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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* DA 96-925 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Request for Interpretation or Waiver ) of Section 95.861(c), Concerning ) Notification of Potential Interference ) from Interactive Video and Data Service ) (IVDS) Systems ) ORDER Adopted: June 17, 1996; Released: June 21, 1996 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On October 10, 1995, ITV, Inc. (ITV), an Interactive Video and Data Service (IVDS) licensee, filed a request for clarification or waiver of Section 95.861(c) of the Commission's Rules. Section 95.861(c) requires IVDS licensees to notify all households located both within a TV Channel 13 Grade B predicted contour and the IVDS system service area of the potential for interference to Channel 13 TV reception. Section 95.861(c) also requires IVDS licensees to offer to eliminate such interference if it occurs. ITV requests that it be permitted to satisfy this notification requirement by newspaper or broadcast advertising, rather than by mail. We placed ITV's request on public notice on January 31, 1996. We received eight comments and three reply comments in response to the Public Notice. By this Order, we are granting ITV's declaratory ruling request. We find that Section 95.861(c) does not mandate that notification be accomplished by mail. This determination makes the requested waiver unnecessary, and we therefore dismiss that associated waiver request as moot. II. BACKGROUND 2. The notification requirement of Section 95.861(c) of the Commission's Rules is one of a series of requirements intended to prevent interference from IVDS operations to TV Channel 13 reception. When the Commission initially proposed this requirement, it did not specify any particular means of notifying households nor any timetable for such notification. 3. In the Report and Order in GEN Docket No. 91-2 where Section 95.861(c) was adopted, the Commission noted that two commenters had addressed the notification issue. KCOP [Television, Inc.] states that our proposal to require IVDS licensees to resolve interference complaints does not impose a time period for when an IVDS licensee must inform TV households about potential IVDS interference. KCOP suggests that we require IVDS licensees to mail notifications to households no more than two weeks before and no more than two weeks after initiation of IVDS service, and that we require licensees to provide similar notification to all households in TV Channel 13 service areas twice per year for the first two years of service and once each year thereafter. [Educational Broadcasting Corporation] also recommends use of this notification schedule, but would require the IVDS licensee to notify all households within the TV station's actual Grade B contour rather than just the IVDS operator's own customers. The Commission determined that: With regard to the notification schedule proposed by KCOP, we feel that schedule is overly burdensome. However, we agree that the time period for notifying TV viewing households of the potential for interference from IVDS needs to be stated precisely. KCOP's suggestion that we require IVDS licensees to mail notifications to TV households no more than two weeks before and no more than two weeks after initiation of IVDS service in the area is a reasonable one. Accordingly, we will adopt the general interference potential notification and reduction procedures set forth in the Notice, modified by KCOP's initial notification suggestion as stated above. See Section 95.861, set out in Appendix A. As the above quotation reflects, the Commission's modification of its proposed rule focused on the time period for notifying TV viewing households of the interference potential, adopting a short-term (or "initial") timetable (or "schedule") centered around initiation of service, and rejecting a long-range one that would continue for years after the licensee initiated the IVDS system. The Commission neither incorporated KCOP's proposed mailing requirement into the rule nor stated that it was adopting such a requirement. III. THE ITV REQUEST AND COMMENTS 4. In the ITV Request and its reply comment, ITV states that it has written its local Channel 13 licensee three times in an effort to obtain written consent to dispense with the required notification, and it has received no response. In this connection, ITV notes that the Commission's Rules do not require a Channel 13 licensee to cooperate with the IVDS licensee. ITV estimates that the cost of mailing individual notifications to the approximately 1.5 million households in the affected geographic area would be approximately $ 1.4 million. ITV bases this estimate on a cost of $0.88-0.98 per piece of mail, delivered to households within the expected system coverage of its entire service area. ITV states that its long-term business plan contemplates such coverage. ITV also states that, by contrast, the cost of its system's initial "build-out" is estimated to be only $50,000. ITV concludes that "this mailing cost is so burdensome as to render ITV's IVDS system -- and that of any other IVDS system in a market with a TV Channel 13 Grade B contour (where the Channel 13 licensee does not consent) -- economically unfeasible [sic]. In fact, the potential costs of making the interference notification is the last major barrier to ITV's initiation of commercial IVDS service in San Francisco." ITV also notes that "roughly 60%" of households nationwide receive broadcast programming via cable television, and are thus immune to potential IVDS interference. 5. In the ITV Request, ITV seeks permission to satisfy the notification requirement by newspaper or broadcast advertising, rather than by mail. In particular, ITV requests that it be permitted to utilize the procedures specified in Section 73.3580 of the Commission's Rules, 47 C.F.R.  73.3580, a rule that prescribes the manner in which commercial broadcasters are required to give local public notice of the filing of their broadcast applications. Section 73.3580 sets forth a detailed framework for providing notice by newspaper announcements or by announcements broadcast over the air, based on the type of application filed and the types of newspapers that are published in the area. ITV also requests that, if broadcast notification is required, we also require the Channel 13 broadcaster to provide the required advertising time in a non-discriminatory manner at its lowest unit cost. 6. Six of the commenters support the ITV Request, while two oppose it. America 52 East, Banas, Pegasus, and RTT agree with ITV that a mailing requirement can be very expensive and time consuming, and that these negative aspects of mailing outweigh the positive. America 52 East and RTT argue that, because cable television systems are not faced with potential IVDS interference, and because some households choose not to view Channel 13, many mailed notices would be wasted. CTI states that, with the general proliferation of "junk mail," many mailed notices would be discarded unread. Finally, Pegasus states that mailed notices may be confusing to a household because the household may not understand why it has received such individualized attention. 7. America 52 East, Banas, and CTI note that Section 95.861(e) of the Commission's Rules, 47 C.F.R.  95.861(e), requires that IVDS licensees investigate and eliminate any subject interference within 30 days of receiving written notice of the problem, or discontinue operations. These commenters argue that this requirement assures that complaints will be resolved immediately, regardless of how households receive notification or through whom the IVDS licensee receives word back of interference. In addition, America 52 East argues that, regardless of notification method, any Channel 13 licensee mistakenly receiving an interference complaint has an incentive to notify the IVDS licensee of the problem promptly, and problems should thus ultimately be resolved in all instances. 8. Americom and Banas agree with ITV that Section 73.3580, supra, provides a good model for IVDS notification procedures. Alternatively, Pegasus suggests as a model the recent cable television law permitting operators to notify subscribers of service or rate changes by "any reasonable written means." 9. Cosmos and MSTV oppose ITV's petition, stating that mailed notification is the most effective way to ensure that Channel 13 viewers are aware of the source of potential interference. MSTV argues that viewers tend to change channels or turn off the television when interference occurs, and subsequently do not report the interference; also, individual mailings, as opposed to newspaper advertisements, are more likely to encourage viewer reports of interference. Cosmos and MSTV argue that, absent mailed notification, viewers are more likely to direct interference complaints to the Channel 13 licensee, thus unfairly shifting the burden of initial response. Cosmos also argues that broadcast notification might leave viewers with the impression that it is appropriate to direct such complaints to the Channel 13 licensee. 10. Cosmos states that the Report and Order "clearly indicate[s]" a mailing requirement, and that licensees such as ITV were on notice of this prior to being awarded a license. In addition, Cosmos states without citation that the Commission "concluded that such a requirement would not be unduly burdensome for IVDS licenses," and that no party sought reconsideration of the issue. Cosmos also argues that ITV overstates its potential mailing costs by including its entire service area in the estimate, rather than merely the initial build-out area. MSTV states that it commented in favor of individualized notification in a comment it submitted in the proceeding that resulted in the Report and Order. MSTV states, however, that the Commission did not intend "to impose on IVDS providers conditions so burdensome that offering IVDS would become infeasible." MSTV therefore suggests that Section 95.861(c) be interpreted to require mailed notification only to households in "an area near and around (two to five miles [from]) . . . the installation of the base station for IVDS." 11. In reply, Banas states that Section 95.861(c) requires notification to all households within the prescribed overlap of Grade B predicted contour and the IVDS service area and thus does not permit the interpretation suggested by MSTV. Banas also argues that MSTV and Cosmo's support for "high-cost mailings" is an attempt to delay or defeat the initiation of IVDS service. IV. DISCUSSION 12. The plain language of Section 95.861(c) of the Commission's Rules does not require that notification by the IVDS licensee be accomplished by a specific means. While the Commission did state in the Report and Order that KCOP's suggestion to require mailed notifications to TV households within two weeks of initiating IVDS service was a reasonable one, a close reading of the context of that statement reveals that the Commission's focus was on the reasonableness of notification at the time of initiation of service, not on the method of the notification. The Commission's discussion at that point in the text recognized three elements to KCOP's proposal: a short-term or "initial" schedule for notification, a long-range schedule, and a mailing requirement. The Commission also stated that KCOP's proposed schedule was "overly burdensome," yet agreed that the "time period for notif[ication] . . . need[ed] to be stated precisely." The Commission then stated that KCOP's proposed initial schedule and mailing requirement were "reasonable." Finally, the Commission stated that it would "adopt" KCOP's "initial notification suggestion as stated above," and then immediately cited the resultant rule. The rule, however, does not contain the mailing requirement -- just the time period for notification -- thus making clear that the Commission's reference to KCOP's "initial notification suggestion" related only to the aspect of KCOP's proposal that concerned the time period surrounding initiation of the licensee's IVDS system. 13. While the Commission clearly considered notification by mail to be a reasonable method of informing the public of potential IVDS interference, it did not foreclose other forms of notification. Indeed, in other contexts in which time-sensitive notifications are required, the Commission authorizes licensees to provide notification by newspaper or broadcast publication (e.g., to notify the public of the filing of broadcast applications) or by other reasonable written means (e.g., to notify cable subscribers of service or rate changes). These other contexts concern matters equally important to that of notifying households of the potential for interference from IVDS operations. Thus, we disagree with Cosmos's and MSTV's assertion that only notification by mail could be an adequate method of notification for IVDS. In addition, we expect that properly written or stated non-mailed notifications can be as effective as mailed notifications at informing households of the interference potential from IVDS and the recourse available. Finally, we note that ITV and the commenters state significant concerns regarding the potential costs of notification by mail. Indeed, in the Report and Order in GEN Docket No. 91-2, the Commission specifically expressed concern about placing an undue burden on IVDS licensees with respect to the notification requirement. As a result, we do not believe that the Commission intended to impose a mailing notification requirement that would exceed the costs of the licensee's build-out. Under such circumstances, we conclude that a requirement of notification by mail would present an undue burden on licensees. 14. Thus, the Bureau intends to accept all reasonable forms of notification as satisfying the notification requirement of Section 95.861(c) of the Commission's Rules. We leave the selection of the particular means of notification to the discretion of the IVDS licensee. We, however, remind IVDS licensees of their obligation to investigate and eliminate interference to television broadcasting as indicated in Section 95.861(e) of the Commission's Rules, 47 C.F.R.  95.861(e). We will not, as ITV requests, specifically mandate that Channel 13 broadcasters provide advertising time in a non-discriminatory manner at its lowest unit cost, as that suggestion is better suited to a rulemaking proceeding. V. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED that ITV's request for declaratory ruling concerning Section 95.861(c) of the Commission's Rules, 47 C.F.R.  95.861(c), IS GRANTED to the extent described above. This action is taken pursuant to Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, by delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131 and 0.331. 16. IT IS FURTHER ORDERED that ITV's request for waiver IS DISMISSED. 17. IT IS FURTHER ORDERED that this action IS EFFECTIVE UPON RELEASE. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar Chief, Wireless Telecommunications Bureau