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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Advanced Television Systems ) and Their Impact upon the Existing ) MM Docket No. 87-268 Television Broadcast Service ) SECOND MEMORANDUM OPINION AND ORDER ON RECONSIDERATION OF THE FIFTH AND SIXTH REPORT AND ORDERS Adopted: November 24, 1998 ; Released: December 18, 1998 By the Commission: TABLE OF CONTENTS Para. No. I. INTRODUCTION 1 II. BACKGROUND 3 III. PETITIONS FOR RECONSIDERATION 9 A. DTV Channels for Pending NTSC Applicants 9 B. Applicants Pending as of October 24, 1991 23 C. NTSC Station Modifications 28 D. Applications for New NTSC Stations 34 E. Maximization Requests 43 F. Antenna Beam Tilting 51 G. Use of Channel 6 for DTV Service 54 H. Requests for Changes in the Initial DTV Allotments 58 I. International Negotiations 94 J. Minimum Hours of Operation 95 K. Other Issues 99 IV. Procedural Matters 108 APPENDIX A- Petitioning and Opposing/Commenting Parties APPENDIX B- DTV Table of Allotments APPENDIX C- Supplemental Final Regulatory Flexibility Analysis APPENDIX D- Amendments to the Rules I. INTRODUCTION 1. By this action, the Commission addresses petitions for reconsideration of the Memorandum Opinion and Order on Reconsideration of the Fifth Report and Order (Service Reconsideration Order) and the Memorandum Opinion and Order on Reconsideration of the Sixth Report and Order (Allotment Reconsideration Order) in this proceeding. In the Service Reconsideration Order, we addressed petitions for reconsideration of our eligibility standards for the initial DTV channels and other rules and procedures for broadcasters to convert to digital television (DTV) service. In the Allotment Reconsideration Order, we addressed petitions for reconsideration of our decisions on a Table of Allotments for digital television (DTV) service, policies and rules for the initial DTV allotments, procedures for assigning those allotted channels, and plans for spectrum recovery. Development of the DTV Table of Allotments has been a complex process requiring the balancing of many policy and technical factors. Our principal goal in this proceeding has been to provide all eligible television broadcasters with a second channel that, to the extent possible, replicates the service area of their existing stations and to provide for the recovery of spectrum that will not be needed for DTV service. We have also sought, however, to accommodate the specific requests of individual broadcasters in this process wherever possible to the extent that such actions would not compromise our general policies and goals in the allotment of channels for DTV service. 2. In this action, we are generally reaffirming our DTV eligibility and allotment policies. We are, however, revising and clarifying certain of our DTV allotment policies in response to petitioners' requests. In particular, we are: 1) modifying our policy restricting requests for maximization of UHF DTV station power to 200 kW to provide flexibility for DTV licensees to request higher power where certain conditions are met; 2) clarifying our policy with respect to pending applications to modify existing analog, or NTSC, television facilities; and 3) clarifying our policy with respect to protection of allotments for proposed new NTSC stations. We are also making several adjustments to the DTV Table in response to requests of individual petitioners. These actions will resolve the remaining issues regarding our policies and rules for DTV and NTSC channel allotments. II. BACKGROUND 3. In the Fifth Report and Order, we adopted rules for implementation of DTV service by broadcasters, including: 1) eligibility standards for the initial DTV channels; 2) a construction schedule; 3) a requirement that broadcasters continue to provide free, over-the-air television service; and 4) a target date of 2006 for the completion of the transition; and 5) a simulcasting requirement phased in at the end of the transition. Our goals in this action were to preserve and promote free, universally available local broadcast television in a digital world, as well as advance spectrum efficiency and the rapid recovery of spectrum by fostering the swift development of DTV. With regard to eligibility in particular, as required under the provisions of the Telecommunications Act of 1996 (1996 Telecommunications Act), we limited eligible broadcasters to parties who, as of the date of issuance of the initial DTV licenses, are licensed to operate a television station or hold a permit to construct such a station, or both. 4. In the Sixth Report and Order, we adopted: 1) policies and plans for the establishment of an initial DTV Table of Allotments and the assignment of those allotments to eligible broadcasters; 2) an initial DTV Table that was developed using those policies and a sophisticated computer allotment system; and 3) plans for spectrum recovery. The initial DTV Table and assignment plan provides all eligible broadcasters with a second channel for use in transitioning to DTV service. We also attempted, to the extent possible, to provide broadcasters with DTV channels that will allow them to "replicate" the service areas of their existing NTSC operations, i.e., to provide DTV service to areas that are generally comparable to their existing NTSC service areas. The DTV Table was also designed to minimize all unavoidable interference to both existing analog TV and new DTV service. 5. In the Sixth Report and Order, we also provided for recovery of a portion of the spectrum now used by television broadcasting. In particular, the DTV Table facilitates the early recovery of the 60 MHz of spectrum now used for TV channels 60-69 (746-806 MHz), and also provides for recovery of additional spectrum at the end of the DTV transition period. Under this plan, all DTV channels will eventually be located in a core spectrum of VHF and UHF TV channels that are technically most suited to DTV operation. 6. In the Sixth Report and Order, we continued the secondary status of low power television (LPTV) and TV translator stations. However, we adopted a number of administrative and technical measures to minimize the impact of DTV implementation on low power operations. We also adopted policies and rules with respect to a number of other issues related to use of the initial DTV allotments and to the implementation of this new service. Finally, we set forth technical criteria for the allotment of additional DTV frequencies and for the modification of allotments included in the initial DTV Table. 7. We received over 260 petitions for reconsideration of issues addressed in the Fifth and Sixth Report and Orders. In the Service Reconsideration Order addressing petitions for reconsideration of the Fifth Report and Order, we revised and clarified various elements of our service implementation plan. We did not, however, modify or otherwise alter our position on initial eligibility for a DTV channel. In the Allotment Reconsideration Order addressing petitions for reconsideration of the Sixth Report and Order, we generally maintained the DTV allotment principles, policies and rules set forth in the Sixth Report and Order. However, we did make a number of changes and refinements to various elements of that decision. In particular, we: 1) established that the final DTV core spectrum will be channels 2-51; 2) permitted increased power for UHF DTV stations through use of antenna beam-tilting techniques; 3) adopted a de minimis interference standard for use in determining the acceptability of changes to the DTV Table; 4) clarified a number of rules and procedures for modifying the DTV Table; and 5) provided more specific guidance and procedures for low power stations that may be displaced or otherwise impacted by DTV operations. In addition, we revised a number of the DTV allotments to address new test data on DTV-to-DTV adjacent channel performance, to reduce interference problems in areas such as the Southern California region, and to respond to requests from petitioners. 8. Recently, we received 39 additional petitions for reconsideration of portions of the decisions made in the Service Reconsideration Order and the Allotment Reconsideration Order. These petitions variously seek changes in our eligibility standards, several of our DTV allotment policies and rules, or request modifications of individual DTV allotments. In our decisions below on the petitions for reconsideration, we first address the petitioners' requests for reconsideration of our DTV allotment policies and rules, and then address requests for modification of specific allotments included in the DTV Table. III. PETITIONS FOR RECONSIDERATION A. DTV Eligibility for Pending NTSC Applicants 9. The 1996 Telecommunications Act limited initial eligibility for DTV licenses to persons that, as of the date of the issuance of the licenses, held either a construction permit or license (or both) for a television broadcast station. Consistent with this statutory provision, we issued initial DTV licenses simultaneously to all eligible full service permittees and licensees on April 3, 1997, the date of the adoption of the Fifth Report and Order, as part of our decision in that action. In deciding to issue the initial DTV licenses on that date we concluded that it more completely effectuates the Congressional scheme to implement the statute through a streamlined three-phased licensing process, with the first phase consisting of the initial DTV license, rather than through the conventional two-phased (construction permit/license) licensing process. We indicated that use of the two-step process without the initial licensing phase would have prevented the establishment of a date certain at which to determine initial eligibility because, given the statutory directive that eligibility be limited to permittees and licensees as of the date of issuance of the DTV licenses, it could have potentially left eligibility open until the last DTV operating license was granted, a period that could possibly take years. This was also necessary to allow us to establish the DTV Table of Allotments. We made no decision at that time as to how we would treat new permittees and licensees whose NTSC applications had been filed but not yet been granted as of April 3, 1997, and who were, as a result, not awarded initial DTV licenses. 10. Several petitions for reconsideration of the Fifth Report and Order argued that parties with applications pending as of April 3, 1997, should be able to participate in the transition to DTV, at least under certain circumstances, such as allowing them to convert to DTV service on their NTSC channel. Many of these petitioners had filed applications within the previous three years that were mutually exclusive with other applications and which, as a result, had not been grantable by the Commission. In response to those petitions, we stated in the Service Reconsideration Order that we would afford new NTSC permittees, whose applications were not granted on or before April 3, 1997, and who were therefore not eligible for an initial DTV paired license, the choice to immediately construct either an analog or a digital station on the channel they were granted. Pursuant to this policy, we specified that these new NTSC permittees would not be awarded a second channel to convert to DTV, but could instead convert on their single 6 MHz channel. If they choose initially to build an analog station, they may request Commission authorization to convert to DTV at any point during the transition, up to the end of that period. 11. A few petitioners assert that, at least under some circumstances, pending applicants should receive a paired DTV allotment in addition to their NTSC allotment. According to Pappas Telecasting of the Midlands and Pappas Telecasting of Southern California (Pappas I), considering pending applicants as initially eligible for paired channels would not violate 1996 Telecommunications Act's eligibility provisions, because the statute left the timing of the issuance of the DTV licenses to the Commission's discretion. As a result, Pappas I contends, the timing may be reconsidered so that pending applicants are not necessarily considered ineligible for initial DTV licenses. 12. Pappas I supports the awarding of a DTV channel to any pending applicant if the applicant can identify a DTV channel that can be allotted and paired with its NTSC channel without impacting either the NTSC or DTV environment (existing stations, allotments, or pending applications). Pappas I believes that the public interest would be served by allotting a paired DTV channel under these circumstances, because it would allow the permittee to enjoy the same benefits as its competitors (i.e., the use of two channels to transmit programming). To do otherwise, Pappas I argues, would penalize permittees whose construction permit applications were held up through no fault of their own. 13. Cosmos Broadcasting Corporation (Cosmos) asks that we consider requests for paired DTV allotments by pending applicants on a case-by-case basis. It predicts that at some point during the transition, one sizeable group of viewers would retain their analog sets, while another sizeable group would embrace DTV. With only one channel, Cosmos believes, broadcasters such as itself would likely be cut off from a generous portion of their audience. This could be especially important during emergencies such as hurricanes and tornadoes. Cosmos argues that the 1996 Telecommunications Act does not preclude a case-by-case analysis, because the Commission is no longer dealing with initial eligibility. 14. Educational Television Association of Metropolitan Cleveland (ETAMC) states that the Commission has not articulated a reasoned analysis for treating pending noncommercial NTSC applicants differently from existing broadcasters. ETAMC claims that a pending noncommercial applicant has no assurance that its existing NTSC channel will be feasible in terms of interference to or from existing authorized DTV channels. As a result, ETAMC predicts, such an entity may not be able to provide meaningful service to its proposed service area. It adds that such broadcasters that are outside the core will have no assurance that a DTV allotment will be available for them when they convert their NTSC facilities to DTV. Therefore, ETAMC asserts that we should review each pending noncommercial application and determine whether channels are currently available to allot a core channel for the reserved channel proposed in the application, and to allot a paired DTV core channel as well, wherever possible. 15. We deny reconsideration of these petitions requesting that we assign a second channel to the pending applicants in lieu of the approach we took in the Service Reconsideration Order. Under the rules and policies we adopted, the pending applicants that are granted construction permits will be able to provide digital television service to their communities of license. They may do so on their allotted NTSC channel either after a period of providing analog service, or in lieu of analog service altogether, at their discretion. Thus, there is no public interest reason for affording a second channel to the pending applicants. We do not believe that granting a second, paired channel to the pending applicants for use in the conversion would be an efficient use of the scarce spectrum. Moreover, doing so would severely limit the availability of digital channels for new entrants and other potential public interest uses. 16. In our previous decisions with respect to initial eligibility for DTV licenses, we have sought to implement the statutory scheme contained in the 1996 Telecommunications Act. Accordingly, as discussed above, in the Fifth Report and Order we limited initial eligibility to existing full-power broadcasters. We allotted temporary second digital channels to these existing broadcasters for use in the conversion in order to avoid, wherever possible, depriving viewers and consumers of existing television service, upon which they have come to depend. One of the two channels provided to each station will be reclaimed at the conclusion of the transition, scheduled for December 31, 2006, for uses that we determine will best serve the public interest, including the provision of digital television service by new applicants. 17. On reconsideration, we determined that we would accommodate the desires of pending applicants to convert to digital television by allowing them to convert on their single channel, upon grant of an appropriate digital application. We do not believe that affording them a second channel, even on a case-by-case basis, for use in the conversion is necessary or warranted. As noted above, the second channel is intended as a temporary additional channel for existing broadcasters for use during the transition, to allow them to move to an improved technology without service disruption, by allowing the temporary continuation of analog broadcasting while the process of conversion to digital goes on. The same considerations do not apply to new broadcasters, who will be providing new services. At the end of the transition, all broadcasters will be in the same situation, holding only one channel on which to provide digital service. 18. In addition, allotting second channels to the pending applicants could diminish competition and diversity by appropriating scarce spectrum that could otherwise be used by new entrants into broadcasting. Indeed, Section 3003 of the Balanced Budget Act of 1997 directs the Commission to auction recaptured broadcast spectrum between channels 2-59 and to report the resultant revenues to Congress by September 30, 2002. Affording second channels to pending applicants even on a case-by-case basis could delay use of such channels by new entrants until the end of the transition in 2006. We emphasize our discretion to allocate among competing demands for spectrum according to public interest considerations. 19. In addition, affording second channels to all the pending applicants as their NTSC applications are granted would likely be impossible. There are few available channels for the many pending broadcast applications, particularly in urbanized areas such as the Northeast. While the petitioners request that we grant such second channels to the pending applicants on a case-by-case basis, to do so might create inequitable distinctions among the pending applicants. 20. Cosmos's claim that without an additional channel, pending applicants may be cut off from part of their audience is speculative. Viewers with digital television sets will be able to receive both DTV and NTSC transmissions; viewers with analog sets need only a digital converter in order to receive both digital and analog signals. In any event, unlike existing broadcasters, the pending applicants who choose to commence broadcasting with analog technology have until the end of the transition period to convert to digital technology. Accordingly, during the transition each such broadcaster can determine the best time to convert to digital technology, based on market conditions in the community and the availability and penetration of digital technology. Additionally, while some pending applicants have requested a second channel so that they may be on a competitive par with the initial DTV licensees, some existing broadcasters have argued that it will be very expensive to operate two stations simultaneously. We do not believe that allowing pending applicants to convert on their single channel places them at an unfair competitive disadvantage. At the end of the transition, all broadcasters will be similarly situated. 21. ETAMC is incorrect in asserting that we have treated pending applicants for noncommercial stations differently from applicants for commercial stations. Our general policy in this regard was as follows. We protected all vacant NTSC allotments that were the subject of applications pending as of April 3, 1997. We did not protect applications that were filed for vacant NTSC allotments within the areas defined in our 1987 Order (Freeze Order) freezing the acceptance of applications for new NTSC stations in certain areas in order to preserve spectrum for DTV use. This policy was, and is, the same for applicants for both commercial and noncommercial stations. Our consideration of applications for new NTSC stations within the freeze areas and applications for new NTSC stations filed after April 3, 1997, will be based in part on whether the stations they propose would be predicted to cause interference to DTV stations or allotments. Where such applications are granted, the new stations may be required to limit their operations in some manner to avoid interference to DTV stations and to accept interference from DTV operations. 22. Similarly, ETAMC's assertion that pending noncommercial applicants with channels outside the core have no assurance that a DTV allotment within the core will be available for them at the end of the transition period is incorrect. In the Service Reconsideration Order, we stated that, at the end of the transition, the Commission will reassign all out-of-core DTV broadcasters, including the pending applicants, to channels within the core. We are confident that sufficient channels will be available to provide all out-of-core stations with a new channel, and ETAMC has presented no evidence that this will not be the case. We also specifically stated that we would allow stations with channels outside the core to seek authorization to convert on a core channel instead, if they can identify a core channel that protects all DTV and NTSC stations and that complies with all the DTV technical rules. If that authority is granted, their out-of-core 6 MHz channel will be returned to the Commission and their authorization will specify the new in-core channel. Finally, as noted in the Service Reconsideration Order, we can review particular issues relating to difficulties in conversion by noncommercial educational stations in our biennial reviews. B. Applicants Pending as of October 24, 1991 23. A few petitioners assert that pending applicants whose applications were pending as of October 24, 1991 and whose construction permits were not granted until after April 3, 1997 should receive a paired DTV allotment in addition to their NTSC allotment. Pappas I claims, as it did in the case of pending applicants in general, that this would not violate the 1996 Telecommunications Act's eligibility provisions, because the statute left the timing of the issuance of the initial DTV licenses to the Commission's discretion. Pappas I points out that in the Fifth Report and Order we stated that we "will give particular consideration for assigning temporary DTV channels to new licensees who applied on or before October 24, 1991, given the reliance that these parties may have placed on rules we adopted before passage of the 1996 Act." Pappas I argues that these few applicants would have been given paired channels but for lengthy administrative procedures encountered in the selection process. Pappas I submits that only a few cases exist in which the application was on file prior to October 24, 1991 and remained pending as of April 3, 1997. 24. If we are unwilling to rely solely on the fact that an application was pending as of October 24, 1991, Pappas I submits that we should at least consider awarding of a DTV channel to this subcategory of pending applicants who can demonstrate substantial and unique equities in favor of the allotment. In particular, it requests a second channel to be paired with an analog allotment in Avalon, California, for which it is the sole remaining applicant. Pappas I states that it would use both the analog and the digital channels in tandem to present multichannel subscription programming in several different languages. (There had been several mutually exclusive applications for this channel. However, after we adopted the Fifth Report and Order, Pappas I became the successor applicant to Island Broadcasting, Ltd. ("Island"), one of the original applicants. As the successor applicant, Pappas I's rights and responsibilities are identical to what Island's would have been had it remained an applicant). 25. Island, predecessor in interest to Pappas, also contends that parties with applications pending since before October 24, 1991, should receive paired channels. Island notes that the Fourth Further Notice and Third Notice of Inquiry proposed that applicants who filed before October 24, 1991, be eligible for initial DTV licenses. Island adds that such parties did nothing to delay the Commission's consideration of their applications. Island proposes that if the new permittee can identify an available DTV channel, then that channel should be allotted and treated like a paired channel, similar to other paired allotments. 26. We decline to grant parties with NTSC applications pending since before October 24, 1991 a paired DTV channel. We recognize that we stated, in the Fifth Report and Order, that we "will give particular consideration for assigning temporary DTV channels to new licensees who applied on or before October 24, 1991, given the reliance that these parties may have placed on rules we adopted before passage of the 1996 Act." However, we have fully taken account of and accommodated the desires of these licensees to convert to digital television by allowing them to convert on their analog channel regardless of the fact that they were not eligible for initial DTV licenses. Moreover, we note that these pre-1991 applicants were last in priority among those on the priority list for digital channels, in the event of a spectrum shortfall. Thus, these parties were on notice that their desires for a second channel might not be accommodated in the event of a spectrum shortfall. After consideration of the equities present, including the disruption that could be caused if we were to attempt to find paired channels for all of the applicants in this category, we conclude that we should not grant the requested relief. 27. We have, in the Service Reconsideration Order, afforded equitable relief to all pending applicants who were not eligible for a second temporary DTV channel by affording them the opportunity to convert to digital television on the channel they are granted so long as the proposed DTV facility protects all DTV and NTSC stations by complying with all applicable DTV technical rules. We believe that the relief we have afforded to the pending NTSC applicants thus far fully satisfies all the equitable and other considerations that have been raised in requests for additional digital channels. Therefore, we would not expect to entertain any further requests for reconsideration or requests in any other context that ask that additional categories of NTSC applicants be afforded a paired digital channel with the analog channel they are granted. Our decision in this regard is based on our broad discretion to manage the spectrum. We recognize that digital spectrum is a valuable commodity and that there are many entities that seek to use the spectrum for a variety of uses. As we previously stated, we anticipate that there will be future opportunities for a wide variety of applicants, including new entrants, to seek digital channels. We noted in the Sixth Report and Order that "we will permit unused DTV spectrum to be used by both new and displaced LPTV and TV translator stations. We will also allow new entrants and non-eligible broadcasters to seek and apply for new DTV allotments." We also recognize that Section 309(j), as amended by the Balanced Budget Act of 1997 requires us to use competitive bidding to grant broadcast permits or licenses (with certain exceptions) if mutually exclusive applications are accepted for any initial license or construction permit. We therefore intend to auction digital spectrum at a later date in compliance with this provision. C. NTSC Station Modifications 28. In the Sixth Further Notice of Proposed Rule Making (Sixth Further Notice) in this proceeding, we stated that in order to preserve our ability to develop the DTV Table we would henceforth condition the grant of applications for modifications of the technical facilities of existing NTSC stations, including those on file before the date of adoption of that decision, i.e., July 25, 1996, on the outcome of our decision on the DTV Table of Allotments. We indicated that to the extent that an existing station's service area or potential for causing interference were extended into new areas by grant of an application, the condition may require the station's authorization to be reduced or modified. In the Sixth Report and Order, we indicated that in developing the DTV Table we had been able to accommodate all of the eligible broadcasters with DTV allotments that would not conflict with any of the authorizations to modify existing NTSC facilities that been granted subsequent to July 25, 1996. We therefore removed the condition from all such authorizations to modify existing NTSC facilities. We further stated that henceforth we will consider any impact on DTV allotments in deciding whether to grant applications for modification of NTSC facilities. We affirmed this decision in the Allotment Reconsideration Order. 29. In the Sixth Further Notice, we also stated that we would not accept additional applications for new NTSC stations after 30 days from the publication of the Sixth Further Notice in the Federal Register. We stated that as we process the applications on file at the time of the Sixth Further Notice and those that were filed before the end of the remaining filing opportunity, we would continue our policy of considering requests for waiver of the Freeze Order on a case-by-case basis. We anticipated that the applications for new NTSC TV stations on existing allotments outside the freeze areas would not have a significant negative impact on the development of the DTV Table of Allotments, but reserved the right, in specific cases, to determine that the public interest is better served if they are not granted, granted only if amended to specify reduced facilities, or granted only with a condition that limits the interference that the station would be allowed to cause. In the Sixth Report and Order, we stated that we would maintain and protect those vacant NTSC allotments that are the subject of pending applications. 30. The Detroit Educational Television Foundation (DETF), licensee of noncommercial educational station WTVS-TV in Detroit, Michigan, the ETAMC, licensee of noncommercial educational station WVIZ-TV in Cleveland, Ohio, the Milwaukee Area Technical College District Board (MATC), licensee of noncommercial educational station WMVT-TV in Milwaukee, Wisconsin, and WXXI Public Broadcasting Council (WXXI), licensee of noncommercial educational station WXXI-TV in Rochester, New York seek reconsideration with respect to our treatment of applications for modification of existing NTSC stations. These petitioners all state that they submitted applications to increase the power of their NTSC stations prior to April 3, 1997. They observe that in the Allotment Reconsideration Order we stated that service replication of DTV allotments is based on facilities authorized as of April 3, 1997, and that we refused requests that we process all pending NTSC modification applications and grant them full DTV service replication of the modified facility. In contrast to this decision, they observe that in the Service Reconsideration Order we stated that applications for new NTSC facilities that were pending as of April 3, 1997, would be processed and that the grantees could operate either a digital or analog station prior to conversion. These petitioners argue that our treatment of applications for modification of NTSC facilities and new NTSC applications is disparate and unfair. They argue that all applications pending as of April 3, 1997, whether for new or modified NTSC facilities, should be treated the same. 31. We disagree with the petitioners' position that our treatment of applications for modification of NTSC facilities and applications for new NTSC stations is disparate and unfair. Contrary to the petitioners' assertions, we have, in fact, treated applications for modification of NTSC stations and requests for new NTSC stations, submitted as of April 3, 1997, similarly. In both cases, it has been our consistent policy to consider the impact of such requests on the DTV Table of Allotments. While we did protect certain applications for new NTSC stations, such protection was limited only to applications for stations outside of the freeze areas and was based on analysis by our staff that those existing allotments could be protected without affecting our ability to achieve our DTV allotment goals. Further, as stated above, we specifically reserved the right not to grant these applications, or otherwise require limited or reduced facilities, if we found that any of these pending requests would limit the ability of DTV allotments to provide for replication of their associated NTSC stations. We did not protect applications for new NTSC stations inside the freeze areas and we did not protect pending modification applications because of the likelihood of impact on the DTV Table. Rather, in both of these situations, we decided to treat such requests on a case-by-case basis. Thus, we have effectively applied the same policy criteria in our treatment of applications for all requests for new NTSC stations. We therefore believe that our treatment of applications for modification of NTSC facilities and applications for new NTSC stations is fair and consistent. The protection afforded to applications for new NTSC stations at locations outside of the freeze areas merely provided an administratively efficient means for managing the spectrum to allow new stations wherever possible in areas where such stations would not affect our DTV allotment goals. Such protection for applications for new NTSC stations to be located within the freeze areas would have severely limited our ability to achieve our DTV allotment goals. 32. Consistent with our general plan to provide for replication of existing service areas in developing the DTV Table, we attempted to provide allotments that match the authorized service areas of all stations as of the date of the adoption of the DTV Table, including the modified service areas of stations whose application for modification of facilities had previously been granted on a conditional basis. We found that it was possible to replicate the modified facilities of these stations without affecting our ability to replicate the service areas of other stations and without increasing interference to other stations. It was not feasible to provide DTV allotments that would match the service areas requested in all of the NTSC modification applications received prior to April 3, 1997, that had not yet been processed. To do so as a general policy would have limited our ability to replicate the service areas of many existing stations. The adverse effect of such an approach on our ability to create DTV allotments would have been much the same as if we had simply granted all of the pending modification requests prior to developing the DTV Table. We also note that we have indicated that we will continue to process the pending applications for modification of NTSC stations (as well as any additional requests for modification of NTSC facilities that may be submitted), and have provided a procedure by which the licensees of the stations involved in those applications may seek modifications of the specified facilities of their DTV allotments. In processing applications for modification of NTSC facilities, we intend to consider any impact on DTV allotments. Where a proposed modification would result in interference to the service predicted for a DTV allotment, it will be dismissed. Where a proposed modification would not result in interference to the service predicted for a DTV allotment and otherwise meets the requirements of our rules, it will be granted. In view of the fact that our actions with respect to modification applications granted before the DTV Table were evaluated based on the same criteria that will be applied in evaluating other NTSC modification applications and did not compromise either our DTV allotment goals or opportunities for increasing the NTSC or DTV facilities of other stations, we find that our treatment of all such applications is fair and equitable. Accordingly, we are denying the petitioners' requests that we process all pending NTSC modification applications and grant them full DTV service replication of the modified facilities. 33. Interested parties are advised that in processing the remaining pending applications for modification of NTSC facilities, we will consider the impact of the proposed change on the service area of any affected DTV station as computed from the location and facilities specified in Appendix B of this Memorandum Opinion and Order, or any increases in facilities authorized subsequent to those established in Appendix B. Consistent with the plan described above, applicants are also advised that, to the extent we grant applications for modifications of NTSC facilities, we will not automatically increase the facilities of the associated DTV channel to replicate the new NTSC service area. In this regard, we are concerned that increasing DTV facilities in this manner could result in significant new interference to either or both NTSC stations or other DTV stations. Accordingly, if parties with pending applications for NTSC modifications also desire to have their DTV facilities modified, they must submit a separate application for modification of the DTV station. Such applications for DTV station modifications will be evaluated under the criteria set forth in Sections 73.622 and 73.623 of the rules. D. Applications for New NTSC Stations 34. A number of petitioners that had filed applications for new NTSC stations request that we reconsider our decision not to maintain or protect the NTSC allotments that would be used by those new stations. The petitioners requesting reconsideration regarding such allotments are Beaumont 21 L.L.C. (Beaumont), Ch 32 Hispanic Broadcasters, Ltd. (Hispanic), Davis Television (Davis), Fant Broadcast Development- Plaquemine, Louisiana, Jackson, Mississippi, and New Albany, Indiana (Fant), Green Bay 44 L.L.C. (Green Bay), Mississippi Authority for Educational Television (MAET), Oregon Family Broadcasting Association (OFBA), Oro Valley 52, L.L.C. (Oro Valley), Pappas Telecasting of America- Owensboro, Kentucky, Charleston, West Virginia, and Vergennes, Vermont (Pappas II), Pelican Broadcasting Company- Cheney, Washington, and Marshfield, Missouri (Pelican), South Central Communications Corp. (SCCC), Western New York Public Broadcasting Association (WNYPBA), and Zavaletta Broadcasting of Pueblo and Sherman (Zavaletta). In general, the applications addressed in these petitions are for new stations within areas covered by the 1987 Freeze Order. Most of these petitioners indicate that they had filed their applications with a request for waiver of the 1987 Freeze Order. 35. These petitioners generally argue that we neglected to provide an explanation for not protecting the allotments sought in their applications. In particular, they argue that in the Sixth Report and Order we indicated that we would continue to process applications filed on or before September 20, 1996, because we did not believe that those applications would have a significant negative impact on the DTV Table. They further contend that in the Allotment Reconsideration Order we confirmed that we intended to protect pending NTSC applications filed by this deadline. Davis Television, Pappas II and others argue that their previous pleadings in this proceeding were premised on the expectation that their applications were filed before the September 20, 1996, deadline for new NTSC applications and therefore would be considered in due course and harmonized with the DTV process. Davis states that in the Allotment Reconsideration Order we made clear for the first time that applications not accepted for filing were not protected and that to the extent that a conflicting DTV allotment has been made, we did not plan to allot a replacement channel for those applications. Pappas II and others note that we stated that we would continue our policy of considering requests for waiver of the 1987 Freeze Order on a case-by-case basis. They argue that we provided no notice that we were going to treat applications containing such a waiver requests as if they never had been filed and that an application would be considered "pending" only if it had been formally accepted for filing. The petitioners therefore seek reconsideration to ensure that allotments will be available for their NTSC applications. 36. Most of these petitioners request that we change the channel of a DTV allotment that conflicts with the NTSC allotment they seek and make specific suggestions for alternative DTV channels. Alternatively, they request that we permit them to modify their applications and, as appropriate, accompanying petitions for rule making to specify replacements for affected NTSC channels. Petitioners submit that allowing them to seek alternate NTSC channels would provide a win-win solution by avoiding conflicts with DTV allotments, allowing their applications to go forward, and allowing the public to receive additional television service. Beaumont, Pappas II and others also state that allowing these NTSC applications to go forward would promote the emergence and development of new networks. Many of these petitioners also suggest alternative NTSC channels to address their individual situations. 37. Oppositions to specific requests for reconsideration on this issue were submitted by America 51, L.P. (America 51), Channel 3 of Corpus Christi, Inc. (Channel 3), Civic License Holding Company (Civic), Independence Television Company (Independence), Kentucky Authority for Educational Television (KET), Lee Enterprises, Inc. (Lee), Montgomery Communications, Inc. (Montgomery), Mountain Lake Public Telecommunications Council (MLPTC), Northeast Kansas Broadcast Service (Northeast), Oregon Television, Inc. (OTI), and WATE, L.P. Most of these parties are DTV licensees who oppose the petitioners' requests that we change their DTV channels in order to preserve the NTSC allotments for which the petitioners have applied. These parties generally argue that the alternate DTV channels proposed by the petitioners would allow less replication of service, and therefore are less desirable, than their current channels. Some of these opposing stations also submit use that the proposed alternate DTV channels would result in increased interference to other stations. Montgomery, OTI, and WATE observe that nothing in the Sixth Report and Order or the Sixth Further Notice stated that pending applications subject to the Freeze Order would be entitled to protection against conflicting DTV allotments. In this regard, WATE also notes that each of the petitioners' applications was filed after the imposition of the freeze and that each application sought a waiver of the freeze. It therefore argues that each of these petitioners was fully aware that the Commission could allocate new DTV channels in a manner that would preclude grant of its application. KET, and MLPTC state that the continuing risk of potentially involuntary changes to stations' DTV allotments created by such petitions creates uncertainty, inhibits planning, and unnecessarily complicates and slows the transition to DTV. Independence argues that continuing to preserve NTSC allotments indefinitely would bring the implementation of DTV to a standstill. Channel 3 and Northeast argue that it is inappropriate in this proceeding to consider changed or new NTSC channel allocations, especially those subject to the current freeze. America 51, Civic and Lee submit that they have no objections to allowing the petitioners to seek to operate NTSC stations on other channels that would not result in interference. 38. In reviewing the petitioners' requests for reconsideration, it appears that there is some misunderstanding about our policy with respect to applications for new NTSC stations that were filed on or before September 20, 1996, as it applies to applications for new stations at locations within areas covered by the 1987 Freeze Order. As indicated above, we stated in the Sixth Report and Order that we would maintain and protect those vacant NTSC allotments that are the subject of pending applications. This policy applied only to applications for new NTSC stations outside of the freeze areas. Petitioners appear to assume that since they filed their applications before the deadline, those applications are considered "pending" and therefore should be protected. We did not, however, consider applications within the freeze areas to be pending and did not protect such applications by avoiding the creation of DTV allotments that would conflict with the new NTSC stations they propose. In this regard, we had indicated previously, in the Sixth Further Notice, that we would continue our longstanding policy of considering requests for waiver of the Freeze Order on a case-by-case basis. We further indicated that when applications for new NTSC stations were accepted for filing, we would continue our process of issuing Public Notices that "cut-off" the opportunity for filing competing, mutually exclusive applications. We did not alter this policy in either the Sixth Report and Order or the Allotment Reconsideration Order. In fact, in the Allotment Reconsideration Order, specifically indicated that we did not protect NTSC applications where they were for stations in areas where we had indicated we would not accept new petitions. 39. While we recognize the efforts that these petitioners are making in attempting to bring additional voices and services to television viewers, we have found it necessary to consider as deleted the vacant NTSC allotments that they seek in order to provide DTV allotments that fulfill our allotment goals of providing all eligible broadcasters with a DTV channel that will allow replication of existing service areas. As we have indicated a number of times in this proceeding, including the Sixth Report and Order, if we protected all vacant allotments it would not be possible to accommodate all existing broadcasters and the expected service areas of many of the DTV allotments would be reduced. As argued by the stations opposing the change of their DTV channels, preserving the NTSC allotments sought by these petitioners would have an adverse effect on the coverage of DTV stations in the same area. We therefore are denying the petitioners' requests to the extent that they ask that we maintain or protect the NTSC allotments that would be used by the new stations sought in their NTSC applications or that we change the channel of any DTV allotments that conflict with the NTSC allotments they seek. 40. We do, however, believe it is desirable to provide applicants seeking to operate new NTSC stations in the freeze areas with options to pursue their applications wherever such options would not conflict with NTSC or DTV stations (including DTV allotments, authorized or requested increases in DTV allotment facilities and proposals for new or modified DTV allotments). In this regard, we are adopting the suggestion of several of the petitioners that we allow parties whose NTSC applications conflict with DTV stations (as above), to request a change in the NTSC channel they seek or to amend their application to eliminate all such conflicts. We agree that where an alternate NTSC channel below channel 60 is available, it would provide a win-win solution in avoiding interference to DTV service and allowing the public to receive additional television service. 41. Accordingly, in a subsequent Public Notice, the Mass Media Bureau will announce a window of time during which such petitions to amend the NTSC Table of Allotments or amendments to freeze-waiver applications may be filed. Parties that had filed applications for new NTSC stations using allotments in the freeze areas will be permitted to amend their applications if such amendment would eliminate interference to DTV service predicted using the criteria set forth in Section 73.623(c) of the rules. Such amendments may include changes in the ERP, directional antenna pattern, antenna height or site location requested in the application, but the amendment must conform to pertinent NTSC requirements. The application amendment may also specify DTV operation. Allowing such stations to commence operation with DTV service is consistent with our treatment of "new applicants," which we will allow to commence operation with DTV service or convert to DTV operation during the transition period. 42. A petition for rule making filed during this window to change the NTSC channel allotment must also include a showing that interference to a DTV station (again including DTV allotments, authorized or requested increases in DTV allotment facilities and proposals for new or modified DTV allotments) would be caused if the requested channel change is not made. Such a petition may request a DTV channel as the replacement for the NTSC channel allotment. Where multiple applications have been filed for a single existing NTSC allotment, a petition must propose a single replacement channel, to which all applicants agree to modify their application. Rule making proceedings initiated by petitions filed during this window will not reopen the opportunity for new NTSC channel allotments to be proposed (that is, counter- proposals by new parties will not be entertained). Where a channel allotment is changed in a rule making proceeding, applicants will be required to file amendments to specify appropriate facilities on the new channel. Given that these applications were filed before the September 20, 1996, deadline for applications for new NTSC stations, their long pendency and the prospect they offer for additional service, we will consider such amendments to be minor. Accordingly, the applications will retain their original file numbers. Consistent with the competitive bidding Report and Order, wherever two or more applications were pending for an allotment before July, 1997, the group is closed and no additional applications for that allotment (on the new channel) will be accepted. After the window has ended, freeze waiver applications will be dismissed if they conflict with DTV stations, they have not been amended to remove the conflict, and their requested allotment is not the subject of a pending petition for rule making seeking an alternate channel. E. Maximization Requests 43. Fox Broadcasting Company (Fox) requests that we reconsider our decision to limit maximization requests for increased power by UHF DTV stations to 200 kW until substantial progress has been made in the rollout of DTV service. Fox asserts that we provided no explanation on why the maximum UHF power level, i.e., 1000 kW, was reconsidered. It also argues that we provided no rationale for why parties will not be able to take advantage of the new de minimis interference rule, which allows stations maximizing their DTV service areas to cause up to 2 percent additional interference to other stations, in seeking to maximize their DTV facilities from the outset. 44. Fox further submits that the 200 kW power cap poses problems for DTV implementation. First, it asserts that the cap will delay the rollout of DTV. It argues that the 200 kW limit will mean stations will have smaller DTV service areas and fewer people will be able to receive DTV service. Second, Fox argues that the power cap will continue the current disparity between VHF and UHF stations and will affect the ability of UHF stations to compete in their markets. It is particularly concerned that most of its stations and its affiliates are UHF stations that will be affected by the cap, while most of the other networks are comprised of largely VHF stations that have UHF DTV stations that will not be affected by the cap. Fox next argues that the burden of the cap is particularly onerous for its stations that have accelerated build out requirements in the top 30 television markets. It argues that the power cap will require it to build two DTV stations at added cost or invest in more costly higher power equipment based only on a possibility that it may be permitted to apply for higher power at some point in the future. 45. Fox therefore requests that we permit any station that can meet the de minimis interference standard to maximize its power up to 1000 kW immediately. It states that there is a danger that stations could file maximization applications merely to thwart competitors, but that this could be addressed by requiring comprehensive engineering statements to demonstrate compliance with the de minimis interference standard that are "time-consuming and expensive" to prepare. It also states that all applicants should be required to adhere to the Commission's standard DTV construction timetable and certify their intention to construct and operate according to the specifications in their application. Fox further states that we should adopt procedures to efficiently and expeditiously resolve conflicts between mutually exclusive maximization applications. It suggests that applicants should be given 90 days after a Public Notice to resolve a conflict through private negotiations. If such negotiations fail, Fox states that we should award the grant to the applicant proposing to provide DTV service to the largest number of households. 46. In an ex parte submission of June 26, 1998, Fox presented an alternative proposal for allowing UHF DTV stations to increase their power above the 200 kW temporary cap. Under this proposal, stations would be permitted to maximize their DTV facilities above 200 kW only if they provide an interference analysis that demonstrates that any new interference resulting from the change would be within the level permitted under the de minimis standard. This interference analysis would be performed assuming that all other DTV facilities are operating at the DTV power levels specified for their allotment, or 200 kW, whichever is greater. Under this proposal, all maximization applications would be placed on public notice and interested parties would be allowed 30 days to file formal objections to the applications. No formal application to increase DTV facilities would be required to be filed with such an objection. However, the objecting party would be required to state that it is interested in maximizing and would be precluded from doing so by the maximization application on file to which it was responding. Upon the filing of an objection to a maximization application, the affected parties would be allowed 30 days to resolve the conflict. In the event the parties were unable to resolve their differences, the maximization application would be returned and the applicant would be allowed to re-submit the application with a request for no more than 200 kW ERP. Fox states that this proposal would allow parties to maximize except in situations where there are potential conflicts, and in those instances the 200 kW cap would remain in place. 47. In its comments, Sinclair Broadcast Group (Sinclair) states that while it appreciates the Commission's efforts to alleviate the disparity between analog VHF stations operating DTV stations in the UHF band (V-to-U stations) and UHF analog stations operating DTV stations in the UHF band (U-to-U stations), it agrees with Fox that the 200 kW power imposes an unfair limit on UHF/UHF stations. It submits that we should eliminate this limit now or at least clarify when during the DTV transition period the limit will be lifted. Sinclair also supports Fox's suggested procedures for ensuring that only bona fide maximization requests receive consideration. 48. Our decision to temporarily limit maximization requests to 200 kW in the Allotment Reconsideration Order was made in order to ensure that the largest number of parties would have a fair opportunity to seek an increase in their DTV facilities. We stated that this initial 200 kW limit should put all licensees and permittees on a more equal footing and will give the Commission flexibility to accommodate other facility changes that may be needed by other licensees. We noted that studies by the Association for Maximum Service Television, Inc. (MSTV) indicated that almost 700 of the about 850 stations with less than 200 kW could increase their DTV facilities to 200 kW without creating more than 1 percent interference to any NTSC station. We therefore stated that our 2 percent de minimis standard and our 200 kW temporary limit would provide substantial relief for stations seeking to increase their facilities and would be easy for the Commission to administer and apply. We also note that allowing unrestricted, immediate maximization requests could result in a large number of mutually exclusive situations that would be difficult to resolve and could delay the implementation of DTV. Therefore, we believe that, in general, the 200 kW cap should be maintained at this time. We do, however, recognize the 200 kW cap may not be needed in all situations and that it is desirable to permit immediate full maximization to 1000 kW in situations where such changes would not affect the maximization plans of others, as suggested in Fox's June 26, 1998, ex parte filing. 49. We therefore are modifying our policy on maximization requests along the lines suggested in Fox's ex parte filing. Accordingly, we will permit applicants for UHF DTV station construction permits to submit requests for power increases above 200 kW, up to the 1000 kW maximum. The following provisions will apply to applications proposing such power increases that would increase a station's DTV service area in one or more directions beyond the area resulting from the station's allotment parameters. Such requests must include an interference analysis that demonstrates compliance with the de minimis interference standard set forth in Section 73.623(c)(2) of the rules. This interference analysis must be performed assuming that all other DTV facilities are operating at the DTV power levels specified for their allotment, or 200 kW, whichever is greater, and at the allotted site and antenna height above average terrain. All such applications will be placed on public notice and interested parties will be allowed 30 days to file objections. A party may object to such requests where the change would impact its future plans to maximize its own DTV operations, i.e., to an extent greater than could be achieved at a power level of 200 kW. No application to increase DTV facilities will be required to be filed with such an objection. However, the objecting party must demonstrate how the requested change would affect its plans for maximization, i.e., by showing that the requested facilities would cause more than the allowed de minimis level of interference to the objecting party's planned DTV service in an area it could otherwise serve. Such showings could be based either on the objecting party's DTV allotment reference site or another site from which its planned service could be achieved under our rules. Upon the filing of an objection to a maximization application, the affected parties will be allowed 30 days to resolve the conflict. In the event the parties are unable to resolve their differences, the application will be dismissed and the applicant will be allowed to resubmit the application with a request for no more than 200 kW ERP. The above policies will apply both to future applications and applications now on file at the Commission. 50. We do not agree with Sinclair that a specific date for eliminating the cap should be chosen at this time. Rather, we believe that it is more appropriate to make this decision after both the industry and the Commission have gained additional experience with the implementation of DTV. In this regard, we intend to address the need for the 200 kW power cap during our periodic reviews. F. Antenna Beam Tilting 51. In the Allotment Reconsideration Order, we allowed DTV stations to increase power within their service area using antenna beam tilting techniques. Specifically, we provided that a UHF DTV station will be permitted to increase its power up to a maximum of 1000 kW, provided antenna beam tilting techniques are employed so that the field strengths at the outer edge of the station's service area are no greater than the levels that our model predicts would exist if the station were operating at its assigned DTV power. In addition, we required that where beam tilting is used, the field strengths at the edge of the station's service area be calculated assuming 1 dB of additional antenna gain over the antenna gain pattern specified by the manufacturer. We further provided that a station desiring to operate at a higher power level than that specified for it in the DTV Table shall submit, with its initial application for a DTV construction permit or subsequent application to modify its DTV facilities, an engineering analysis demonstrating that the predicted field strengths and predicted interference within its service area comport with the above requirements. Stations seeking to operate at higher power levels under these provisions will be required to notify, by certified mail, all stations that could potentially be affected by such operation at the time the station files its application for a construction permit or modification of facilities. Potentially affected stations to be notified include stations on co-channel and adjacent channel allotments that are located at distances less than the minimum geographic spacing requirements for new DTV allotments in Section 73.623(d)(2) of the rules. 52. Cosmos seeks reconsideration of our decision to allow DTV stations to use antenna beam tilting under the above plan. Cosmos submits that in its previous filings in this proceeding it had objected to the use of beam tilting, arguing that the combined effect of tower deflection, high gain antennas and beam tilting could create new interference. It notes that we did take several measures to address its concerns, including requiring that a DTV station employing beam tilting calculate its field strengths at the edge of its service area assuming 1 dB of additional gain over the antenna gain pattern specified by the manufacturer. Cosmos requests that we reconsider this 1 dB value and argues that an 11 dB value should be used, as demonstrated in its previous filing. It argues that this amount of change in field strength could occur for a 2000 foot tower with a very high gain antenna subject to maximum wind loading and deflection. It also urges that we increase the distance for triggering the notification requirements set forth in Section 73.622(f)(4)(iv). For administrative convenience, Cosmos recommends that broadcasters double the separation required for new allotments. In the alternative, Cosmos states that we should clarify that stations falling within the distances specified in Section 73.623(d)(2) are not intended to be the only stations notified since "all" affected stations must be notified. 53. In the Allotment Reconsideration Order, we previously considered and rejected Cosmos' proposal to require that the interference evaluations for facilities using beam-tilting be made under maximum deflection conditions. We found that the 1 dB antenna margin would serve to minimize the potential for increased interference where the beam tilting is reduced due to deflection of the antenna by wind. Cosmos has provided no new information, but rather has merely resubmitted the same technical information contained in its earlier petition. We continue to disagree with Cosmos that more stringent regulations are needed for stations that may employ antenna beam tilting. We note that while DTV field strengths can change due to antenna deflection, such changes are dependent upon a number of factors and, in most cases, would not result in the high variations in field strengths suggested by Cosmos. Furthermore, instances of significant antenna deflection, particularly to the maximum levels, are infrequent and transient in nature. We therefore find that the increase in antenna margin sought by Cosmos is not warranted and are again denying this request. We also see no need to increase the distance for triggering the requirements for notifying other stations when a station seeks to operate at higher power through the beam tilting provisions. Cosmos request in this regard is misplaced, in that any increases in interference resulting from a station's increase in operating power under the beam tilting provisions are most likely to occur in areas close to the edges of that station's existing service contour. Increasing the range in which co-channel and adjacent channels must be notified beyond the minimum spacing requirements for new DTV stations therefore would generally not serve to alert other stations of any significant interference problems and would only add unnecessary burden for all parties involved. G. Use of Channel 6 for DTV Service 54. The National Religious Broadcasters' Association (NRB) requests that we reconsider our determination to include TV channel 6 in the core DTV spectrum. It states that the limitations imposed by Section 73.525 of the rules prevents most noncommercial FM stations from increasing their coverage and service and that elimination of channel 6 for use by television would allow for the elimination of these limitations. NRB states that permitting DTV operation on TV channel 6 permanently down-grades the noncommercial FM service to second class status. It also argues that there is no reason to artificially limit coverage by noncommercial FM stations to protect DTV channel 6 stations after the transition period. 55. NRB further states that if any TV channel 6 stations are permitted to remain after the conversion period, we should require the licensees of such stations to: 1) commit to pay any and all costs involved in resolving interference to and from noncommercial FM operations, present and future; and, 2) agree in writing that applications for modification of existing FM stations and permits for new stations may be prepared, filed and granted without reference to the limitations that Section 73.525 would otherwise impose on such modifications or new stations. It further requests that consistent with this plan we should eliminate the limitations that are imposed on noncommercial stations by Section 73.525. 56. In the Allotment Reconsideration Order, we addressed the concerns of noncommercial radio interests regarding the use of TV channel 6. We stated that in developing the DTV Table we sought to minimize the potential for interference between DTV and FM radio service by avoiding the use of channel 6 for DTV to the extent possible. We further noted that DTV operations will be at substantially lower power levels than existing NTSC operations, and that the current rules are adequate to protect DTV operations on existing channel 6 allotments. We also agreed with National Public Radio (NPR) that noncommercial radio licensees should not be solely responsible for resolving interference that might occur from our inclusion of channel 6 in the core spectrum. Therefore, we stated, as a general matter, that it will be the initial responsibility of a DTV licensee to protect against or eliminate harmful interference to any FM radio stations that are in operation at the time the DTV station commences operation. We also stated that in the case of new DTV stations on new channel 6 allotments, the nature of the potential for interference to FM service from DTV service necessitates that determinations of whether such interference would occur be made on a case-by-case bases. We therefore stated that we would require that parties requesting new DTV allotments on channel 6 submit an engineering study to demonstrate that no interference would be caused to existing FM stations on FM channels 200-220. 57. We continue to believe that it is important to maintain the availability of channel 6 for television service. Channel 6 has advantageous propagation properties and has proven very desirable for television operation as indicated by the fact that there are currently more than 55 NTSC television stations on this channel. We believe it would be undesirable to remove channel 6 from the core spectrum or to impose additional restrictions on use of this channel for DTV service after the transition. In this regard, we do not find that the additional opportunities for increasing FM noncommercial coverage would outweigh the costs of eliminating channel 6 from TV service. While we recognize that the use of channel 6 for television service necessitates some limitations on stations in the noncommercial FM radio service, we also note that FM noncommercial radio services in the 88-92 MHz band and NTSC television services on channel 6 have operated successfully in many areas. We further note that the robust nature of the DTV signal with regard to interference and the lower transmission power requirements of DTV system may enhance the co-existence of these services and may provide noncommercial FM stations with additional opportunities to increase their coverage. In fact, in most situations, protection of an FM station is improved with regard to DTV service when the FM station operates at power levels greater than 3 kW. We therefore continue to find that the measures that we have already taken adequately consider the interests of noncommercial FM stations with regard to continued use of channel 6 for television broadcasting. Accordingly, we are denying NRB's request. H. Requests for Changes in the Initial DTV Allotments 58. Channel 51 of San Diego, Inc. Channel 51 of San Diego, Inc. (Channel 51), licensee of NTSC station KUSI-TV, channel 51, San Diego, California, requests that we delete the channel 51 DTV allotment for Rancho Palos Verdes, California. The petitioner states that in a separate proceeding, it is requesting the deletion of the associated NTSC channel 44 allotment at Rancho Palos Verdes on the basis that the permittee, Rancho Palos Verdes Broadcasters, Inc. (RPVB), lacks reasonable assurance of a transmitter site and is not likely to construct the station. Channel 51 argues that it would be an inefficient use of the spectrum to allot a channel that will not be used, and that the southern California area already suffers from a shortage of spectrum. Channel 51 also submits that it does not dispute RPVB's status as a permittee that is eligible for a DTV allotment. 59. In response, RPVB asserts that Channel 51's petition is procedurally flawed. RPVB notes that its extension application had already been filed when the Commission allotted DTV channel 51, Rancho Palos Verdes, in the Sixth Report and Order. It adds that the petitions for reconsideration of the Sixth Report and Order did not raise the issue of RPVB's construction permit and whether its status should affect the DTV Table of Allotments. Therefore, according to RPVB, the current petition for reconsideration filed by Channel 51 is inconsistent with Section 1.429(b) of our rules. This provision permits the filing of a petition for reconsideration based on facts not previously presented only where there are changed circumstances, matters previously unknown to the party, or the Commission determines that consideration of the facts relied on is in the public interest. 60. Addressing the substance of Channel 51's petition, RPVB notes that Section 336(a)(1) of the Communications Act expressly limits initial eligibility for DTV licenses to persons that, as of the date of the issuance of the licenses, hold either a construction permit or license (or both) for a television broadcast station. RPVB states that it falls within this class, because it was a permittee on April 3, 1997, the date we issued the initial licenses, and adds that it is currently a permittee. RPVB claims that the statute does not give the Commission the authority to deny a DTV allotment to an otherwise qualified broadcaster, an assertion that Channel 51 disputes. In the alternative, RPVB states that if the Commission does have such discretion under the statute, it would be an abuse of that discretion to deny a DTV allotment to a party with a valid and outstanding construction permit, such as RPVB. 61. Even if we were to determine that Channel 51's petition is procedurally flawed, its importance in the development of digital television in southern California would warrant our discretionary review of the substance of the petition. Therefore, we need not address the procedural issue. 62. The parties do not dispute that RPVB, as a permittee of an unbuilt station, was eligible for an initial DTV license pursuant to the 1996 Act. Additionally, neither party proposes the allotment of a different DTV channel for KRPA-TV. Thus, the resolution of this issue revolves around whether RPVB should retain the NTSC construction permit. In this regard, we note that on July 24, 1998, the Chief, Video Services Division, granted RPVB's extension application, making the issues raised by Channel 51 moot. 63. Since RPVB has a valid construction permit for analog station KRPA-TV, we shall retain for it the channel 51 DTV allotment. Accordingly, we are denying Channel 51's request that we delete the channel 51 allotment for Rancho Palo Verdes from the DTV Table. However, we take this opportunity to clarify that, should we decide to deny a permittee's extension application, we would cancel the permit, delete the vacant analog channel from the TV Table of Allotments, and may delete the associated DTV channel from the DTV Table. Such a procedure is consistent with our earlier steps deleting vacant analog channels in preparation for the DTV Table in the Sixth Report and Order. 64. Cosmos Broadcasting Corporation. Cosmos also requests that we change the DTV channel 58 allotment for its station WFIE-TV in Evansville, Indiana to channel 46. Cosmos asserts that use of DTV channel 46 by WFIE-TV would not result in unacceptable interference to other broadcasters. It states that this change would eliminate potential adjacent channel problems with WEHT-TV in Evansville, Indiana and the expense associated with an out-of core allotment. It also argues that the benefits of this change would outweigh any negative impact the change might have. In its reply filing, Cosmos states that changing WFIE-TV's DTV channel to channel 46 would result in negligible interference to three stations (less than 0.2% to one station and less than 0.01% to the others), none of which are short-spaced to WFIE-TV. It states that all of the affected broadcasters have been served with Cosmos' petition and none have objected or opposed its proposal. Cosmos also submits that its request considers full accommodation to LPTV and TV translator stations. It therefore states that its request satisfies all of our requirements for changes to the DTV Table. 65. In the Allotment Reconsideration Order we denied Cosmos request to change the WFIE-TV's DTV allotment to channel 46 based on analysis that indicated that operation of the station's DTV service on this channel would impact and cause interference to other stations. We have reexamined Cosmos request with respect to its WFIE-TV using the data base for the current DTV Table of Allotments. Our analysis in this case indicates that operation of WFIE-TV's DTV service on channel 46 would not adversely affect the service of any other stations. Additionally, no other broadcasters have objected to this change. We therefore will change WFIE-TV's DTV channel to 46, as requested. 66. Journal Broadcast Corporation. Journal Broadcast Corporation (Journal) requests that we change the DTV allotment of its station KTNV-TV in Las Vegas, Nevada from channel 17 to channel 12. Journal states that its petition for reconsideration showed that DTV channel 12 could be allotted to KTNV-TV without causing prohibited interference or otherwise violating our DTV policies. It argues that in dealing with its petition in the Allotment Reconsideration Order we: 1) failed to provide sufficient rationale for our action rejecting Journal's request; 2) failed to respond to information in the record; 3) ignored comments by other parties in support of its request; 4) ignored the showing that the DTV channel 17 allotment would impose significant costs on Journal and create environmental issues; and 5) failed to adhere to our stated principle of providing broadcasters with flexibility to develop their own DTV allotment approaches and plans. 67. Journal further requests that, if we decide to maintain KTNV-TV's DTV allotment as channel 17, we also confirm that its proposal to use channel 12 complies with the criteria for modification of an initial DTV allotments in Section 73.623 of the rules. Specifically, Journal requests that we or our staff in the Office of Engineering and Technology confirm through a declaratory ruling or a letter that the analysis in the "Engineering Statement" attached to its initial petition for reconsideration demonstrates that the use of channel 12 by KTNV-TV would meet the requirements of Section 73.623 and that the technical criteria for a channel change have been met. It states that this analysis shows that its proposal to use DTV channel 12 would result in a net gain in interference free service by KTNV-TV and a net reduction in interference to other stations. Journal states that a ruling confirming this analysis would remove uncertainty and allow it to proceed more quickly in seeking to modify KTNV-TV's allotment through the procedures for requesting increases in DTV facilities set forth in Section 73.623. It further indicates that such a ruling would avoid the need for our Mass Media Bureau to spend additional resources to conduct a technical evaluation on a separate petition to modify the DTV Table, and would allow expedited review of that petition. 68. In our denial of Journal's request to change the DTV allotment of KTNV-TV to channel 12 in the Allotment Reconsideration Order, we found that use of this channel for KTNV- TV's DTV service would impact and cause increased interference to other stations. In evaluating Journal's instant request, we continue to find that changing KTNV-TV's DTV allotment to channel 12 would not meet the no new interference test for changes made on reconsideration. We therefore are denying Journal's request that we change this station's DTV allotment to channel 12 on reconsideration. We do, however, confirm Journal's analysis that the requested change would be acceptable under the 2% criterion for de minimis impact that is applied in evaluating requests for modification of initial DTV allotments under Section 73.623(c)(2) of the rules. Also, consistent with our desire to promote the rapid introduction of DTV service and to minimize the burden of this transition wherever possible, we will treat Journal's request herein as a petition for rule making seeking modification of a DTV allotment as indicated above. Thus, we will issue an appropriate notice of proposed rule making proposing to change KTNV-TV's DTV allotment from channel 17 to channel 12. It will not be necessary for Journal to submit a separate petition for rule making in this regard. 69. KOB-TV, L.L.C. In the Allotment Reconsideration Order, we changed the community of satellite station KOFT-TV's DTV allotment from Gallup, New Mexico to Farmington, New Mexico. KOB-TV, L.L.C. (KOB), licensee of KOB-TV, Albuquerque, New Mexico, requests reconsideration of the change in the community for KOFT-TV. KOB states that there is an outstanding rule making proceeding at the Commission, MM Docket No. 92-81, in which Pulitzer Broadcasting company (Pulitzer), KOFT-TV's licensee, is seeking to obtain that allotment change. KOB argues that while we have granted Pulitzer's application for modification of the construction permit for KOFT-TV to allow that station to be located at Farmington, the underlying rule making proceeding whereby the station's channel is to be reallotted to Farmington remains pending. KOB states that by listing both the NTSC and DTV channels for KOFT-TV as Farmington rather than Gallup, we appear to be prejudging the issues still pending in MM Docket No. 92-81. KOB therefore requests that we amend the DTV Table to specify KOFT-TV's NTSC and DTV channels as being allotted to Gallup. 70. Pulitzer Broadcasting Company (Pulitzer) opposes KOB-TV's petition. Pulitzer states that it had been issued a construction permit for channel 3 in Farmington at the time we issued the Allotment Reconsideration Order, and that we correctly viewed KOB-TV's petition for reconsideration of that decision as irrelevant to the DTV proceeding. It states that we properly based the DTV pairing on the coordinates set forth in Pulitzer's granted construction permit. It states that if KOB-TV's petition with regard to Pulitzer's construction permit is granted, then and only then, would it be appropriate for the Commission to change the paired channel in the DTV Table. 71. We disagree with KOB that changing the community of KOFT-TV's DTV allotment to Farmington prejudges issues still pending in MM Docket No. 92-81. At the time of the decision in the Allotment Reconsideration Order to locate KOFT-TV's DTV allotment at Farmington, we had already decided to relocate the existing NTSC channel 3 allotment at Gallup to Farmington and had issued a construction permit for Pulitzer to build facilities on that channel at Farmington. Our decision to change the community of KOFT-TV's DTV allotment was consistent with both of those actions. We therefore are denying KOB's request that we change the community of KOFT-TV's NTSC and DTV allotments from Farmington to Gallup. If we were to subsequently grant KOB's petition for reconsideration of our allotment decision in MM Docket No. 92-81, we would change community of the paired NTSC and DTV allotments on which KOFT-TV will operate at that time. 72. Maranatha Broadcasting Company, Inc. Maranatha Broadcasting Company, Inc. (Maranatha) is the licensee of WFMZ-TV in Allentown, Pennsylvania. In its petition for reconsideration of the Sixth Report and Order, Maranatha requested that we eliminate the "short spacing" between WFMZ-TV's channel 46 DTV allotment and the co-channel DTV allotment for WWAC-TV in Atlantic City, New Jersey. It stated that these stations' transmitters are located only 145.7 km apart, a DTV-to-DTV co-channel short spacing of 50.5 km. Maranatha argued this short spacing is egregious and discriminatory because both stations have NTSC channels outside the core spectrum and will not be able to continue their DTV operations on those channels at the end of the transition. In other filings, Maranatha also noted that there was an error in the FCC data base with respect to the directional antenna pattern of WFMZ-TV. It argued that the short-spacing between the WFMZ-TV and WWAC-TV DTV allotments is attributable to this error in the FCC data base, in that we did not recognize the full amount of interference that would occur between these stations. It therefore requested that we identify alternative allotments for one or both stations. 73. In the Allotment Reconsideration Order, we found that there were no alternative DTV allotments that would improve the situation between WFMZ-TV and WWAC-TV without affecting other broadcast stations. The FCC data base used in that analysis was modified to specify the correct directional antenna pattern for WFMZ-TV. We explained that in developing the DTV allotments, we used engineering criteria rather than spacing standards and we attempted to provide stations with allotments that would permit full replication of their NTSC service areas. Our analysis indicated that the channel 46 DTV allotment provided for WFMZ-TV meets this goal. We also observed that MSTV, in its ex parte filing, estimated that with this allotment WFMZ-TV will be able to replicate 99.8% of its existing service area and to serve 2,710,000 people, as compared to the 1,897,000 people served by its existing analog operations. Accordingly, we denied Maranatha's request. 74. In its Further Petition for Reconsideration, Maranatha argues that we failed to properly consider its earlier submissions which it claims showed that in deriving the DTV allotment for WFMZ-TV, we relied on erroneous information in our data base concerning the station's antenna. Maranatha submits that from the Allotment Reconsideration Order, it appears that we gave no consideration to its comments regarding the data base error, because our conclusion relied on area and population data provided by MSTV that substantially understate WFMZ-TV's NTSC service. 75. Maranatha acknowledges, however, that our staff informally advised its counsel and consulting engineer that the data base error had been corrected and that our staff also indicated that our analysis with the corrected data indicated that there would be some additional interference to the NTSC service of WBFF-TV, channel 45 in Baltimore, Maryland, but no additional interference to populations currently served by WFMZ-TV or WWAC-TV and not already subject to interference. It states that for that reason, we apparently believe the two channel 46 DTV allotments satisfy our DTV allotment objectives. Maranatha states that the result, however, is to sharply restrict, if not eliminate altogether, the potential for either station to improve its DTV facilities. It submits that beyond the transition period, the maximum power for WFMZ-TV's DTV facilities will be 500 kW, only half the maximum power for DTV stations. It further states that while it is theoretically possible that after the transition either WFMZ-TV or WWAC-TV might be able to operate on another less-restricted DTV allotment, such a shift would impose costs, delays and other burdens on the station seeking to relocate. 76. Maranatha states that it undertook engineering studies to attempt to locate an alternative DTV channel for either WFMZ-TV or WWAC-TV. It submits that, based on these studies, assignment of channel, 8, 25, or 50 to WWAC-TV would be superior to that station's current allotment. Maranatha therefore requests that we replace the channel 46 DTV allotment at Atlantic City New Jersey with channel 8 or another channel that meets our allotment objectives for WWAC-TV. 77. In comments responding to Maranatha's petition, the Association of Maximum Service Television, Inc. (MSTV) states that while it takes no position on whether we should make the specific allotment changes suggested by Maranatha, it does agree that Maranatha should have its channel allotment determined on the basis of accurate data. It states that if the data base was in error, that information should be corrected and the affected allotments reevaluated in light of the corrected information. 78. Mountain Broadcasting Company (Mountain), the licensee of WMBC-TV, Newton, NJ, states that Maranatha's proposed alternative to substitute channel 8 at Atlantic City would further exacerbate the interference to WMBC-TV'S DTV service on channel 8. Mountain argues that Maranatha's real concern appears to be its ability to expand WFMZ-TV's DTV coverage in the future and that this cannot take precedence over Mountain's ability to simply maintain its existing level of service. It states that we should consider modifications that would help preserve WMBC-TV's existing level of service and not further erode that service. WWAC, Inc. (WWAC), replying to Maranatha's petition and Mountain's comments, proposes that we change WWAC-TV's DTV allotment from channel 46 to channel 50. It states that this change would eliminate the conflict between WWAC-TV and WFMZ-TV on channel 46 and avoid creating a new conflict between WWAC-TV and WMBC-TV that would result from Maranatha's alternative proposal to change WWAC-TV's DTV allotment to channel 8. WWAC also notes that this allotment was proposed by MSTV and supported by WWAC-TV in December of 1997. In comments filed on July 30, 1998, replying to Mountain, Maranatha submits that it has found a mistake in one of the programs in our allotment software that results in undercounting of population in high density population areas. It states that an analysis using a corrected version of this program indicates that substitution of channel 8 for WWAC-TV's DTV allotment would have only minimal effect on other stations- the largest increase being 2.84 percent additional interference to the co-channel NTSC service of WGAL-TV. Maranatha submits that we should either adopt one of the proposed substitute DTV channels for WWAC-TV or devise new DTV channels for WFMZ-TV and WWAC-TV that eliminate the short-spacing between these stations' DTV operations. 79. As noted above, the DTV allotments were developed based on replication of stations' existing service areas. While we provided procedures for increasing the facilities and service areas of DTV stations included in the initial DTV Table, the potential for increasing the area served by a DTV station was not one of the criteria used in selecting channels for allotments. We further note that Maranatha acknowledges that we corrected our engineering base in response to its earlier petition. Our analysis at that time, using the correct antenna pattern for WFMZ-TV, indicated that the channel 46 was still the best available choice for this station's DTV channel. We also find that the software correction suggested by Maranatha does not materially affect the findings of our analysis. Notwithstanding this evaluation, we do, however, believe it is desirable to accommodate Maranatha's concerns regarding WFMZ-TV's DTV allotment to the extent that a solution can be provided that satisfies all affected broadcasters. In previous decisions in this proceeding we have recognized that some adjustments in the allotments may be necessary or desirable and have encouraged licensees to work out voluntary solutions to allotment problems. In this regard, we have analyzed the option to change WWAC-TV's DTV allotment to channel 50 that was proposed by Maranatha and agreed to by WWAC. Our analysis indicates that operation of WWAC-TV's DTV service on channel 50 would not impact or adversely affect other stations. It also appears that this option is acceptable to, and beneficial for, all affected parties. Accordingly, we are granting Maranatha's request for reconsideration and are changing WWAC-TV's DTV allotment to channel 50. 80. Noe Corp. L.L.C. Noe Corp. L.L.C. (Noe), the licensee of KNOE-TV in Monroe, Louisiana, requests that the DTV channel 8 allotment provided for station KPLC-TV in Lake Charles, Louisiana be changed. It states that use of DTV channel 8 by KPLC-TV will harm KNOE-TV's NTSC channel 8 operations. According to Noe, KPLC-TV's operation on DTV channel 8 would affect 19% of the population and 6.8% of the geographic area served by KNOE- TV. It asserts that to inflict new interference of this magnitude on KNOE-TV is unnecessary and inefficient. It also argues that this change will affect the DTV service of KPLC-TV. Specifically, Noe submits that KPLC-TV would receive interference from KNOE-TV to 1.9% of the population and 4.7% of the land area currently served within KPLC-TV's Grade B contour and that this is interference KPLC-TV would not receive if it operated on channel 53. It therefore requests that KPLC-TV be allotted DTV channel 53, the original DTV allotment for this station, or some other channel requested by Cosmos Broadcasting Company (Cosmos), the licensee of KPLC-TV. Noe notes that Cosmos, in its petition for reconsideration, proposed the allotment of channels 8, 13, 19, 38, 39 or 43 as KPLC-TV's paired DTV channel, with channel 8 being the most desirable. 81. Cosmos, the licensee of KPLC-TV, opposes Noe's petition. Cosmos submits that in granting its request for reassignment of KPLC-TV's DTV allotment from channel 53 to channel 8, we required that KPLC-TV operate its DTV facilities with reduced power and a directional antenna. It notes that these limitations were imposed to address concerns for interference to KNOE-TV. Cosmos states that Noe's showing is based on the erroneous presumption that KPLC-TV is authorized a maximum ERP of 17 kW. It notes that as listed in the DTV Table of Allotments, KPLC-TV's authorized ERP is only 3.2 kW. It further states that its own engineering analysis, using the operating facilities permitted in the DTV Table, confirms that interference to KNOE-TV from KPLC-TV would affect only 0.8% of the population within KNOE-TV's current Grade B contour. Cosmos states that this level of interference is hardly an actionable claim, as nearly one of every four NTSC stations will experience interference at this level or greater as a result of DTV. Nevertheless, Cosmos further states that it is prepared to work with Noe to address its concerns about interference and indicates that it has contacted Noe about possible options to minimize the predicted interference. 82. As noted by Cosmos, in changing KPLC-TV's DTV allotment to channel 8 we required that this station operate its DTV service with reduced power and a directional antenna in order to avoid interference to KNOE-TV. Our analysis indicates that operation of KPLC-TV's DTV service on channel 8 with a maximum ERP of 3.2 kW and a directional antenna as specified in the FCC Directional Antenna Data Base will not result in significant additional interference to KNOE-TV's co-channel NTSC service. We also take note that Cosmos is taking steps to work with Noe on possible options for minimizing interference. Accordingly, we are denying Noe's request that we allot a different channel for KPLC-TV's DTV service. 83. Paxson Communications Corporation. Paxson Communications Corporation (Paxson) seeks reconsideration of the DTV allotment for its station WPXM-TV in Miami, Florida. Paxson indicates that it wishes to relocate the DTV facilities of WPXM-TV to the Hollywood, Florida antenna farm. It argues that to comply with our standards and regulations two interdependent requests are required. First, it requests that WPXM-TV's DTV allotment be changed from channel 26 to channel 31; and, second, it requests that WPXM-TV's transmitter site be relocated to the Hollywood antenna farm (25o 57' 59" N.L. and 80o 12' 33" W.L.). Paxson states that it needs to relocate its DTV facilities because its existing NTSC tower cannot support additional DTV equipment and that the Hollywood site would avoid receiver antenna orientation problems. It states that these changes are consistent with our policy of providing broadcasters flexibility to develop alternative allotment approaches and would not cause increased interference except for a small number of people (18,587) in the service area of WTVJ- TV's channel 30 DTV operation in Miami. It submits that this represents only 0.5% of the population served by WTVJ-TV. Paxson states that an added benefit of this change would be to simplify the allotment scheme in the Miami area. It recognizes that in the Allotment Reconsideration Order we declined to consider relocation requests as a matter for reconsideration. Paxson states that while it agrees that simple relocation requests are more properly treated through other procedures, it would be arbitrary and capricious to exclude such sufficiently unique and interdependent cases such as presented by WPXM-TV. 84. Post-Newsweek Stations of Florida, Inc. (Post-Newsweek), the licensee of WPLG- TV in Miami, Florida opposes the Paxson petition. It argues that Paxson's request should be denied on procedural grounds since neither Paxson nor Channel 35 of Miami, the prior licensee of the station, filed comments, reply comments, a petition for reconsideration or a supplemental petition for reconsideration requesting such a change. Post-Newsweek states that it would be unfair if we were to grant Paxson's late-filed request after denying similar timely-filed requests. 85. In its reply, Paxson submits that its request for reallotment and relocation of its DTV channel is sought to remedy a tower availability issue that has arisen. It states that the only alternative available site in the Miami market that would allow WPXM-TV to operate without receiver antenna orientation problems is at the Hollywood antenna farm. Paxson indicates that while there were previous opportunities to file pleadings responsive to the Sixth Report and Order, circumstances such as this do not conveniently occur within the normal calendar deadlines for notice and comment rule makings. Paxson states that given the unique nature of its request, the circumstances in which the request arises and the fluid landscape of DTV allotments, grant of its request is warranted. 86. In the Allotment Reconsideration Order, we stated that requests for change of transmitter sites should be handled under the DTV allotment modification procedures provided in the rules and not as a matter for reconsideration. We noted that such changes generally entail detailed engineering solutions that are best dealt with as part of a specific application or a solution requiring agreement from all affected stations. We continue to believe that this approach is appropriate. Accordingly, while we understand the logic of Paxson's effort to resolve its tower availability problem through a change in both the channel and location of WPXM-TV's DTV operation, we find that this request should be handled through the procedures for modification of initial DTV allotments in Section 73.623 of the rules. In examining Paxson's request, we find that changing the channel and location of WPXM-TV's DTV allotment as requested would be acceptable under criteria in Section 73.623 of the rules. Therefore, consistent with our treatment of Journal's channel change request above, we will treat Paxson's request as a petition for rule making seeking modification of a DTV allotment. It will not be necessary for Paxson to submit a separate petition for rule making in this regard. 87. Pentacostal Revival Association, Inc. Pentacostal Revival Association, Inc. (PRA) is the operator of low power station, WJGV-LP in Palatka, Florida. It requests that the channel 49 DTV allotment provided to WNTO-TV in Daytona Beach, Florida be changed so that WJGV-LP can continue to operate on channel 49. PRA states that while its petition is procedurally overdue, there is good cause for this request for belated action. In this regard, it states that WJGV-LP provides public service that will be lost and that a station serving Daytona Beach, Florida is unable to serve the rural market of Palatka as effectively as a station that dedicates itself solely to that community. In addition, Palatka argues that the new DTV service that will displace its station will merely be providing duplicative programming of that station's analog service. It states that since WJGV-LP has been afforded must-carry status in the area, it should be afforded protection from displacement by a DTV station. 88. As we held in the Sixth Report and Order, affirmed in the Allotment Reconsideration Order, and again held in the Channel 60-69 Reallocation Order, low power stations remain secondary to both the analog and DTV service of full service broadcast television stations. Apart from a number of adjustments to protect low power operations where it would not affect the operations of full service stations, we have decided to generally decline to grant requests that we modify the DTV Table in order to protect existing low power television or TV translator stations. As we observed in those previous decisions, it is necessary to displace a significant number of low power TV and TV translator stations in order to implement DTV. We therefore are denying Pentacostal's request that we change the DTV allotment of WNTO-TV so that WJGV-LP can continue to operate on channel 49 We have, however, in recognition of the benefits provided by low power stations, made a number of rule changes for such stations to minimize the impact of DTV on their operations and to provide them with additional flexibility to find replacement channels when necessary. If spectrum is available, the petitioner may be able to switch its operations to another channel or seek other solutions available under the rules. 89. Ramar Communications Inc. Ramar Communications Inc. (Ramar) states that certain changes in the DTV Allotment Table have made a substantial negative impact on its station KJTV-TV in Lubbock, Texas. It argues that previously KJTV-TV was allotted DTV channel 35 and that the Sixth Report and Order indicated that this channel would provide for 100% replication of KJTV-TV's NTSC service. It observes that the Allotment Reconsideration Order, however, indicates that KJTV-TV's DTV channel 35 operations will provide for only a 94.5% service match. Ramar states that this change is apparently a result of our changing the DTV allotments for KOBR-TV in Roswell, New Mexico and KLBK-TV in Lubbock, Texas from channels 38 and 40 to channels 35 and 38, respectively, in order to accommodate an existing low power TV or TV translator station. It states that protection of an LPTV station should not be allowed to have such a negative impact on the viability of an existing full-power station. It requests that we make the necessary changes to reinstate KJTV-TV to 100% service replication. Ramar suggests that a viable solution to this problem would be to return KOBR-TV to DTV channel 38 and KLBK-TV to DTV channel 40. Ramar further states that in this case the changes made in the DTV Table to protect low power stations contradict our declarations that we made channel changes to preserve low power operations only where they would not affect the operations of full service stations and that we considered replacement channels acceptable only if they would provide the same replication. It contends that the changes in this instance did not meet this policy. 90. The Stanley S. Hubbard Revocable Trust (Hubbard), licensee of KOBR-TV, filed comments in support of Ramar's petition. Hubbard states that in the Allotment Reconsideration Order, we changed KOBR-TV's DTV allotment from channel 38 to channel 35 and reduced its ERP to 839 kW. It submits that this change reduced KOBR-TV's service replication from 100% to 97.2%; and also reduced the service replication of Ramar's KJTV-TV as indicated above. Hubbard argues the changes made to the DTV channels of KOBR-TV and KLBK-TV do not meet our test that alternative channels would be considered for full service stations to preserve LPTV stations only if they provided the same replication. It therefore supports Ramar's request that we reinstate the original DTV allotments for these two stations that were in the Sixth Report and Order. MSTV, in its comments, states that while it has not assessed the merits of Ramar's specific contentions, it strongly supports the underlying premise of Ramar's petition to maintain the secondary status of low power stations. It urges that the channel changes made to protect low power stations be reexamined to ensure that no full power station suffered a reduction in DTV coverage or an increase in interference to their NTSC service. 91. We have re-examined the changes made to the DTV allotments of KOBR-TV and KLBK-TV in light of the concerns expressed by Ramar and Hubbard. We find that the reductions in service replication observed by these petitioners do reflect the changes made to the DTV channels of KOBR-TV and KLBK-TV to preserve low power service. As these changes impact the ability of KJTV-TV and KOBR-TV to replicate their existing service areas, they are inconsistent with the standard we used in determining the acceptability of changes to protect low power stations and therefore were made in error. To remedy this error we are returning the DTV allotments of KOBR-TV and KLBK-TV to channels 38 and 40, respectively, as specified in the Sixth Report and Order. 92. Warwick Communications, Inc. Warwick Communications, Inc. (Warwick) requests that we review its previous request to substitute DTV channel 31 for the DTV channel 52 allotment provided for its station KFXK-TV in Longview, Texas. It states that in the Allotment Reconsideration Order we did not address its DTV channel 31 proposal, but rather simply denied its initial request for DTV channel 26 contained in its petition for reconsideration. Warwick states that in subsequent comments filed in response to MSTV's ex parte submission, it had proposed that KFXK-TV's allotment be changed to channel 31. Warwick further represents that although the channel 31 allotment was not contained in the MSTV submission, it was subsequently reviewed by MSTV and was consistent with the standards used to develop MSTV's proposed changes. Warwick submits that its DTV channel 31 proposal is fully compatible with our DTV objectives. In addition, it states that substituting DTV channel 31 for channel 52 would eliminate short spacings to the NTSC channel 54 allotment in Longview, Texas for which there are pending applications. 93. We have evaluated Warwick's request that we change KFXK-TV's DTV allotment to channel 31. Our analysis indicates that operation of KFXK-TV's DTV service on channel 31 would not adversely affect other stations and would otherwise be consistent with our DTV allotment policies and objectives. We therefore are changing KFXK-TV's DTV allotment to channel 31 as requested. I. International Negotiations 94. On July 22, 1998, the FCC and Mexico's Secretariat of Communications and Transportation (SCT) signed a Memorandum of Understanding (MOU) that establishes procedures for implementing DTV service along the United States/Mexico border. The MOU contains the following major provisions: 1) a list of mutually acceptable second channel DTV allotments for each country; 2) the procedures to be used for notifying each administration of plans to implement DTV service relative to an allotment; and 3) the methods to be used by each administration in evaluating the acceptability of proposed DTV facilities. The notification procedures set forth in the MOU provide for an expedited process through which most authorized DTV stations can begin operation within 15 days of notification to the other country. In developing the list of mutually acceptable DTV allotments for each country, it was necessary to change the channel of the DTV allotment for KZIA-TV, Las Cruces, New Mexico from 36 to 47. Our analysis indicates that changing KZIA-TV's DTV allotment to channel 47 will not result in interference to other stations. We have advised the station of this matter and it has not objected to the change. Accordingly, we are therefore changing KZIA-TV's DTV allotment to channel 47 to comport with the MOU. J. Minimum Hours of Operation 95. On September 17, 1998, the Dispatch Broadcast Group (Dispatch), permittee of DTV stations WBNS-DT, Columbus, Ohio and WTHR-DT in Indianapolis, Indiana, submitted a written ex parte presentation requesting that we reconsider the requirement under Section 73.624(b) of the rules that once a DTV station commences operations, it must operate its DTV station any time its associated NTSC station operates. Dispatch asks that for the next six months, or until such time as DTV receivers are determined to be available for retail in sufficient supply and high definition (HDTV) programming is available from a station's affiliated network, we allow DTV stations to operate in accordance with the less demanding minimum operating schedule for new NTSC stations in Section 73.1740(a)(2) of the rules. In presenting this request, Dispatch states that it is committed to providing free DTV service to viewers in Columbus and Indianapolis as soon as practicable and that to that end, despite having until May 1, 2002, to begin DTV operation in Columbus under Section 73.624(d) of the rules, has filed for and received construction permits for both of its DTV stations and is now fully prepared to commence their operation. 96. Dispatch states that while it is prepared to incur the costs to provide maximum coverage to its viewers, i.e. operate its stations during the same hours it operates its NTSC stations, it would make no sense to incur these monthly expenses now, when there are no DTV viewers because there are no DTV sets available in either of its markets. Dispatch further states that the prospect for significant availability of DTV receivers in the Columbus and Indianapolis markets is a minimum of six to 12 months away. It states that it plans to promote HDTV service using DTV sets placed in as many publicly accessible locations as possible throughout each market to encourage and develop demand for the service. Dispatch submits that while a requirement to operate DTV stations on the same schedule as their associated NTSC stations may ultimately be necessary to build momentum to the transition to DTV, such a requirement is currently premature and will discourage construction and promotion of HDTV in the early phases of the transition. It further argues that there is little risk to our ultimate goal of encouraging a rapid transition to DTV from the policy change proposed herein, because after having made the significant investment to construct their DTV stations, permittees/licensees will have every incentive to operate their stations once the market develops. It states that requiring stations to immediately operate as if the market has already developed will delay the transition by discouraging stations from commencing operation until they are required to do so by the rules. 97. We agree with Dispatch that it is desirable to provide stations with greater flexibility in scheduling their DTV operations in the early phases of the DTV implementation process. At the same time, we also believe it is important that stations operate their DTV services at times when they also provide NTSC service in order that programming be available to consumers as they obtain DTV receiving equipment. The DTV minimum hours requirement is an integral part of the requirement that digital broadcasters provide one free over-the-air program service and provides a convenient and relatively unintrusive measure of compliance with that requirement. We believe the best course for addressing the concern presented by Dispatch is to allow stations, both commercial and noncommercial, that voluntarily commence DTV service prior to the applicable construction deadline to have complete discretion to determine the schedule on which they operate their DTV service, and as of their various DTV construction deadlines to require that they operate in accordance with Section 73.624(b). We believe this will encourage permittees/licensees to begin DTV operations as soon as possible and thereby promote the more rapid introduction of this new service. In general, we expect that DTV receivers will be available in all markets in accordance with our plan of different required starting dates for stations in markets of different size. Accordingly, we are modifying Section 73.624(b) to provide that DTV stations will not be subject to any minimum operating schedule before the date on which they are required to commence operation under Section 73.624(d), and thereafter will be subject to the existing requirement under Section 73.624(b) that they operate, i.e., provide at least one free over-the-air video program at no charge to viewers, at any time their associated NTSC stations are operating, i.e. providing a video program signal. 98. In granting Dispatch's request for relief from the operating requirements as indicated above, we also note that in the Service Reconsideration Order we declined to grant a request by Chronicle Publishing Company (Chronicle) that we modify the requirement that broadcasters provide a free DTV video programming service when their associated NTSC station is broadcasting. Chronicle specifically requested that we exempt broadcasters from providing a free DTV video signal between the hours of midnight and 6:00 a.m. (even though the analog station is broadcasting) in order to allow licensees to conduct maintenance or resolve any technical or other unanticipated problems arising from the use of new digital technology, especially in the UHF band. We found that the remedy suggested by Chronicle for this concern was overbroad. We stated that in the event that stations experience unexpected technical difficulties with the required transition to DTV such as those outlined by Chronicle, they may request special temporary authority to operate at variance from our required minimum digital television service on a case-by-case basis so that such technical difficulties can be resolved. We continue to believe it is appropriate to require broadcasters to provide a free DTV video signal between the hours of midnight and 6:00 a.m. when the associated NTSC station is broadcasting. In this regard, the Chronicle's request differs from that of Dispatch in that Chronicle sought a permanent exemption in order to allow stations to perform maintenance and resolve technical problems. As noted above, we found that there are other, more appropriate remedies for addressing such problems. Dispatch's request, on the other hand, concerns an economic issue relating to stations that commence operation of DTV service early. The solution we have provided for that issue is limited to operations by stations that commence service early, i.e., before the date at which they are required to commence operation under Section 73.624(d). Once the date for construction has passed, all DTV stations will be required to transmit at least one free video program service at all times that they broadcast a video program service on their NTSC channel. K. Other Issues 99. Pikes Peak Broadcasting Company. Pikes Peak Broadcasting Company (Pikes Peak), the licensee of station KRDO-TV, DTV channel 24 in Colorado Springs, Colorado, requests reconsideration of the channel 26 DTV allotment provided for station KTSC-TV in Pueblo, Colorado and licensed to the University of Southern Colorado (USC). Pikes Peak states that the coordinates for KTSC-TV are in error and reflect a previous construction permit. It states that the authorization to move KTSC-TV's transmitter expired on February 28, 1993, and that, while an application to extend the construction permit had been filed, the Commission has not ruled on the extension request. Pikes Peak states that the correct transmitter site is at Baculite Mesa, N.L. 38o 22' 25" and 104o 33' 27" W.L. It states that in comments filed in response to MSTV's ex parte filing, it pointed out that the proper coordinates for KTSC-TV were not specified. It requests that we correct the transmitter site coordinates for KTSC-TV to reflect that station's current site and change the station's DTV channel to channel 46. 100. USC opposes Pikes Peak's petition, stating that contrary to Pikes Peak's contention, the coordinates for KTSC-TV are accurate. USC states that KTSC-TV's DTV allotment is correctly based on the facilities authorized in its 1991 construction permit to relocate the station to Cheyenne Mountain. Pikes Peak, in its reply, states that USC fails to address the critical issue of its announced plans not to build at Cheyenne Mountain. It states that USC has announced publicly to NAIA, in press releases and in its petition for rule making, that it has no intention of ever building at Cheyenne Mountain. It asserts that not to change KTSC-TV's DTV allotment is asking for unnecessary delay in the DTV roll out because of the interference that construction at Baculite Mesa will cause. 101. As indicated in the Sixth Report and Order, DTV allotments were based on licenses and construction permits granted as of April 3, 1997. As of that date, USC had been granted a construction permit to relocate KTSC-TV to a new site at Cheyenne Mountain. The fact that USC's application for extension and modification of that construction permit is still pending does not affect the validity of the station's DTV allotment. Moreover, USC has not indicated to this Commission that it does not intend to build at Cheyenne Mountain under its construction permit. With regard to Pikes Peak's request that KTSC-TV's DTV allotment be changed to channel 46, Pikes Peak has not provided any information on why such a change is necessary or appropriate. Our review of the channel 26 DTV allotment provided for KTSC-TV indicates that this channel is satisfactory for that station's DTV operation. Accordingly, we are denying Pikes Peak's requests to change the coordinates of KTSC-TV's DTV allotment to those of Baculite Mesa and to change this allotment to channel 46. 102. Viacom Inc. Viacom Inc. seeks further reconsideration with regard to the channel 36 DTV allotment for its station KSTW-TV in Tacoma, Washington. It argues that we used the incorrect antenna height above average terrain (HAAT) for KSTW-TV, which resulted in a reduced DTV effective radiated power (ERP) for this station. It asks that we amend the DTV Table to reflect an antenna HAAT of 271 meters and an ERP of 1000 kW. 103. The antenna HAAT and ERP specified for KSTW-TV represent the facilities needed to replicate the NTSC service area predicted for this station based on an outstanding construction permit. We have examined the change requested by Viacom for KSTW-TV and have determined that the station's DTV power could be raised to 1000 kW if the antenna HAAT is correspondingly lowered to 271 meters. Our analysis indicates that operation of KSTW-TV's DTV service at this power and antenna height would in fact result in lower potential for interference to other stations. Accordingly, we are modifying DTV facilities specified for KSTW-TV in Appendix B to indicate an antenna HAAT of 271 meters and an ERP of 1000 kW, as requested. 104. Corrections/Changes. In the DTV Table of Allotments included in the rule amendments set forth in Appendix E of the Allotment Reconsideration Order, a number of DTV allotments were inappropriately specified with the "c" designation that designation that indicates a station operating on the allotment must operate with precise carrier frequency control. We are removing the "c" designation from those allotments where its application was in error. We are also replacing existing vacant noncommercial reserved NTSC allotments with new noncommercial reserved DTV allotments where feasible, as indicated in the Sixth Report and Order. As indicated in that decision and the Allotment Reconsideration Order, at the end of the transition period we will, on our own motion, also consider establishing additional DTV noncommercial reserved allotments for existing noncommercial reserved NTSC allotments that cannot be replaced at this time. 105. In the first sentence of Section 73.622(e)(1) of the rules, the reference to Section 73.625(d) is corrected to read Section 73.625(b). 106. In the Allotment Reconsideration Order, we granted KMSB-TV, Inc.'s request to correct the community designation of its station KMSB-TV from Nogales, Arizona to Tucson, Arizona and to change the station's reference coordinates from 31o 42' 18" N.L. and 110o 55' 26" W.L. to 32o 24' 54" N.L. and 110o 42' 59" W.L. In a letter of April 20, 1998, KMSB-TV observes that Appendix B of the Allotment Reconsideration Order does not reflect the authorized change of reference coordinates for KMSB-TV and requests that we correct this error. We have amended Appendix B to reflect the location of KMSB-TV at the correct coordinates. 107. In a Report and Order adopted on January 14, 1998, the Commission reallotted the channel 18 NTSC allotment of station KSCI-TV from San Bernardino, California to Long Beach, California. This change in KSCI-TV's community of license did not involve a relocation of the station's transmitter site. In accordance with that Report and Order, we are modifying the community of KSCI-TV's channel 18 DTV allotment to reflect the change in the station's NTSC community of license from San Bernardino to Long Beach.. V. PROCEDURAL MATTERS 108. Paperwork Reduction Act of 1995 Analysis. This Memorandum Opinion and Order has been analyzed with respect to the Paperwork Reduction Act of 1995, Pub. L. No. 104-13, and found to impose no new or modified information collection requirements on the public. 109. Supplemental Final Regulatory Flexibility Analysis. With respect to this Memorandum Opinion and Order, the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis, under the Regulatory Flexibility Act, of the possible significant economic impact on small entities of the rules in this document. The Supplemental FRFA is set forth as Appendix C. 110. Ordering Clauses. In accordance with the actions described herein, IT IS ORDERED THAT Part 73 of the Commission's rules IS AMENDED as set forth in Appendix E. In addition, IT IS ORDERED that the rule amendments set forth in Appendix D SHALL BE EFFECTIVE 30 days after publication in the Federal Register. This action is taken pursuant to authority contained in Sections 4(i), 7, 301, 302, 303, 307 and 336 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 157, 301, 302, 303, 307 and 336. 111. IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference Operations Division, SHALL SEND a copy of this Memorandum Opinion and Order, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 112. For additional information concerning this matter, contact Bruce Franca, Office of Engineering and Technology, (202) 418-2470, Alan Stillwell, Office of Engineering and Technology, (202) 418-2470, or Robert Eckert, Office of Engineering and Technology, Technical Research Branch, (202) 418-2433. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary APPENDIX A PETITIONING AND OPPOSING/COMMENTING PARTIES Parties Filing Petitions for Reconsideration 1. Beaumont 21 L.L.C. 2. Channel 51 of San Diego, Inc. 3. Ch 32 Hispanic Broadcasters, Ltd. 4. Cosmos Broadcasting Corporation 5. Davis Television Pittsburg, LLC; Davis Television Corpus Christi, LLC; Davis Television Topeka, LLC; and Davis Television Duluth, LLC (collectively Davis Television) 6. Detroit Educational Television Foundation 7. Educational Television Association of Metropolitan Cleveland 8. Fant Broadcasting Development L.L.C. (Plaquemine, Louisiana) 9. Fant Broadcast Development L.L.C. (Jackson, Mississippi) 10. Fant Broadcast Development L.L.C. (New Albany, Indiana) 11. Fox Broadcasting Company 12. Green Bay 44, L.L.C. 13. Island Broadcasting Ltd. 14. Journal Broadcast Corporation 15. KOB-TV, L.L.C. 16. Maranatha Broadcasting Company, Inc. 17. Milwaukee Area Technical College District Board 18. Mississippi Authority for Educational Television 19. National Religious Broadcasters' Association 20. Noe Corp. L.L.C. 21. Oregon Family Broadcasting Association 22. Oro Valley 52, L.L.C. 23. Pappas Telecasting of America (Owensboro, Kentucky) 24. Pappas Telecasting of America (Charleston, West Virginia) 25. Pappas Telecasting of America (Vergennes, Vermont) 26. Pappas Telecasting of the Midlands and Pappas Telecasting of Southern California (Ames, Iowa and Avalon, California) 27. Paxson Communications Corporation (also filed supplement to petition) 28. Pelican Broadcasting Corporation (Cheney, Washington) 29. Pelican Broadcasting Corporation (Marshfield, Missouri) 30. Pentacostal Revival Association, Inc. 31. Pikes Peake Broadcasting Company 32. Ramar Communications Company 33. South Central Communications Corporation, SWMM/Knoxville Corporation, and Channel 26, Ltd. (collectively South Central Communications Corp.) 34. Viacom, Inc. 35. Warwick Communications, Inc. 36. Western New York Public Broadcasting Association 37. WXXI Public Broadcasting Council 38. Zavaletta Broadcasting of Pueblo 39. Zavaletta Broadcasting of Sherman Parties Filing Oppositions/Comments 1. America 51, L.P. 2. Association for Maximum Service Television, Inc. 3. Channel 3 of Corpus Christi, Inc. 4. Civic License Holding Company, Inc. 5. Cosmos Broadcasting Corporation 6. The Stanley S. Hubble Revocable Trust 7. Independence Television Company 8. Jovon Broadcasting Corporation 9. Kentucky Authority for Educational Television 10. Lee Enterprises, Inc. 11. Montgomery Communications, Inc. 12. Mountain Broadcasting Corporation 13. Mountain Lake Public Telecommunications Council 14. Northeast Kansas Broadcast Service, Inc. 15. Oregon Television, Inc. 16. Post-Newsweek Stations of Florida, Inc. 17. Pulitzer Broadcasting Company 18. Rancho Palos Verdes Broadcasters, Inc. 19. Sinclair Broadcast Group 20. The University of Southern Colorado 21. WATE, L.P. Parties Filing Replies to Oppositions/Comments 1. Channel 51 of San Diego, I