal of Grade B intensity for SHVA purposes. z {OA!- d(#ԍ See CBS v. PrimeTime 24, Final Ruling, slip op. at 2325. See also NAB Comments, Declaration of Jules Cohen at 1415. Although it is  d(#similar to the traditional method for determining a Grade B contour, LongleyRice improves the traditional  Sk- d(#model by adjusting the predictions for changes in terrain (e.g., hills and valleys between the transmitter  d(#and the house) along the entire path from the transmitter to the specified receive site. Thus, while the  d(#?Commission's traditional contour method often results in smooth concentric circles surrounding a  d(#jtransmission tower, the LongleyRice method produces rougher outlines that more precisely depict areas of coverage."!*,l(l(,,"Ԍ S- #ԙE70.` ` The broadcasters support the use of the LongleyRice pointtopoint model in the SHVA  d(#context (assuming, they state, that the Commission may endorse a model in the first place), but the satellite interests claim it is insufficient. The Network Affiliate Associations declares,  ` XX` ` To the extent the Commission wishes to advise Congress, [we] endorse   `dthe Commission's proposal to recommend the LongleyRice propagation  `model as a means of predicting Grade B service at individual locations.  ` Both the broadcasting and satellite industries are familiar with Longley `Rice, and, as the Commission determined in the DTV proceeding, a better  S5-predictive model has not been developed.O5z yO -ԍNetwork Affiliate Assn. Comments at 60.Ox`  d(#The broadcasters accept LongleyRice with the proviso that it should not make predictions for households  S - d(#Nonly within a station's predicted Grade B contour. Xz {O -ԍSee, e.g.,  HearstArgyle Comments at 12; Network Affiliate Assn. Comments at 61 and Reply at 20. This argument recognizes that many served  d(#\households exist outside a station's contour, and it highlights the irrelevance of a station's service area  d(#when determining, for purposes of the SHVA, what is happening at an individual household. Broadcasters  d(#also assert that the time and location variability factors and the statistical confidence levels should all be  S - d(#50%. z {OZ- d(#ԍSee, e.g., Network Affiliate Associations Comments at 62 and Reply at 4547; MSTV Comments at 12; and NAB Reply at 2930. Many satellite commenters reject LongleyRice as a first choice because they allege it is based  d(#lon extremely low and unrealistic prediction of service probabilities and fails to account for several  d(#important factors that affect signal availability, including interference from other signals, vegetation, and  S7- d(#buildings.7Dz {O-ԍSee, e.g., NRTC Comments at 22; PrimeTime 24 Comments at 17; SBCA Comments at 15. They propose the use of the TIREM methodology, jointly developed by the Department of  S- d(# Defense and the National Telecommunications and Information Agency (NTIA).z {Oz- d(#-ԍ See, e.g., SBCA Comments at 15; Pegasus Communications Comments at 21; NRTC Comments at 2324; Echostar Comments at 89. TIREM is fully  d(#=discussed below. If we do not accept TIREM, the satellite carriers accept LongleyRice as the next best  S- d(#?option.x0 z {On-ԍSee, e.g., PrimeTime 24 Comments at 5; Primestar Partners Comments at 89.x PrimeTime 24 submits that if we do endorse LongleyRice, the Commission must pay  d(#yparticularly careful attention to the parameters used in the model and should require the model to assume  d(#the receiving antenna height is 5 feet above the actual height of the household's roof or, alternatively, no  S-more than 20 feet above ground.D z yOg!-ԍPrimeTime 24 Comments at 15.D  S-  CF71.` `  A Predictive Model for Individual Locations.  The model we endorse is a version of  d(#MLongleyRice 1.2.2 that we have adapted for predicting signal strength at individual locations. Called  d(#k"Individual Location LongleyRice" or "ILLR," it is similar to the pointtopoint predictive model we  S- d(#established for digital television (DTV) allocations.hR z yO&-ԍThe DTV LongleyRice model also used LongleyRice version 1.2.2.h We believe ILLR is an accurate, practical, and"",l(l(,,"  d(#readily available model for determining signal intensity at individual locations. ILLR has several characteristics, discussed in detail below, which make it unique:  Sg-XX` ` X the time variability factor is 50%gz yO- d(#ԍWhen the time variability factor for the predicted field strength is 50%, an acceptable quality picture should be available 90% of the time. and the confidence variability factor is 50%; (#  S4-XX` `  X the model is run in individual mode; (#  S-XX` `  X terrain elevation is considered every 1/10 of a kilometer;(#  S- z rXX` `  X receiving antenna height is assumed to be 20 feet above ground for onestory buildings and 30 feet above ground for buildings taller than onestory; (#  Sh- z XX` `  X land use and land cover (e.g., vegetation and buildings) shall be included when an accurate method for doing so is developed;(#  S- z XX` ` X where error codes appear, they shall be ignored and the predicted value accepted or the result shall be tested with an onsite measurement;(#  S -` `  locations both within and beyond a station's Grade B contour shall be examined.(#  d(#We believe the ILLR can be used for predicting signal strength for purposes of the SHVA as well as for  d(#other purposes that require information about signal intensity at discrete locations. The model would not  d(#.supplant currentlyexisting approaches for depicting a field strength contour or for describing a station's  d(#service area. Specifically, the ILLR will not replace the current Commission rules for field strength  Sj- d(#[contours (47 C.F.R. 73.683) or prediction of coverage for nonSHVA purposes (47 C.F.R. 73.684).H j z yO*- d(#ԍAs stated in Section 73.683(c), field strength contours are considered for three purposes only, none of which  d(#Yinclude determination of signal intensity at individual locations: (1) estimating coverage resulting from the selection  d(#of a particular transmitter site, (2) in connection with problems of coverage related to the Commission's duopoly  d(#hrules (47 C.F.R. 73.3555), and (3) determining compliance with 73.685(a) concerning the minimum field strength  d(#Lto be provided over the principal community. Section 73.683 makes it clear that field strength contours are insufficient tools for determining what is happening at any particular location:  "XUnder actual conditions, [a signal's] true coverage may vary greatly from these estimates because  the terrain over any specific path is expected to be different from the average terrain on which the field strength charts were based.  * * *  X[T]he actual extent of service will usually be less than indicated by these estimates due to  0interference from other stations. Because of these factors, the predicted field strength contours give  no assurance of service to any specific percentage of receiver locations within the distances indicated. ƿ  d(#In fact, the ILLR should not affect a station's Grade B contour or service area, because areas are irrelevant  d(#when predicting what signals exist at a particular location. As both satellite carriers and broadcasters have  d(#recognized, a predictive model for individual locations might identify unserved households that lay within  S- d(#a station's Grade B contour or, likewise, might identify served households outside a Grade B contour.,Z0z {On$- d(#ԍSee, e.g., NRTC Comments at 13; Richard Biby Comments at 2; Professional Service Association Comments  d(#at 27; Network Affiliate Associations Comments at 61; Grant Broadcasting Comments at 4; and Walt Disney Comments at 21., "#R,l(l(,,t"  S- d(#Importantly, our model should not increase or decrease the number of truly unserved households.Qz yOh- d(#ԍIn answer to concerns raised by some broadcasters, the predictive model can recognize that many households,  {O0- d(#particularly in rural areas, are served by "translator stations." See, e.g., New Mexico Broadcasters Association  d(#Comments at 12 and Exhibit A. The ILLR model, like the onsite measurement, will consider the signal of either  d(#the affiliate station or its translator, as appropriate, to determine whether a household is receiving adequate signal strength.Q  d(#The number of unserved households remains finite under any single definition of Grade B intensity, and  d(#we do not change that definition here. If a household is unserved in reality, the ILLR prediction model  d(#[will not change that situation. Likewise, if a household is currently served, the prediction model will not  d(#change it to an unserved household. A predictive model of any sort simply reflects reality without  d(#Lactually testing or observing it, and some are better than others at painting the most lifelike picture. The  d(#ILLR corrects for the mistakes of lessappropriate and lessaccurate models by more precisely identifying households as served or unserved.  S5-  G72.` ` Time, Location, and Confidence Factors. Predictive models are inherently imperfect  d(#because they seek to replicate reality without actually measuring or observing it. These imperfections can  d(#{be mitigated through statistical means and by varying the "ingredients," or factors, included in any  d(#particular model. For example, although signals of Grade B intensity are defined as discrete values  d(#measured in dBu, the intensity of broadcast signals at particular locations and at particular times cannot be precisely determined, regardless of the predictive method used.  S -  H73.` ` One way to account for these factors is to build them directly into signal strength values.  S - d(#The Grade B intensity levels are actually median signal strengths i.e., 50% of locations in a particular  d(#>area should receive a Grade B signal or higher at least 50% of the time. However, this does not mean  S9- d(#that 50% of the locations will receive an acceptable picture only 50% of the time. The Grade B values  d(#?have a builtin time factor so that an acceptable picture is predicted at least 90% of the time. For  d(#example, a signal strength of 41 dBu equals an acceptable picture for channels 26. To ensure that a  S- d(#location receives such a signal 90% of the time, the Grade B value for those channels, 47 dBu, includes  Sn- d(#[an extra time factor of 6 dBu.Ynzz {O-ԍSee discussion at  15 n.30 supra.Y Thus, although a location receiving a Grade B signal of 47 dBu will only get that signal 50% of the time, that same location will receive a 41 dBu signal 90% of the time.  S- I74.` ` Time, location, and confidence factors can also be built into predictive models.l z {O-ԍSee  79 for discussion on the location variability factor.l  d(#However, it is often unnecessary to build an additional factor into a predictive model to get the desired  d(#jresults. For instance, the Grade B values already predict the existence of an acceptable television picture  d(#at least 90% of the time, so the model need only predict that a signal of Grade B intensity exists at least  d(#l50% of the time. Use of a higher time factor, such as 90%, would amount to unnecessary double d(#[counting. The LongleyRice model used for DTV allocations recognizes this and, therefore, incorporates  d(#the 50% time factor into its calculations. Both broadcasters and satellite carriers agree that this is also"$,l(l(,,M"  S- d(#appropriate for purposes of the SHVA.2z {Oh- d(#ԍSee, e.g., Network Affiliate Assn Comments at 6263 ("current Grade B field strength values already  d(#incorporate a time fading factor to achieve the desired level of statistical reliability, viz. that the best 50% of  d(#locations at the contour receive an acceptable picture at least 90% of the time. The LongleyRice time variability  yO- d(#input should only be changed to 90% if time fading factor is subtracted."); NAB Reply at 29 (90% time variability  {O- d(#is already built into Grade B value, which is used in the DTV LongleyRice model). See also, MSTV Comments at 11; ETAI Comments at 7; Primestar Partners Comments at 4; PrimeTime 24 Comments at 28.2 We therefore see no reason to change the number when adapting LongleyRice to the individual location context.  Sg-  2J75.` ` Although the parties generally agree that the time factor should be 50%, they do not agree  d(#on the appropriate level for the confidence factor. Confidence, in this context, is a way of expressing how  S- d(#!certain the model is that the predicted signal value is at least that high.Dz {O - d(#KԍSee Hufford, G.A., Longley, A.G., Kissick, W.A., A Guide to the Use of the ITS Irregular Terrain Model in  {O - d(#the Area Prediction Mode, NTIA Report 82100, U.S. Department of Commerce at 30, 3637 (April 1982). This  d(#confidence factor differs from the "confidence interval" that is used to test a hypothesis in a statistical probability  d(#model. Mr. Hufford explains that "to an individual receiver of a broadcast station, [confidence] will be a measure  {O -of a combined situation and location variability." Id. at 36. Importantly, it is not a  d(#reflection of how accurate the model is. LongleyRice has generally incorporated a 50% confidence factor  S- d(#in its calculations.)X z yO6- d(#ԍ"To predict TV service . . . the FCC sets location variability at 50% and the time variability at 90%. The  d(#percent confidence is set at 50%, indicating that we are interested in median situations." OET Bulletin No. 69 at 7.) The broadcasters object to any higher number because they claim it underpredicts  d(#served households, and would discourage trust in the model while encouraging more signal testing. The  S6- d(#broadcasters note that "confidence" does not mean, as the word implies, that the model is more accurate.6z {O-ԍSee, e.g., NAB Supplemental Comments at 23 and Affiliate Associations Supplemental Comments at 1213.  S- AK76.` ` We believe that increasing the "confidence" factor above 50% decreases errors of one type  d(#and increases errors of another type. For example, if we use a confidence factor of 90%, the model will  d(#["search" for a predicted signal value at a particular location in which it has 90% confidence that the value  d(#would, in reality, be that value or higher. The model could predict a particular signal value, say 47 dBu,  d(#mand be 85% confident that the signal would be 47 dBu or higher in reality. Such a high level of  d(#=confidence means it would be very likely that the location would get a 47 dBu signal. However, because  d(#yit is searching for a value in which it has 90% confidence, the model would not predict 47 dBu and would  d(#.continue searching. Eventually, the model would find a signal value in which it has 90% confidence, say  d(#45 dBu, and deliver that as the result. Taking the example one step further, consider a "served" household  d(#Munder the SHVA to be a household that receives a signal of at least 47 dBu (the appropriate value for  S- d(#channels 26). If the model predicts with 90% confidence that a signal of at least 45 dBu exists, the 45  d(#dBu household would be classified as "unserved," even though it is very likely (85% confidence) that it  d(#>receives a signal of at least 47 dBu. We believe it would be inconsistent with the SHVA to classify a  S:- d(#Lhousehold as unserved when a model could predict it to be served with such a high degree of confidence.  d(#Therefore, a confidence variability factor of 90% is unsuitable for purposes of the SHVA because it overpredicts the number of truly unserved households.  So- ~L77.` ` A predictive model that includes truly served households in an unserved category, even  d(#=temporarily, creates several undesired effects. First, consumers could be confused and frustrated. If the"<%,l(l(,,"  d(#model overpredicts the number of unserved consumers, and those consumers subscribe to network service  d(#via satellite, they will face disappointment when the broadcaster forces termination of the broadcast  d(#ynetwork service. Conversely, if the model underpredicts the number of unserved consumers, they would  d(#>be unjustly deprived of broadcast network service via satellite. Second, the SHVA protects network  d(#affiliates by making their served households off limits to satellite delivery of broadcast networks. A 90%  d(#confidence factor for served households would make many truly served households eligible for satellite d(#?delivered network service, contrary to the intent of the SHVA. Third, if we endorse a model that  d(#underpredicts served households, broadcasters would have a great incentive to challenge the model's  d(#!prediction by taking an actual measurement. Satellite carriers would pursue testing when models  d(#consistently underpredict unserved households. Either result would defeat our goal of endorsing a predictive methodology upon which all parties can rely.  S -  M78.` ` We have chosen to incorporate a 50% confidence factor in the ILLR model because it  d(#zneither overpredicts nor underpredicts served households. A 50% confidence factor does not create a  d(#[statistical bias in favor of either satellite carriers or broadcasters. Rather, it provides a median result that  d(#[does not predictably err in one direction or the other. We have sought to endorse a confidence factor that  d(#is fair to both sides. Importantly, broadcasters have accepted the 50% confidence factor in their pleadings  d(#and in their endorsement of the DTV LongleyRice model in the Miami court case. Similarly, SBCA's  d(#engineering experts, Hatfield and Dawson, propose using a 50% confidence factor in the TIREM model  d(#that they endorse. They explain that when the confidence factor is 50%, the model predicts the median  S-situation and "the user has no control over this statistical variable."gz" {Ol- d(#/" 1. 1. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a) &G\  P r  A\  P Qw эSBCA Reply, Hatfield and Dawson Engineering Statement at 89. See also Network Affiliate Assn  {O -Supplemental Comments at 14. See discussion of TIREM model,  86 infra.  S- BN79.` ` Individual Mode. The ILLR will operate in a socalled "individual mode," reflecting an  d(#{observer's pointofview at a single location. In the ILLR, location variability becomes effectively  S9- d(#Lirrelevant because only one location (e.g., a single household) is considered. The individual mode merges  d(#location variability (the measurable or observable differences between dissimilar locations) and socalled  d(#Lsituational variability (the small, often hidden, differences between similar or identical locations) into the  S-statistical confidence factor.!"z yO8- d(#xԍAccording to one expert source, situational variability is caused by environmental changes or the effects of  d(#random elements in nature. He writes, "If we use like appearing situations that is, if we change operations from  d(#one area to another very similar area or if we merely change the sampling scheme somewhat then the observed  {O-changes in the location variability we call situation variability." Hufford Report at 30.! One expert on the issues, George Hufford, states:  S;- `7XX` ` In the individual mode situation and location variability are combined so  `that there remain this combined variability and time variability. Here, the  `typical user would be the individual receiver of a broadcast station for  `whom reliability means the time availability, and confidence means the  So-combined situation/location variability.=oz yO"-ԍHufford Report at 37.=x`  d(#mCompare the "broadcast mode," in which the DTV LongleyRice model operates, but which is  S- d(#inappropriate for the purposes of the SHVA.Kqz {O&-ԍSee OET Bulletin No. 69 at 8.K That mode reflects the broadcaster's pointofview when"& ,l(l(,,"  d(#=it is determining a service area that includes many locations. The DTV allotment proceeding utilized the  d(#broadcast mode because it was predicting the service areas of the new DTV stations, not the status of individual households as served or unserved by analog (NTSC) signals.  S4- pO80.` ` Terrain Elevation. Because the model seeks to predict signal intensity at individual  d(#locations, the model we endorse considers terrain elevation every 1/10 of a kilometer. This distance is  d(#as precise as current technology allows. It contrasts with the DTV LongleyRice model that considers  S-terrain elevation every kilometer.7z {O-ԍId.7  S6- P81.` ` Antenna Height. The ILLR model approximates the height of the household whose signal  d(#is being predicted. Current models presume an antenna height of 30 feet. The model we endorse, when  d(#used for purposes of the SHVA, shall incorporate an antenna height of 20 feet for one story buildings and  d(#30 feet for buildings taller than one story, including MDUs. This requirement is generally consistent with  d(#our conclusions about the height a tester must raise a testing antenna when making actual, onsite signal  S8 -measurements.^Z8 Zz {O2- d(#ԍSee  58. We note that in some instances measurements in a highrise MDU may be made at a height greater  d(#than 30 feet. MDU residents may require specialized attention due to their unusual circumstances, which will vary from person to person and building to building. ^  S -  S - Q82.` ` Land Use and Land Cover. Satellite carriers and some other commenters argue that  d(#zvegetation and buildings affect signal intensity. Some broadcasters agree that vegetation and buildings  d(#affect signal propagation, but assert that the Longley-Rice model, as well as the Grade B planning factors,  S:- d(#yalready account for these effects.X:|z yOV- d(#ԍThe Network Affiliate Associations maintain that the empirical foundation for Longley-Rice incorporates some  d(#,buildings and vegetation data and assert that adding additional vegetation or building data to the model would require that the empirical data be "backed out" of the model. Network Affiliate Assn Supplemental Comments at 1-3.  The Network Affiliate Associations acknowledge, however, that the  d(#kempirical data allegedly incorporated in the Longley-Rice model consists of, at most, "sparse" ground  S- d(#cover and some "areas with moderate forestation."]z {O-ԍId. at 2 and Hufford et al., Guide at 12.] They add that this data produces a model that  d(#includes the effects of foliage "only to the fixed degree that they were present in the data used." Other  d(#=broadcasters contend that buildings have no appreciable effect on the rural areas that Congress sought to  d(#[protect in the SHVA because large buildings exist primarily within the "city grade" where a broadcaster's  S- d(#.field strength is strong enough to overcome any problems.". z {O- d(#ZԍNetwork Affiliates Assn Reply at 29 and NAB ex parte comments on January 21, 1999. Network Affiliate  d(#Associations also contend that Congress intended the SHVA to provide network signals via satellite to rural areas,  d(#[not to cities. Therefore, they argue, it is unnecessary to adjust the predictive model to account for buildings. Network Affiliate Assn Supplemental Comments at 1-3. Some broadcasters contend that vegetation  S-changes seasonally and that both vegetation and land use change rapidly as land is developed."z yO$- d(#-ԍNetwork Affiliate Associations also assert that "there is no complete and reliable database in existence for  d(#buildings on a national basis." They also contend the USGS database provides insufficient detail to be of use in  {O&- d(#Jsignal strength predictions. Network Affiliate Assn Supplemental Comments at 1-4; and ex parte comments by Fox Network/News Corporation on January 5, 1999."&,l(l('"Ԍ "'X,l(l(,,%"Ԍ  S- R83.` ` We conclude that land use and land cover affect signal intensity at individual locations  d(#and should be used in the ILLR when an appropriate application develops. The United States Geological  Sg- d(#MSurvey maintains a Global Land Information System ("GLIS")}gXz {O_-ԍSee USGS Web page at < http://edcwww.cr.usgs.gov/Webglis/glisbin/glismain.pl >.} database on land use and land cover  d(#=indicating features such as vegetation and manmade structures. We believe that this information is both  d(#credible and useful. We acknowledge that larger buildings are usually found in urban areas and Congress  d(#[expected that the SHVA would primarily benefit rural consumers, but the definition of "unserved" is not  d(#zexplicitly limited to those consumers. The statute does not impose a mileage limitation or distinguish  d(#between urban and rural households. While we expect the model to include land use and land cover, we  d(#are not aware of a standard means of including such information in the ILLR that has been accepted by  d(#lthe technical and scientific community. When an appropriate application has been developed and  d(#.accepted, this information will be included in the ILLR. We challenge interested parties to develop such an application that more accurately reflects the signal intensity at an individual location.  S6 - RS84.` ` Interference. The LongleyRice model as used in the DTV Allotment proceeding is  d(#capable of predicting interference from nearby television stations. We believe that the model we endorse,  d(#ILLR, should include signal interference so that it will more accurately predict picture quality. We  d(#!acknowledge that interference is not formally included in the measurement methodology we have  Sk- d(#established in this Order, primarily because of the difficulties that would be created if we required testers  S9- d(#to attempt to measure for it.F9z {O-ԍSee  57 supra.F However, all sides have acknowledged that interference affects picture  d(#quality, and we believe that, in contrast to the measurement methodology, interference can be reliably included in the predictive model, and so it should be included to create more accurate results.  Sm- T85.` ` Error Codes. Some satellite carriers have argued strongly for alleviation of the problems  d(#presented by error codes (KWX=3) that the LongleyRice model sometimes presents after analysis of  d(#signal intensity at particular locations. Error codes result when the model makes a prediction of signal  d(#.intensity, but essentially rejects the prediction for a reason that may or may not be significant. Hatfield and Dawson, in their Engineering Statement accompanying the SBCA Comments, describe error codes:   `XX` ` In circumstances where the program's capabilities are exceeded,  `9[Longley-Rice 1.2.2] cannot compute a result that falls within its  ``confidence' limits, and therefore returns an error code. The [DTV]  `(version of the program assumes service (that is, signal above the desired  Sp-threshold) for these conditions.7p|z {O!-ԍId. at 7.7x`  d(#They explain that these drawbacks are trivial for DTV allotment and service analysis, but in the SHVA  d(#situation, "it is manifestly unjust at those locations where propagation path impairments may result in input  d(#=parameter variations which cannot properly be calculated by Longley-Rice 1.2.2 [and] its use for SHVA  Sq- d(#compliance testing is unsupportable."1qz {O'-ԍId.1 Broadcasters respond that this is a "nonissue." NAB claims that  d(#=PrimeTime 24 wants a household automatically deemed "unserved" if the program returns an error code.  d(#The NAB asserts that this contradicts the advice offered by SBCA's engineers, Hatfield & Dawson, to  S- d(#ignore the error codes as if they were a "false alarm."8z yO-ԍNAB Reply at 30.8 The Affiliates Association also contends that the  d(#error codes are false alarms that are not built into the LongleyRice model and are ignored by the DTV  S4- d(#Lversion of LongleyRice.K4Xz yO,-ԍNetwork Affiliate Assn Reply at 40.K We conclude that a party should either accept the prediction by ignoring the  S- d(#error code or test the result with an onsite measurement. z yO - d(#ԍAs Hatfield and Dawson noted, the DTV implementation of LongleyRice errs on the side of broadcasters by  d(#assuming service. If we change the model's assumption of service so that it assumes no service, we risk shifting  d(#Kthe satellite carriers' burden of proving (through actual testing) that a household is "unserved" in such a way that appears to contravene the statute. If the result is accepted and is high enough  d(#to predict service, the household shall be classified as served. If the result is low enough to predict lack of service, the household shall be classified as unserved.  S5- U86.` ` TIREM. Several satellite carriers have asked the Commission to endorse the TIREM  S- d(#predictive model instead of LongleyRice.z {Os-ԍSee, e.g., SBCA Comments at 16; Echostar Comments at 9; and NRTC Comments at 2124. It was developed by the Joint Spectrum Center of the  S- d(#lDefense Department to test specific paths with complex geometry.QXb z yO- d(#JԍThe original version of TIREM was developed by the Electromagnetic Compatibility Analysis Center (ECAC)  d(#within the Defense Department in the 1960s and has continued to be modified by that organization. ECAC's name was recently changed to the Joint Spectrum Center.Q News Corporation and the  d(#Corporation for Public Broadcasting have used one version of this model to examine their stations'  Sj - d(#ycoverage.j z {O- d(#ԍEx parte presentation by Fox/News Corporation (January 5, 1999); SBCA Comments, Hatfield & Dawson Engineering Statement at 8. However, the NAB's engineering consultant, Jules Cohen, rejects the model, contending that  d(#=there are many versions of TIREM, that it is unclear which version is recommended by satellite carriers,  S - d(#yand that the TIREM version that is discussed most often is proprietary. z {O- d(#.ԍEx parte presentation by the NAB (January 21, 1999). See also Network Affiliate Assn Supplemental Comments at 910. He also states that TIREM's  d(#proponents have provided little data on which to examine the propriety of using TIREM in the SHVA  S - d(#context.1 6z {Ot -ԍId.1 The Affiliate Associations add that the proprietary version would cost $500,000 to adapt for  Sk- d(#purposes of the SHVA.1kz {O"-ԍId.1 They also assert that neither the Commission nor the broadcast and satellite  d(#industries have extensive experience with TIREM, especially when compared to the experience the Commission already has with LongleyRice.   S- V87.` ` We believe that TIREM shows promise as a tool for predicting signal intensity at  d(#individual locations, but we decline to endorse it at this time for several reasons. NTIA has confirmed  d(#the concerns raised by some commenters concerning the public availability of a standardized and useful"9)Z,l(l(,,"  S- d(#version of TIREM.!z {Oh- d(#;ԍSee Letter to William Kennard from Larry Irving, Assistant Secretary of Commerce for Communications and  {O2-Information, at 2 n.6 (January 29, 1999) (ex parte filing in CS Docket 98201) ("NTIA TIREM Letter").! For example, the NTIA states that the latest version of TIREM may not be readily  S- d(#yavailable outside of eligible government agencies due to federal export restrictions.$z {O- d(#ԍSee NTIA TIREM Letter at 2 n.6, describing TIREM Version 4 and noting its limited distribution pursuant  {O[-to the Arms Control Act (22 U.S.C. 2751, et seq.) or Executive Order 12460. These impediments  d(#to access and use would severely impede TIREM's usefulness to the industries and to consumers. Further,  d(#there is not enough information regarding which, if any, version would work best in the SHVA context.  d(#We are unaware of any empirical information demonstrating that publicly available applications of TIREM  d(#are substantively more accurate than the ILLR. Indeed, the NTIA has run tests comparing the publicly  d(#available version found on its Internet site with both the Commission's traditional Grade B contour  S- d(#projections and a version of LongleyRice similar to ILLR.Iz {O -ԍSee NTIA TIREM Letter at 2.I The NTIA created a chart of sample  d(#contours for 16 designated market areas and accompanying maps that suggest that, in many cases, TIREM  S5-Version 3 predicts a station service area larger than the Commission's traditional Grade B contour.c5z {O- d(#ԍId. For example, for WBTV3 in Charlotte, the traditional Grade B contour encompasses 1,132,000  d(#Zhouseholds, the TIREM Version 3 contour encompasses 1,541,000 households, and the contour created with the  d(#,NTIA's variation of LongleyRice encompasses 1,111,000 households. TIREM Version 3 is the one available from  {OA- d(#ZNTIA's website and appears to be the version advocated by SBCA. See SBCA ex parte Comments of January 26, 1999, statement by Hatfield & Dawson at 1.c  S- nW88.` ` In contrast to TIREM, the Commission has many years of experience using and evaluating  d(#the LongleyRice model. TIREM and LongleyRice consider the same factors: "frequency, atmospheric  Si - d(#conditions, the electrical parameters of the earth, and the shape of the terrain between the two points."i z {O-ԍSee SBCA ex parte submission of January 26, 1999, Hatfield and Dawson statement at 12.  d(#The difference between the models is the algorithm used to consider the factors. Neither model's source  d(#code accounts for vegetation or buildings, but both models could be run including this data, as ILLR will  d(#[be. Further, we are increasing the accuracy of the LongleyRice model for the purpose of predictions for  d(#individual locations by requiring that terrain elevations be examined every onetenth kilometer. In light  d(# of the significance and weight conveyed by the Commission's endorsement of a particular model, we  d(#=believe that the ILLR model will provide most, if not all, of the same benefits claimed for TIREM by its  S-proponents while avoiding its current potential flaws."X z {O- d(#KԍSee SBCA Comments, Hatfield & Dawson Engineering Statement at 11 (list of advantages of TIREM over  d(#KLongleyRice 1.2.2, including more sophisticated calculation of loss due to terrain obstructions, minimization of  d(#"abrupt discontinuities in calculated loss along a path," and ability to handle receiving sites that are close to obstructions without issuing error codes). "*B,l(l(,,"Ԍ S- E.` ` Loser Pays  S-  X89.` ` The SHVA contains a "loser pays" mechanism that allows a party to recover the cost of  Sg- d(#conducting a signal measurement at a subscriber's household.gz yO- d(#ԍ17 U.S.C.  119(a)(9) (loser pays for signal intensity measurement; recovery of measurement costs in a civil action). At the present time, the loser pays  d(#>mechanism only applies when parties are in litigation. Under the current law, if a broadcast network  d(#station questions whether a subscriber is unserved, an actual measurement at the subscriber's household  S- d(#may be conducted by either the satellite carrier or broadcaster to determine eligibility.X z yO - d(#-ԍThe statute also provides that if a network station makes a "reasonable attempt" to conduct a test but the  d(#Yhousehold denies the station access to conduct the test, and the station cannot otherwise conduct a test, the satellite carrier must terminate network service to that household. 17 U.S.C.  119(a)(10). If a measurement  d(#shows that the household is unserved, the broadcaster must pay the cost of the test. Similarly, if the test  d(#shows that the household is served, the satellite carrier must assume the cost of the test. From 1994 to  d(#1996, the SHVA had "transitional rules" that included a "loser pays" mechanism different from the one  S- d(#.currently in effect.@z {O- d(#ԍSee 17 U.S.C.  119(a)(8)(B)(ii) and (C)(ii). Section 119(a)(8) expired on December 31, 1996. Satellite Home  {O-Viewer Act of 1994,  6(c), Pub. L. 103369 (Oct. 18, 1994). This "loser pays" mechanism was not confined to the context of civil litigation.Ez yO>- d(#ԍ17 U.S.C.  119(a)(8)(B). A network station could challenge a satellite carrier regarding whether a particular  d(#-subscriber was unserved. The satellite carrier could respond to the challenge by either terminating the subscriber  d(#Jor conducting a signal test at the challenged household. If the test found that the household was served, the satellite  d(#<carrier was required to terminate service. If the test found that the household was unserved, the station that had  d(#challenged the service was required to reimburse the satellite carrier for the cost of the test The SHVA also created a 5% cap on the number of challenges that stations could require and be compensated for. 17 U.S.C.  119(a)(8)(C). E   S -  Y90.` ` In light of the Miami and Raleigh court findings that satellite carriers have signed up  d(#millions of people who are served, it appears that the loser pays mechanisms have not been effective in  S6 - d(#discouraging the enrollment of ineligible subscribers.|6 z {O- d(#,ԍCBS v. PrimeTime 24, Final Ruling, slip op. at 3637. The permanent injunction in the Miami case specifies  d(#that the loser pays provision in the SHVA shall apply to the "reasonable costs of tests" conducted pursuant to the  d(#injunction.Miami Final Judgment and Permanent, slip op. at 24. Tests are an option provided by the injunction  d(#if PrimeTime 24 wants to provide network programming by satellite to a household within the Grade B area of the  d(# LongleyRice propagation maps. Alternatively, PrimeTime 24 may obtain a written waiver from the affected station.  d(#In the absence of either a waiver or signal test results showing the household is unserved, PrimeTime 24 is prohibited  {O-from providing network service by satellite to any household with the LongleyRice predicted Grade B area. Id. The record is unclear on the reason for this  d(#failure, but anecdotal evidence suggests that both satellite carriers and broadcasters are disinclined to  d(#-conduct tests, even when they are likely to win, because the tests could annoy their customers and generate illwill.  S7- Z91.` ` Some commenters endorse the current loser pays mechanism in the SHVA.7Xz {O/%- d(#ԍSee, e.g., NAB Reply at 44; Media Venture Management Comments at 3; ETAI at 26; Network Affiliate Associations Reply at 71. Several  d(#kbroadcasters have noted that the privatelynegotiated settlement agreement between broadcasters and"+,l(l(,,"  S- d(#Primestar/Netlink includes a "loser pays" arrangement that does not require civil litigation.%z {Oh- d(#;ԍSee, e.g., Association of America's Public Television Stations Comments at 10; Network Affiliate Assn Reply  {O2-at 6872 and Exhibit B, Primestar/Netlink Agreement at Schedule 7; see also 66 supra.% A few of  d(#the satellite carriers criticize the SHVA's current loser pays requirement, arguing that it does not  d(#?adequately decrease the motivation for broadcasters to bring numerous challenges against satellite  Sg- d(#\carriers.M$z {O^-ԍSee, e.g., DirecTV Reply at 14.M They advocate a "challenger pays" mechanism in which the party challenging a predictive  S4- d(#Kmodel's presumptive result would bear the cost of the test regardless of the outcome.4z {O - d(#ԍSee, e.g., DirecTV Comments at 26; DirecTV Reply at 1314; NRTC Comments at 23; SBCA Comments at 18. Broadcast industry  S-commenters oppose "challenger pays" as unfair.z {O - d(#ԍSee, e.g., NAB Reply at 4546; Network Affiliate Assn Reply at 6368 (satellite carriers' attempt to turn loser  d(#pays into "challenger pays" is another example of overreaching and greed; presumption would shift the burden of  d(#<proving eligibility onto local stations and away from satellite carriers contrary to the SHVA; would give satellite  d(#xcarriers an incentive to be unreasonable because there would be no economic downside to forcing a broadcaster to test an "obviously served" household that had been predicted as unserved).  S-  [92.` ` The loser pays mechanism is part of the SHVA, and the Commission has no authority to  d(#change this mechanism or to promulgate regulations that conflict with it. We believe that the  S5- d(#.Commission's endorsement of a more reliable predictive model in this Order will allow the existing loser pays mechanism in the SHVA to work more effectively in civil actions. ` `  Sj -? III. FUTURE OPTIONS ă  S - a\93.` ` The resolution of the issues surrounding delivery of broadcast network signals over  S - d(#satellite should not end with this Order. There are several, often competing, public policies involved in  d(#lthe future actions that we discuss below. The value of local broadcasting in this country has been  d(#recognized time and again by Congress and the Commission. Local television stations play a vital role  d(#in delivering news, weather, and public affairs information to their local communities. The growing  d(#ycompetition between DBS and cable, however, benefits consumers by giving them more choices to watch  d(#what they want and by creating new and higherquality services. DTH satellite carriers have proven to  d(#>be the most successful competitors to incumbent cable companies, but they still serve only 9 million  Sm- d(#households, which is only between 10% and 15% of the multichannel video programming market.m z {O- d(#ԍSee Annual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, Fifth  {O -Annual Competition Report, CS Docket No. 98102, FCC 98335 at  6, 12 (1998). One  d(#\significant reason consumers give for not considering satellite programming service is the difficulty of  d(#getting seamless broadcast network service. Congress has informally asked for our opinion on options  d(#to improve the SHVA and Communications Act to better serve consumers. In response to these requests, we identify some possible changes Congress could consider. This list is not meant to be exhaustive.  ",,l(l(,,"Ԍ S- X A.X` ` LocalintoLocal (#`  S- ]94.` ` Congress could consider changes to copyright law to allow satellite companies to provide  Sg- d(#jlocal television stations to local markets. Cable companies already do this, to their distinct advantage vis  S5- d(#a vis the satellite carriers. Broadcasters support localintolocal legislation because they do not fear losing  S- d(#=their audiences and the advertising dollars that follow.z {Ok- d(#ԍSee, e.g., NAB Comments at 51; Walt Disney Co. Comments at 2728; Cordillera Communications Comments at 15. Some satellite carriers accept localintolocal  d(#legislation because it gives them a limited right to provide their subscribers with services those subscribers  S- d(#want.Z"z yO_ - d(#ԍIn testimony before the Antitrust Subcommittee of the Senate Judiciary Committee on January 27, 1999,  d(#;EchoStar's Charlie Ergen stated that surveys have found 8 of 10 potential satellite customers don't buy because they  {O -will not be able to receive local signals. Reported in Communications Daily, January 28, 1999. Localintolocal satisfies consumers' demands for broadcast network service via satellite without  d(#Nharming localism. Localintolocal also makes satellite carriers more attractive to consumers, thus  d(#increasing their competitive standing with cable companies. However, localintolocal cannot provide the  d(#solution for every community in the immediate future, due to limitations in the satellites' capacity to carry  d(#every local channel. EchoStar recently predicted that with new spectrum, and without full must-carry  S - d(#requirements, it will only be able to serve 20 major cities within the next three years. Dz yO- d(#ԍCharlie Ergen Testimony before the Antitrust Subcommittee of the Senate Judiciary Committee, January 27,  {OJ-1999, as reported in Communications Daily, January 28, 1999. Those cities cover  d(#about half the United States' population. Smaller cities would not be able to receive service, even under  d(#the best scenario, for about 5 years. Viewers who live in communities where localintolocal service is  d(#unavailable will need other solutions, including DirecTV's practice of selling overtheair antennas with  d(#their satellite dishes. However, for those that can receive local network stations via satellite, localinto d(#local provides a partial solution that should address the needs of consumers and the broadcast and satellite  Sl-industries, as well as promote competition to cable.  S9-  S-X B.X` ` Change from the Grade B Signal Intensity Standard (#`  S-  n^95.` ` We have noted that the Grade B signal intensity standard was originally designed to depict  d(#La television station's service area, and that it may not address all the factors that determine the quality of  d(#la consumer's television picture. This is especially true if one assumes that consumers have higher  d(#expectations for their television picture than they did in the 1950s and that environmental changes increase  d(#Mthe effects of the factors that Grade B cannot easily address, such as ghosting and signal interference.  d(#Although we believe that the Grade B standard is still useful for determining signal strength and signal  d(#intensity, there may be a better, but still objective, standard that could be developed for identifying  d(#unserved households. The SHVA, however, prevents the Commission from exploring an alternative  d(#standard because it explicitly requires the use of Grade B to measure signal intensity and determine  d(#whether a household is unserved. This undertaking would demand considerable time and significant government and industry resources. ` `  S<-X C.X` ` 90Day Waiting Period (#`  S- ~_96.` ` Before receiving satellitedelivered broadcast networks, the SHVA requires an unserved  d(#=consumer who subscribes to cable to terminate that service and wait for 90 days. Once the cable service  d(#ends, the consumer then would face 90 days with no acceptable network service nothing over cable,"p-,l(l(,,!"  d(#>unattainable overtheair, and not yet available via satellite. This requirement discourages a potential  d(#satellite consumer from terminating his or her cable service. We believe that elimination of the waiting period should be considered.  S4- D.` ` Predictive Model and Loser Pays Mechanism (#`   S-  `97.` ` The "loser pays" mechanism in the SHVA holds promise for helping to resolve or avoid  d(#the disputes that arise under the law, but it currently applies only when the parties are engaged in civil  d(#Mlitigation over the eligibility of subscribing households to receive broadcast network programming via  d(#jsatellite. We believe the loser pays mechanism would be more effective if it also applied before litigation  d(#commences and if used in conjunction with a predictive model. Initially, we suggest that clear statutory  d(#.acceptance of prediction models for creating rebuttable presumptions of service or lack of service would  S - d(#[add certainty to the entire SHVA process. The ILLR that we endorse in this Order will reduce mistakes  d(#when predicting a household's status as served or unserved and will therefore allow parties to be more  d(#confident in the predicted result and less inclined to conduct or demand a test. A broadly applied loser  d(#Mpays mechanism that allocates the cost of testing on the party in error, in conjunction with this more  d(#reliable prediction model, would likely give satellite carriers an economic incentive to avoid enrolling  d(#consumers who are predicted to be served, and to discourage broadcasters from challenging subscribers  d(#=who are predicted as unserved. Less testing means less burden and inconvenience for the industries and  d(#consumers. Fewer challenges and disputes would reduce the number of consumers who are angered and inconvenienced by the operation of the SHVA.  S-   Sl-+ IV. PROCEDURAL MATTERS ă  S- Aa98.` ` To minimize possible confusion in connection with the injunction scheduled to take effect  S- d(#on February 28, 1999, that will affect more than 700,000 satellite subscribers, this Report and Order will  d(#become effective upon publication in the Federal Register. We find good cause exists under the  Sn- d(#Administrative Procedure Act ("APA") to have the rule adopted in this Report and Order take effect upon  S<- d(#Lpublication in the Federal Register pursuant to section 553(d)(3) of the APA.Z<z yO- d(#ԍThe APA generally requires publication in the Federal Register of substantive rules 30 days prior to their  d(#effective date but permits substantive rules to become effective with less than 30 days advance publication for good  {O4-cause. 5 U.S.C.  553(d)(1) and (3). See also 47 C.F.R. 427(b).  We believe that making  S - d(#the Report and Order and rule effective upon publication in the Federal Register will eliminate any  S- d(#confusion should the court in CBS et al. v. PrimeTime 24 wish to issue a supplemental order in light of  S-the conclusions in this Order.kz {O/-ԍSee CBS v. PrimeTime 24, Final Ruling, slip op. at 56.k  S@- b99.` ` Paperwork Reduction Act of 1995 Analysis. The requirements adopted in this Report and  S- d(#Order have been analyzed with respect to the Paperwork Reduction Act of 1995 (the "1995 Act") and  d(#found to impose new or modified information collection requirements on the public. The Commission  d(#has requested Office of Management and Budget ("OMB") approval, under the emergency processing  d(#Lprovisions of the 1995 Act (5 C.F.R.  1320.13), of the information collection requirements contained in  SC-this Report and Order.  S - c100.` ` Regulatory Flexibility Act Analysis. The regulatory flexibility analysis is found in Appendix A, attached."!.|,l(l(,,%"Ԍ S- ԙd101. ` ` Ordering Clauses. IT IS ORDERED , pursuant to Sections 1, 4(i), 4(j) of the  d(#Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), and 154(j); and Section  S- d(#/  119(d)(10)(a) of the Copyright Act, 17 U.S.C.  119(d)(10)(a), the terms and rule of this Report and  Si- d(#.Order ARE ADOPTED . The amendments to 47 C.F.R.  73.686 shall become effective upon date of  S7-publication of this Report and Order in the Federal Register.  S- "e102.` ` IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference  S- d(#Operations Division, SHALL SEND a copy of this Report and Order, including the Final Regulatory  d(#!Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in  d(#accordance with paragraph 603(a) of the Regulatory Flexibility Act, Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).  Sm -` `  hhCFEDERAL COMMUNICATIONS COMMISSION X` `  hhCMagalie Roman Salas(# ` `  hhCSecretary" /,l(l(,,"  #wZ   / > #\  P6G; P#Appendix A # &a\  P6G;r&P#у  Sh- 2Final Regulatory Flexibility Analysis ă  v !As required by the Regulatory Flexibility Act ("RFA") an Initial Regulatory Flexibility Analysis  S- d(#("IRFA") was incorporated into the Notice of Proposed Rulemaking ("NPRM") in this proceeding. The  d(#Commission sought written public comment on the possible impact of the proposed policies and rules on  Sj- d(#small entities in the NPRM, including comments on the IRFA. This Final Regulatory Flexibility Analysis ("FRFA") in this Report and Order ("Order") conforms to the RFA.  S- A.` ` Need for and Objective of the Rules  Sl - 2 1. 1. 1. a.(1)(a) i) a)f I. A. 1. a.(1)(a) i) a) I. A. 1. a.(1)(a) i) a) 1 A. 1. a.(1)(a) i) a) 1 A. 1. a.(1)(a) i) a) I 1 1. a.(1)(a) i) a)1.` ` In this Order, the Commission responds to Petitions for Rulemaking filed by the National  d(#Rural Telecommunications Cooperative and EchoStar Communications Corporation requesting that the  d(#Commission address the methods for determining whether a household is "unserved" by network television  S -stations for purposes of the 1988 Satellite Home Viewer Act.A z yO;-ԍ17 U.S.C.  119.A  Sm- B.` ` Legal Basis  S-  2.` ` This Order is authorized under Sections 1, 4(i), 4(j) of the Communications Act of 1934,  d(#/as amended, 47 U.S.C.  151, 154(i), and 154(j) and Section 119(d)(10)(a) of the Copyright Act, 17 U.S.C.  119(d)(10)(a).  S;- C.` ` Summary of Significant Issues Raised by the Public Comments in ` ` Response to the IRFA.  S-  3.` ` Small Cable Business Association (SCBA) filed comments regarding the possible impact  d(#of this proceeding on small cable operators. SCBA contends that since small cable and satellite carriers  d(#Ndraw from the same customer base, any Commission action broadening the "unserved" household  d(#definition could adversely affect small cable operators. SCBA contends that its members represent an  d(#important link in the distribution of local programming, especially in rural areas, and should not be  d(#overlooked in this proceeding. SCBA does not object to satellite delivery of broadcast network signals,  d(#so long as satellite providers are required to provide carriage of all broadcast signals within a single  S=- d(#community. National Association of Broadcasters (NAB), and others, maintain that any expansion of  d(#unserved viewers could have a substantial impact on television broadcast stations serving smaller markets.  S- d(#The ability of these stations to purchase programming and to serve their viewers would be impacted by  d(#lower advertising revenues should the Commission's actions dramatically expand the numbers of unserved  d(#households in their market place. National Rural Telecommunications Cooperative urges the Commission  d(#kto revisit the conclusion in its IRFA that because small businesses do not have the financial resources necessary to become DBS licensees, none will be affected by the proposed action. " 0X,l(l(,,'$"Ԍ S-  B&\Z & B&\Z D.` ` Description and Estimate of the Number of Small Entities To  S-` ` Which the Rules Will Apply  Sg- 4.` ` The RFA directs the Commission to provide a description of and, where feasible, an  S4- d(#estimate of the number of small entities that will be affected by the proposed action.G4z yO-ԍ5 U.S.C.  604(a)(3). G The RFA defines  d(# B&\Z & B&\Z the term "small entity" as having the same meaning as the terms "small business," "small organization,"  S- d(#and "small business concern" under Section 3 of the Small Business Act.@Xz yO-ԍ5 U.S.C.  604(a)(3).@ Under the Small Business  d(#Act, a small business concern is one which: (1) is independently owned and operated; (2) is not dominant  Sh- d(#zin its field of operation; and (3) satisfies any additional criteria established by the SBA.;hz yO -ԍ15 U.S.C.  632.; The action taken in this Order will affect television broadcasting licensees and DTH satellite operators.   S- n5.` ` Television Stations. The rules in this Order will apply to television broadcasting licensees,  d(#and potential licensees of television service. The SBA defines a television broadcasting station that has  Sj - d(#\no more than $10.5 million in annual receipts as a small business.j xz yO-#X\  P6G;QwP#э13 C.F.R.  121.201, Standard Industrial Code ("SIC") 4833 (1996). Television broadcasting stations  d(#consist of establishments primarily engaged in broadcasting visual programs by television to the public,  S - d(# except cable and other pay television services.X z yO- d(##X\  P6G;QwP#эEconomics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS OF  yOt- d(#TRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92S1, Appendix A9 (1995) ("1992  yO<-CENSUS OF TRANSPORTATION"). Included in this industry are commercial, religious,  S - d(#educational, and other television stations.z ( z {O- d(#<#X\  P6G;QwP#эId. See also OMB SIC Manual at 283, which describes "Television Broadcasting Stations (SIC Code 4833) as:  XEstablishments primarily engaged in broadcasting visual programs by television to the public,  mexcept cable and other pay television services. Included in this industry are commercial, religious,  meducational and other television stations. Also included here are establishments primarily engaged in television broadcasting and which produce taped television program materials. Ƥ Also included are establishments primarily engaged in  S - d(#television broadcasting and that produce taped television program materials. jz yO-#X\  P6G;QwP#э1992 CENSUS OF TRANSPORTATION,  Series UC92S1, Appendix A9. Separate establishments  d(#primarily engaged in producing taped television program materials are classified under another SIC  S8- d(#number.28z {O"- d(##X\  P6G;QwP#эId. SIC 7812 (Motion Picture and Video Tape Production); SIC 7922 (Theatrical Producers and Miscellaneous  yO#-Theatrical Services (producers of live radio and television programs).  2 There were 1,509 television broadcasting stations operating in the nation in 1992.y8Tz yO,%-#X\  P6G;QwP#эFCC News Release No. 31327, Jan. 13, 1993.y That  d(#number has remained fairly constant as indicated by the approximately 1,579 operating full power"1,l(l(,, "  S- d(#ytelevision broadcasting stations in the nation as of May 31, 1998.z {Oh-#X\  P6G;QwP#эSee Broadcast Station Totals As Of May 31, 1998, FCC News Release, June 19, 1998. In addition, as of October31, 1997,  S- d(#\there were 1,880 low power television broadcasting ("LPTV") broadcasting stations that may also be  S- d(#affected by our proposed rule changes.Zz yO-#X\  P6G;QwP#эGiven the nature of LPTV stations, we will presume that all LPTV's qualify as small entities. For 1992:z {O$- d(##X\  P6G;QwP#эCensus for Communications' establishments are performed every five years ending with a "2" or "7". See  yO-Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce.: the number of television broadcasting stations that  Sg-produced less than $10.0 million in revenue was 1,155 establishments.XgDz yOK - d(##X\  P6G;QwP#эThe amount of $10 million was used to estimate the number of small business establishments because the  d(#relevant Census categories stopped at $9,999,999 and began at $10,000,000. No category for $10.5 million existed. Thus, the number is as accurate as it is possible to calculate with the available information. ` `  S- 6. ` ` DBS and other DTH satellite operators. The Commission has not developed a definition  d(# of small entities applicable to geostationary or nongeostationary orbit fixedsatellite or DBS service  d(#applicants or licensees. Therefore, the applicable definition of small entity is the definition under the SBA  d(#rules applicable to Communications Services, Not Elsewhere Classified. This definition provides that a  S6- d(#small entity is one with $11.0 million or less in annual receipts.N6d z yO:-ԍ13 C.F.R.  121.201, SIC Code 4899.N The number of employees working  d(#jfor a "small entity" must be 750 or fewer. According to Census Bureau data, there are 848 firms that fall  d(#junder the category of Communications Services, Not Elsewhere Classified that could potentially fall into  d(#the DTH category. Of those, approximately 775 reported annual receipts of $11 million or less and  Sj - d(#qualify as small entities.j z yO-ԍ1992 CENSUS OF TRANSPORTATION ,  Series UC92S1, Table 2D, Employment Size of Firms: 1992, SIC Code 4899. The proposed action in this Order applies to entities providing DTH service,  d(#including licensees of DBS services and distributors of satellite programming. There are four licensees  S - d(#of DBS services under Part 100 of the Commission's rules.C z {O(-ԍ47 C.F.R. 100 et seq.C Three of those licensees are currently  d(#!operational, and each of those licensees has annual revenues in excess of the threshold for a small business.  Sk-  S8-  ]E.` ` Description of Projected Reporting, Recordkeeping, and Other Compliance  S-Requirements (#`   S- 7.` ` The rules adopted today impose no requirement to file any information with the Federal  d(#Communications Commission. Parties who choose to conduct individual household measurements are required to reduce to memorialize their test observations and results.  S-   S- /F.` ` Steps Taken to Minimize Significant Economic Impact on Small Entities, and  S-Significant Alternatives Considered (#`   S:-  $8.` ` We believe that the rules we adopt today will have minimal impact on small television  d(#stations' ability to serve the public. The rule we adopt today has no impact on the number of viewers  d(#jwho are "unserved" or unable to receive the relevant television broadcast stations' signals, thus mitigating"2,l(l(,,"  d(#yany economic impact in the market place. The rule will primarily affect DTH satellite operators, carriers  d(#and distributors, as well as full power commercial stations that are affiliates of national networks. The  d(#latter businesses generally do not fall into the category of small entities. Any adverse effect on the  d(#satellite industry is primarily the result of SHVA itself, and the actions we take represent our efforts to  d(#maximize competition including competition by small businesses consistent with faithfully interpreting the Act.  S-   S- G.` ` Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rule  Sh-Changes (#`   S-9.` ` None. "3,l(l(,, "  #wZ  > #\  P6G; P#Appendix B # Xj\  P6G;XP#у  Sx- d(#E$ #&a\  P6G;r&P#73.686(d) Collection of field strength data to determine television signal intensity at an individual  SE-location cluster measurements.  S-X(1) Preparation for measurements. (#  Sz- v @X(i) Testing antenna. The test antenna shall be a standard halfwave dipole tuned to the visual carrier frequency of channel being measured.(#  S- v ^X(ii) Testing locations. At the location, choose a minimum of five locations as close as possible  v to the specific site where the site's receiving antenna is located. If there is no receiving antenna  v |at the site, choose the minimum of five locations as close as possible to a reasonable and likely  v Nspot for the antenna. The locations shall be at least three meters apart, enough so that the testing  v |is practical. If possible, the first testing point should be chosen as the center point of a square  v @whose corners are the four other locations. Calculate the median of the five measurements (in units of dBu) and report it as the measurement result.(#  SK- v AX(iv) Multiple Signals. If more than one signal is being measured (i.e., signals from different transmitters), use the same locations to measure each signal.(#  S- v X(2) Measurement Procedure. Measurements shall be made in accordance with good engineering  v practice and in accordance with this section of the Rules. At each measuring location, the following procedure shall be employed:(#  S- v X(i) Testing Equipment. Measure the field strength of the visual carrier with a calibrated instrument  v with a bandwidth of at least 450 kHz, but no greater than one megahertz. Perform an onsite  v calibration of the instrument in accordance with the manufacturer's specifications. The instrument  v must accurately indicate the peak amplitude of the synchronizing signal. Take all measurements  v with a horizontally polarized dipole antenna. Use a shielded transmission line between the testing  v ?antenna and the field strength meter. Match the antenna impedance to the transmission line, and,  v if using an unbalanced line, employ a suitable balun. Take account of the transmission line loss for each frequency being measured.(#  S- v X(ii) Weather. Do not take measurements in inclement weather or when major weather fronts are moving through the measurement area.(#  S- v |X(iii) Antenna Elevation. When field strength is being measured for a onestory building, elevate  v the testing antenna to 6.1 meters (20 feet) above the ground. In situations where the field strength  v is being measured for a building taller than onestory, elevate the testing antenna 9.1 meters (30 feet) above the ground. (#  S"- v X(iv) Antenna Orientation. Orient the testing antenna in the direction which maximizes the value  v oof field strength for the signal being measured. If more than one station's signal is being measured, orient the testing antenna separately for each station.(#  S%-X(3) Written Record shall be made and shall include at least the following:(# "&4,l(l(,,?*"Ԍ S- v @X(i) A list of calibrated equipment used in the field strength survey, which for each instrument,  v specifies the manufacturer, type, serial number and rated accuracy, and the date of the most recent  v calibration by the manufacturer or by a laboratory. Include complete details of any instrument not of standard manufacture.(#  v X(ii) A detailed description of the calibration of the measuring equipment, including field strength meters, measuring antenna, and connecting cable.(#  Sh- v X(iii) For each spot at the measuring site, all factors which may affect the recorded field, such as topography, height and types of vegetation, buildings, obstacles, weather, and other local features.(# X(iv) A description of where the cluster measurements were made. (# X(v) Time and date of the measurements and signature of the person making the measurements.(#  v 1X(vi) For each channel being measured, a list of the measured value of field strength (in units of  v @dBu and after adjustment for line loss and antenna factor) of the five readings made during the cluster measurement process, with the median value highlighted.(#" 5,l(l(,,"  #wZ=#\  P6G; P# Appendix C ă  X-# Xj\  P6G;XP#  Xx-#Xj\  P6G;XP#_ COMMENTS ă  X2-B(#҇#Xj\  P6G;XP#1.ABC, CBS, Fox, and NBC XTelevision Network Affiliate Assn  X-2.Aeder, Michael  X-3.A. H. Belo Corporation  X-4.Alexander, Dennis Jay  X-5.Allum, Raymond G.  X` -6.Association for Maximum Service XTelevision (MSTV)  X -7.Association of America's Public XTelevision Stations (APTS)  X -8.Association of Local Television XStations, Inc. (ALTV)  X-9.Arkansas Broadcasters Association  Xk-10.Bailey, Michael E.  XH-11.Baldridge, Susan  X%-12.Ball, Pamela  X-13.Bandy, Bo  X-14.Bandy, James D.  X-15.Barlean, John  X-16.Belina, Greg  Xv-17.Bell, Randy  XS-18.Benedek Broadcasting Corporation,   XChronicle Broadcasting Company,   Draper Communications, Inc., LIN   P Television Corporation, Midwest   o Television, Inc., Paxton Media   Group, Inc., PostNewsweek Stations,  X- ,sInc., Raycom Media,Inc., and   " Spartan Communications, Inc. (joint comments)  X-19.Biby Engineering Services P.C.  X-20.Blake, Baird A.  X-21.Blankenship, Penny  X -22.Bloom, Ray  X!-23.Boline, John  Xi"-24.Bowes, John E.  XF#-25.Bowman, Noel  X#$-26.Brechner Stations  X%-27.Brian, Tom  X%-28.Brooks Broadcasting LLC  X&-29.Brooks, Robert"&6,l(l(,,'"  X2-30.ppBrueggeman, William  X-31.ppBushway, Courtney D.  X-32.ppCadavid, Carlos  X-33.ppCalifornia Oregon Broadcasting  X-34.ppCantella, Vince  X-35.ppCantisano, Richard  X` -36.ppCapital of Texas Public XppTelecommunications Council(#p  X -37.ppCapitol Broadcasting Co., Inc.  X -38.ppCaprez, Randy R.  X -39.ppCatamount Broadcast Group  X -40.ppCathey, Ben H.  X-41.ppCBS Corporation  Xk-42.ppCedar Rapids Television Company  XH-43.ppCheever, Susan  X%-44.ppChitty, Louis  X-45.ppClark, Danny  X-46.ppClark, Ross L.  X-47.ppClear Channel Communications  X-48.ppCoffield, Frank  Xv-49.ppCoggins, Kevin  XS-50.ppConditt, Rebecca  X0-51.ppCordillera Communications, Inc.,   XppCosmos Broadcasting Corporation,   Cox Broadcasting, Inc., Independence   ` Television Company & Media General Broadcasting, Inc.(#p  X-52.ppCorporation for General Trade  X^-53.ppDavidson, Donald  X;-54.ppDeaner, Mark E.  X-55.ppDecisionmark Corp.  X-56.ppDirecTV, Inc.  X-57.ppDreyer, John H.  X -58.ppEchostar Communications Corp.  X!-59.ppEkart, Gary  Xi"-60.ppElam, John  XF#-61.ppElectronics Technicians Assn, Int'l.  X#$-62.ppEllsworth, Benjamin  X%-63.ppEntravision Holdings LLC  X%-64.ppFarris, Jr., Carl S.  X&-65.ppFestog, DavidH&6,l(l(,,'$'6(#26t(#l(l(,,H԰ X-ԙ66.Fisher Broadcasting, Inc.  X-67.Fox Broadcasting Company  X-68.Fulkerson, Jo  X-69.Gaines, Richard L.  Xt-70.Gant, Susan  XQ-71.Garner, James and Claudia  X.-72.Gilmore Broadcasting Corp.  X -73.Gocom Communications LLC  X-74.Godfrey, Chuck E.  X-75.Gonser, Tom  X-76.Granite Broadcasting Corporation  X -77.Grant Broadcasting Group  X\ -78.Green, Lyman C.  X9 -79.Greenwood, Bob and Sally  X -80.Griffith, Rebecca  X -81.Grimsley, Robert  X -82.Grocott, Terry P.  X-83.Gustafson, David H.  X-84.Hale, Gerald L.  Xg-85.Halstead, Roger D.  XD-86.Hamilton, Ralph B.  X!-87.Hammett & Edison, Inc.  X-88.Hammonds, Trevor G.  X-89.Harris, Charles  X-90.Hassid, Jack  X-91.Hauser, William  Xr-92.HearstArgyle Television, Inc.  XO-93.Heaton, Gigi  X,-94.Heggenstaller, Dennis R.  X -95.Henderson, T.A.  X-96.Herman, Tommy  X-97.Herndon, Bill  X-98.Hoffman, Joseph L.  X}-99.Holston Valley Broadcasting Corp.  XZ-100.Hubbard Broadcasting, Inc.  X7-101.Hunt, James B., Governor, N.C.  X-102.JME Media, Inc.  X-103.Johnson, Bobby J.  X -104.Jones, Cecile  X!-105.Jones, Claude P.  X"-106.KASW(TV)  Xe#-107.KEYCTV  XB$-108.KIEMTV  X%-109.King, Edward  X%-110.King, John E.  X&-111.Kirchner, Ken"&7,l(l(,,'"  X-112.ppKitchen, Kevin  X-113.ppKiralla, John S.  X-114.ppKKCOTV  X-115.ppKLAXTV  Xt-116.ppKnab, Terry  XQ-117.ppKnief, H.C.  X.-118.ppKohl, Steven  X -119.ppKuhn, David  X-120.ppLaboone, Michael W.  X-121.ppLacasse, Norman R.  X-122.ppLamco Communications, Inc.  X -123.ppLaquintano, Robert  X\ -124.ppLawrence, David R.  X9 -125.ppLeahy, Patrick (Senator)  X -126.ppLear, James G.  X -127.ppLee Enterprises, Inc.  X -128.ppLefevre, D. Meade  X-129.ppLenchus, Rachelle and Richard  X-130.ppLocal TV on Satellite (LTVS)  Xg-131.ppLouisiana Television Broadcasting XppCorp.(#p  X!-132.ppLowrie, Max  X-133.ppManning, Peter L.  X-134.ppMansfield, William T.  X-135.ppMaranatha Broadcasting Company  X-136.ppMarchino, Martha J.  Xr-137.ppMarlowe, Ronald J.  XO-138.ppMcCormack, Donald  X,-139.ppMcGinnis, Jr., Bryan H.  X -140.ppMcPherson, Jr., William C.  X-141.ppMedeiros, Victor  X-142.ppMedia Venture Management, Inc.  X-143.ppMeredith Corporation  X}-144.ppMiller, Ricky E. and Theresa J.  XZ-145.ppMobile Video Tapes, Inc.  X7-146.ppMontclair Communications  X-147.ppMontgomery Communications, Inc.  X-148.ppMoore, Jr., Donald L.  X -149.ppMorgan Murphy Stations  X!-150.ppMoyer, John  X"-151.ppMt. Mansfield Television, Inc.  Xe#-152.ppNamed State Broadcasters Assn  XB$-153.ppNatl Assn of Broadcasters (NAB)  X%-154.ppNational Broadcasting Co. (NBC)  X%-155.ppNational Communications, Inc.  X&-156.ppNational Football LeagueH&7,l(l(,,'$'7'7'l(l(,,H԰ X-ԙ157.National Rural Electric Coop. Assn.  X-158.National Rural Telecommunications XCooperative (NRTC)  X-159.Nelson, Bill  Xt-160.New Mexico Broadcasters Assn.  XQ-161.Newton, Mark  X.-162.NOE Corp. LLC  X -163.North Carolina and Virginia Assn Xof Broadcasters  X-164.Northpoint Technology  X-165.Ohanesian, Jay  X -166.Oliver, Dylan  X\ -167.Orton, Ralph  X9 -168.Pappas Telecasting, Inc., Morris   $ XNetwork, Inc., and Pikes Peak Broadcasting Company  X -169.Pegasus Communications Corp.  X-170.Peters, Jeremy  X-171.Porgal, John M.  Xg-172.Post Company  XD-173.Potaracke, Kelly  X!-174.Powell, C. Randy  X-175.Primestar Partners L.P.  X-176.PrimeTime 24 Joint Venture  X-177.Professional Service Assn. (PSA)  X-178.Radosta, Dino J.  Xr-179.Ragan, Jim  XO-180.Rasbury, Murry P.  X,-181.Raymond, Harry E.  X -182.Retlaw Enterprises, Inc.  X-183.Rhodes, Richard and Sharon  X-184.Ripley, Richard  X-185.Robinson, Alan T.  X}-186.Roney, T.J.  XZ-187.RoviraBurset, Raul A.  X7-188.Sanderson, E.H.  X-189.Satellite Broadcasting and XCommunications Assn. (SBCA)  X -190.Schick, Cynthia  X!-191.Schmidt, J.E.  X"-192.Schultz, William M.  Xe#-193.Seelinger, Brian M.  XB$-194.Shapiro, Edward L.  X%-195.Shockley Communications Corp.  X%-196.Small Cable Business Assn (SCBA)"%8,l(l(,,&"  X-197.ppSmall, Robert  X-198.ppSmith, Debra  X-199.ppSnell, Jr., Donald F.  X-200.ppStewart, David  Xt-201.ppSuperstar/Netlink Group, LLC  XQ-202.ppSutton, Robert  X.-203.ppSwain, Keith L.  X -204.ppTanner, Garth  X-205.ppTaylor, George W.  X-206.ppTennant, Raymond C.  X-207.ppTexas Television, Inc.  X -208.ppThompson, Dave  X\ -209.ppTraweek, Gary  X9 -210.ppTrodick, Marie J.  X -211.ppTV67, Inc.  X -212.ppVachal, Joel T.  X -213.ppVanpool, Gary C.  X-214.ppVirginia Broadcasting Corporation  X-215.ppWade, Randy  Xg-216.ppWallace, Jessica  XD-217.ppWallace, Vaughn  X!-218.ppWalt Disney Company  X-219.ppWarren, Ronald  X-220.ppWaterman Broadcasting Corp Xppof Florida(#p  X-221.ppWatson, Joe D.  Xr-222.ppWB Television Network  XO-223.ppWedel, James  X,-224.ppWeigel Broadcasting Co.  X -225.ppWest, Jeff  X-226.ppWheaton, Gordon  X-227.ppWiegand, John V.  X-228.ppWilliams, Gary O.  X}-229.ppWilmington Telecasters, Inc.  XZ-230.ppWithers Broadcasting Companies  X7-231.ppWoodruff, Rick  X-232.ppWright, John  X-233.ppWWNYTV  X -234.ppYoung, William A.H 8,l(l(,,f!$&8&8f!l(l(,,Hԯ"&8,l(l(,,'"  X-#G REPLY COMMENTS ă ^K#6X@`7M@#  X-\#Xj\  P6G;XP#1.ABC, CBS, Fox, and NBC Television Network Affiliate Associations  X-2.ACC Satellite TV  X-3. Association for Maximum Service Television (MSTV)  X-4.Association of Local Television Stations, Inc. (ALTV)  Xm-5. Bassett, Keith W.  XJ-6.Comanche County Memorial Hospital  X'-7.DirecTV, Inc.  X-8. Echostar Communications Corporation  X-9.Granite Broadcasting Corporation  X -10.Gray Communications System, Inc.  X -11.KXLTTV  Xx -12.McClure, Mary  XU -13.Mt. Mansfield Television, Inc.  X2 -14.National Association of Broadcasters (NAB)  X-15.National Rural Telecommunications Cooperative (NRTC)  X-16.Nebraska Television Network  X-17.New Mexico Broadcaster Association  X-18.Pappas Telecasting, Inc., Morris Network, Inc., and Pikes Peak Broadcasting Company  X-19.Pegasus Communications Corporation  X`-20.Primestar Partners L.P.  X=-21.PrimeTime 24 Joint Venture  X-22.Professional Service Association  X-23.Satellite Broadcasting and Communications Association (SBCA)  X-24.South Sacramento/Greenhaven Chamber of Commerce  X-25.Superstar/Netlink Group LLC  X-26.United Way of LawtonFort Sill  Xk-27.U.S. Copyright Office  X%-#n6X@`7o'&@# #Xj\  P6G;XP#2SUPPLEMENTAL FILINGS ă  X-1. ABC, CBS, Fox, and NBC Television Network Affiliate Associations (joint filing)  X-2.National Association of Broadcasters (NAB) "9,l(l(,,K"  X-5 LATEFILED COMMENTS ă  X-B(#B(#҇1.Allison, Lynda  X-2.Austin, Ada  Xt-3.Ball, Penny  XQ-4.Ballard, Wynette  X.-5.Barcus, Ralph E.  X -6.Barker, Francis  X-7.Barnes, Billy T.  X-8.Beard, Marcia  X-9.Blackledge, John  X -10.Blum, Vera  X\ -11.Blythe, Norma L.  X9 -12.Bostuck, William  X -13.Bowman, Jim  X -14.Bradley, Mrs. Homer C.  X -15.Brown, Sharon  X-16.Burgess, Sharon  X-17.Carlson, Christopher  Xg-18.Cary, Emily  XD-19.Clark, Mr. & Mrs. James  X!-20.Cook, Jim  X-21.Corbitt, James E.  X-22.Courtner, Robert  X-23.Cox, Don A. & Joyce A.  X-24.Craig, Joe & Rose  Xr-25.Crouse, Mrs. L.R.  XO-26.Cyrus, Christopher A.  X,-27.Daly, Robert  X -28.Daniels, Raymond  X-29.Davis, Pamela & Anthony  X-30.DeForest, Robert & Norma  X-31.Doty, Harvey L.  X}-32.Doyle, Sanford D.  XZ-33.Duchemin, Masena & James  X7-34.Engley, Thomas W.  X-35.Entman, F.V.  X-36.Erler, Paul W.  X -37.Farber, James F.  X!-38.Ferree, Connie  X"-39.Fike, Mabel M.  Xe#-40.Fisher, Thomas F.  XB$-41.Fisk, Orville & Barbara  X%-42.Floyd, Cathy L.  X%-43.Foley, Kathleen  X&-44.Frantz, Harold E."&:,l(l(,,'"  X-45.ppFulks, Charles O.  X-46.ppGallagher, Charles A.  Xt-47.ppGrand, Cey J.  XQ-48.ppGreen, Mr. & Mrs. Austin  X.-49.ppGriffey, Clyde L. & Cecilia PN  X -50.ppGrissom, Shirley  X-51.ppGuynn, Ruth  X-52.ppHedrick, James E.  X-53.ppHeit, Raymond & Shirley  X -54.ppHelleseth, T.L.  X\ -55.ppHerman, Gary & Glenna  X9 -56.ppHiddleston, W.M.  X -57.ppHodges, Ann V.  X -58.ppHoffman, Donald R. & Patricia A.  X -59.ppHoholek, Dolores  X-60.ppHollar, Turner  X-61.ppHolloway, James  Xg-62.ppHolmberg, Mr. & Mrs. Henry  XD-63.ppHooks, Elizabeth  X!-64.ppHopkins, Larry W.  X-65.ppHosler, Wilbur & Violet  X-66.ppJames, Trenton & Clark  X-67.ppJanson, Frederick C. Sr.  X-68.ppJensen, Russell L.  Xr-69.ppJohnson, Ann  XO-70.ppJohnson, J. Wayne  X,-71.ppJohnson, Martha  X -72.ppJones, Mark  X-73.ppJudge, Ralph D. & Sophia V.  X-74.ppK&B Electronics  X-75.ppKeaton, Mrs. Rose  X}-76.ppKeller, Dona J.  XZ-77.ppKieffer, Don  X7-78.ppKinnis, Kevin  X-79.ppKoci, Paul  X-80.ppKuehnl, Mrs. Shirley  X -81.ppKurtz, David  X!-82.ppKyler, Donald  X"-83.ppLaFever, Howard & Laura  Xe#-84.ppLandon, James A.  XB$-85.ppLayton, Edna  X%-86.ppLeaks, Robert  X%-87.ppLittle, Bill & Maxine  X&-88.ppLockard, Gary O.H&:,l(l(,,'$':%:%l(l(,,H԰ X-ԙ89.Long, Carl R.  X-90.Luce, Jack E. & Cynthia K.  X-91.Madsen, T.O.  X-92.Martin, James  Xt-93.Martin, Robert A.  XQ-94.Mazzeo, Robert J. (M.D.)  X.-95.McAlary, Shelly  X -96.McAlister, John H.  X-97.McBride, Lauren  X-98.McGarver, Herbert  X-99.McHale, Patricia & Charles  X -100.McKenzie, Bonnie  X\ -101.McLoughlin, David  X9 -102.McMullin, Frank  X -103.McNeil, Stanley D.  X -104.Meeks, James G.  X -105.Meigs, Rebecca H.  X-106.Menton, William G.  X-107.Miller, Dale  Xg-108.Miller, Forrest D.  XD-109.Miller, Frank N.  X!-110.Miller, Harold A.  X-111.Millhouse, Mr. & Mrs. Richard  X-112.Mitchell, Clair W.  X-113.Morse, Charles H.  X-114.Nichols, Lori  Xr-115.O'Dell, Janice G.  XO-116.Page, Desiree M.  X,-117.Parks, Mr. & Mrs. Joel  X -118.Patchen, Don & Betty  X-119.Perrin, Ron & Jeri  X-120.Perry, Earl  X-121.Peterson, Mr. & Mrs. Talbert  X}-122.Polhamus, Carol M.  XZ-123.Print, Mr. & Mrs. Howard B. II  X7-124.Pruitt, Nellie  X-125.Puma, Morris M.  X-126.Putnam, Joe & Judy  X -127.Pyle, Shirley S.  X!-128.Robertson, Jimmy R.  X"-129.Root, Charles  Xe#-130.Rutland, Mark & Robin  XB$-131.Sabitus, Mary  X%-132.Selwood, Eugene  X%-133.Scheck, Clifford  X&-134.Schlappi, Carl W. & Opal J."&;,l(l(,,'"  X-135.ppSchlenker, Ralph  X-136.ppSchuster, D.  X-137.ppSheets, Mr. & Mrs. Stanley  X-138.ppShipley, Robert  Xt-139.ppShipman, Roberta & Robert  XQ-140.ppSiebert, Carolin  X.-141.ppSplan, Mrs. Florence  X -142.ppSteele, Kenneth  X-143.ppStewart, Sandra  X-144.ppStromberg, Paul  X-145.ppSuit, Jim  X -146.ppSuma, Mark Daniel  X\ -147.ppTackett, Vilma  X9 -148.ppTamosaitis, John  X -149.ppTeaster, Lucille  X -150.ppThomas, Joe W.  X -151.ppThompson, Rector A.  X-152.ppTotman, Stan & Betty  X-153.ppTrent, Billy Earl  Xg-154.ppTroy, James R.  XD-155.ppTuttle, George Sr.  X!-156.ppTwaddle, Michael L.  X-157.ppTyrone, Jimmy W.  X-158.ppVanHorn, Robert & Lorraine  X-159.ppWagoner, Brenda  X-160.ppWarren, Joyce E.  Xr-161.ppWetmore, Vernon  XO-162.ppWhipple, Harrison  X,-163.ppWildberger, Owen & Susan  X -164.ppWilliams, Marcellus J.  X-165.ppWilkinson, Jahnice J.  X-166.ppWilson, Larry & Gina  X-167.ppWilson, William B.  X}-168.ppWoeppel, David W.  XZ-169.ppWolford, Brenda L.  X7-170.ppWood, Edna H;,l(l(,,$';';l(l(,,H԰  Y-  #Xj\  P6G;XP##Xw PE37XP#  Y- JOINT STATEMENT OF CHAIRMAN WILLIAM E. KENNARD  X-?  AND COMMISSIONER SUSAN NESS ă  v NToday the Commission takes several steps to help ensure that those consumers who  d(#cannot receive acceptable overtheair signals from their local broadcast stations have a lawful  d(#alternative means to receive network programming via satellite under the Satellite Home Viewer  d(#iAct. The Commission's ability to make significant changes in this area is constrained by the  d(#iterms of the SHVA, which says that only those viewers who cannot receive an "overtheair  d(#signal of grade B intensity" are considered "unserved" and therefore eligible to receive distant  d(#network signals. Thus, we could not, and have not, extended the SHVA to permit delivery of  Y] - d(#hsatellite network broadcast signals to consumers who can receive an adequate local overtheair signal.  v zBy our action today, however, we have created a more accurate method of identifying  d(#those consumers who are truly unserved within the meaning of the statute, and therefore eligible  d(#for satellitedelivered network programming. Our action will help not only those individual  d(#subscribers who, under other tests, might be considered to be "served" even though they cannot  d(#receive an acceptable television picture, but will better enable the DBS industry to become a true competitor to cable, which will help all consumers.   v kWe have tried to be as aggressive as possible consistent with Congressional intent  d(#in protecting American consumers in this order. Some commenters urged that we take the  d(#Jadditional step of changing the confidence factor in the predictive model that we endorse from  d(#50% to 90%. If we believed that changing the predictive model to include a 90% confidence  d(#factor would ensure that more unserved households would be able to get satellitedelivered  d(#network signals, we certainly would have voted to make this change. Indeed, at first blush, the  d(#hconcept of a 90% confidence factor seems appealing. However, as discussed in the Report and  d(#Order, adopting a 90% confidence factor would not ensure more accuracy, but rather would  d(#Ysignificantly overpredict the number of unserved households, undermining Congress's intent in  d(#the statute. The model the Commission endorses in this order which includes a 50%  d(#confidence factor is a more sound predictor of who is actually served and unserved. Thus,  d(#it is more likely to be relied upon by the parties and in turn will likely result in fewer actual measurements having to be taken, which is, after all, the purpose of using a predictive model.  v LWe have gone as far as we can under the SHVA to enable consumers to receive network  d(#<programming via satellite. A more comprehensive solution to this problem including, for  d(#Lexample, allowing delivery of local broadcast signals into local markets would require  d(#Congressional action. We look forward to working with Congress to facilitate robust  d(#Jcompetition between DBS and cable service providers, bringing more choices and lower prices  d(#Yin video programming to the American public, while not impairing the viability of overtheair broadcasting.  v We also call on the satellite and broadcast industries to cooperate in ensuring that consumers receive the service which they are entitled to receive under the SHVA."&<,l(l(,,!*"     X- TSTATEMENT OF COMMISSIONER HAROLD FURCHTGOTTROTH, ;DISSENTING IN PART  d(#"In re: Satellite Delivery of Network Signals to Unserved Households for Purposes of the Satellite Home Viewer Act  Y- v M I commend the Cable Services Bureau, the Office of Engineering and Technology, the  d(#Mass Media Bureau, and the International Bureau for their fine work on this Report & Order.  d(#Unfortunately, I cannot join Part III, which makes legislative recommendations to Congress regarding the delivery of network signals via satellite.  v As I have previously explained, I do not believe that, absent an express request from  d(#KCongress, making recommendations about how the law should be changed is an appropriate  Y - d(#function for the Federal Communications Commission. See, e.g, 1997 Report on the Status of  d(#Competition, 13 FCC Rcd 1034 (1998) (separate statement of Commissioner Harold Furchtgott d(#ZRoth). The Commission is bound to take the law as Congress makes it and to implement the  d(#law objectively; yet when we criticize extant statutes, enacted by Congress and signed into law  Yi- d(#xby the President, we draw that objectivity into doubt.  Moreover, as a creature of Congress' delegated authority, the Commission takes it direction from that body, not the other way around.  Y- v Even if it were appropriate for the agency to suggest to Congress how it ought to legislate  d(#(or how it has erred by enacting certain legislation), such suggestions could plausibly involve,  d(#Oat most, communications law and policy. This item, however, ventures with its  d(#Yrecommendations boldly into copyright law, an area in which the Commission has no expertise  Yt- d(#or authority, as the item itself implicitly acknowledges.  See supra at para. 28. We simply do  d(#not know where, and on what, we tread when we recommend a particular change in intellectual  d(#property rights. We simply do not fully understand what problems such a change might trigger  d(#Zin that body of law. If the Copyright Office made recommendations to Congress on how to  d(#write communications statutes, I do not think anyone would give them much weight. It seems  Y-to me that the converse is equally true.  Y- v  For these reasons, I would not have recommended legislative action to Congress in this item, nor would I have indicated that existing statutes are unfair or unwise.