WPCY 2BRT 3|P )Times New Roman (TT)Times New Roman (Bold) (TT)Times New Roman (Italic) (TT)Times New Roman (TT)pt_230_1HPLAS4.WRSSx  @,, YX@21@3P ZE3|jTimes New Roman (TT)Times New Roman (Bold) (TT)n ItalicHP LaserJet 4/4MtScript_230_1HPLAS4.WRSSXj\  P6G;,, YXP|D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd X-#XP\  P6Q DXP#6G;\ TXP2EcXvpi X-#XP\  P6Q+XP#n7PC2X DXP\  P6QXP.o7UC2XxXU4  pQXpW!0(X h0\  P6QhP5PC2X3EXP*f9 xQXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd>?Footnote;Íčfootnote tex#<'p #FxX  Pg9CXP#header=Ax 4 <D  #FxX  Pg9CXP# reference>;#FxX  Pg9CXP#2E?~V@@iAA^=CBODitemizeX1?&V 8F ` hp xr#FxX  Pg9CXP#header2@I ` hp x`    #FxX  Pg9CXP# heading 3AF` hp x #FxX  Pg9CXP# footer!B!!#d\  PCP#2 LXFKtGKID7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;XW!@(#,9h@\  P6G;hP\5hC:,%Xh*f9 xr G;XX"i~'^#)0<d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2.V@O@R"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddd<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd X'   ` `  ,hh]pp&  XxxDA 96925  X4 } Before the pp&  Xxx V FEDERAL COMMUNICATIONS COMMISSION KWashington, D.C. 20554  X4 In the Matter of  ,hh]) ` `  ,hh])  X_4Request for Interpretation or Waiver )  XH4of Section 95.861(c), Concerning hh])  X14Notification of Potential Interference)  X 4from Interactive Video and Data Service )  X 4(IVDS) Systems ,hh])  X 4 ORDER ă  X ' Adopted: June 17, 1996;hh]Released: June 21, 1996 By the Chief, Wireless Telecommunications Bureau:  Xb' JZI. INTRODUCTION  X44 1. On October 10, 1995, ITV, Inc. (ITV), an Interactive Video and Data Service  X4(IVDS) licensee, filed a requestP X4ԍ Request of IVDS, Inc. for Waiver or Clarification of Section 95.861(c) of the Commission's Rules (filed Oct. 10, 1995) (ITV Request). ITV holds the A segment license for San Francisco, California (call sign KIVD0011). for clarification or waiver of Section 95.861(c) of the  X4Commission's Rules.DKP X4ԍ 47 C.F.R.  95.861(c). D 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  X4area of the potential for interference to Channel 13 TV reception.P Xn4ԍ Section 95.861(c) exempts IVDS licensees from this requirement if the licensee has  XW4obtained written consent from the Channel 13 licensee to dispense with the notification. Id. Section 95.861(c) also  X4requires IVDS licensees to offer to eliminate such interference if it occurs.3P X!4ԍ Id.3 ITV requests that it be permitted to satisfy this notification requirement by newspaper or broadcast advertising,  X|4rather than by mail. We placed ITV's request on public notice on January 31, 1996.|K P Xx%4ԍ Public Notice, "Comment Sought on Request for Interpretation or Waiver of Section 95.861(c), Concerning Notification of Potential Interference from IVDS Systems," DA 96102 (released Jan. 31, 1996). We"| 0*0*0*"  X4received eight comments and three reply comments in response to the Public Notice.E  Xy4ԍ The comments were timely filed by the following: Joint commenters America 52 East, Inc., America 52 West, Inc., American Interactive East, Inc., American Interactive West, Inc., OnScreen USA Interactive, Inc., Premier Interactive, Inc., and Remote Vision Interactive, Inc. (America 52 East); Americom Network, Inc. (Americom); Association for Maximum Service Television, Inc. (MSTV); joint commenters Euphemia Banas, Whitehall Wireless Corporation, TransPacific Interactive, Inc., New Wave Communications, Inc., Multimedia Computer Communication, Inc., Loli, Inc., Imaginative Communications, Inc., IVDS OnLine Partnership, Vision TV, Inc., MAR Partnership, KMC Interactive TV, Inc., Dunbar Television Corporation, A.B.R. Communications, Inc., Bay Interactive Ventures, Ltd., Robert Steele, and Southeast Equities, Inc. (Banas); Community Teleplay, Inc. (CTI); Cosmos Broadcasting Corporation (Cosmos); Pegasus IVDS, Inc. (Pegasus); and Radio Telecom and Technology, Inc. (RTT). Reply comments were timely filed by America 52 East, Banas, and ITV.E By this  X-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.  Xz- gII. BACKGROUND ă x2. 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  X -Channel 13 reception.  | < XK-ԍ See Report and Order, In re Amendment of Parts 0, 1, 2, and 95 of the Commission's  X6-Rules to Provide Interactive Video and Data Services, GEN Docket No. 912, 7 FCC Rcd 1630, 1636 (1992).  When the Commission initially proposed this requirement, it did not  X -specify any particular means of notifying households nor any timetable for such notification. < X-ԍ Notice of Proposed Rule Making, GEN Docket No. 912, 6 FCC Rcd 1368, 1370 (1991).  X -x3. In the Report and Order in GEN Docket No. 912 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"0*((" 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  X-the IVDS operator's own customers.T i+ X-ԍ Report and Order, 7 FCC Rcd at 1636.T  ` `  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  X-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  X6-out in Appendix A.M 6{i+ Xb-ԍ Id. at 1637 (emphasis added).M  ` `  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 shortterm (or "initial") timetable (or "schedule") centered around initiation of service, and rejecting a longrange 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.  Xi- III. THE ITV REQUEST AND COMMENTS ă x4. 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  X -required notification, and it has received no response.7  .< X#-ԍ ITV Request at 45; ITV Reply Comment at 6. Under Section 95.861(c), an IVDS licensee must comply with the notification requirement unless it obtains written consent from the TV Channel 13 station licensee to dispense with this notification. 47 C.F.R.  95.861(c).7 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" 0*((" 1.5 million households in the affected geographic area would be approximately $ 1.4 million. ITV bases this estimate on a cost of $0.880.98 per piece of mail, delivered to households  X-within the expected system coverage of its entire service area.W < XK-ԍ ITV Request at 45; ITV Reply Comment at 5. W ITV states that its longterm  X-business plan contemplates such coverage.A y< X-ԍ ITV Reply Comment at 5.A ITV also states that, by contrast, the cost of its  X-system's initial "buildout" is estimated to be only $50,000.;*< X -ԍ ITV Request at 4.; 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  X1-service in San Francisco."91< X-ԍ Id. at 5.9 ITV also notes that "roughly 60%" of households nationwide receive broadcast programming via cable television, and are thus immune to potential IVDS  X -interference.\ < XB-ԍ ITV Request at 5; ITV Reply Comment at 23.\ x5. 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  Xy-required to give local public notice of the filing of their broadcast applications.;y? < Xi-ԍ ITV Request at 6.; 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  X4-of newspapers that are published in the area.`4 < X-ԍ See 47 C.F.R.  73.3580(c)(1) and (d)(3).` ITV also requests that, if broadcast notification is required, we also require the Channel 13 broadcaster to provide the required advertising  X-time in a nondiscriminatory manner at its lowest unit cost.E < XZ"-ԍ ITV Reply Comment at 4 n.8.E "T0*(("Ԍ X-ԙx6. Six of the commenters support the ITV Request, while two oppose it.< Xy-ԍ The commenters supporting the ITV Request are America 52 East, Americom, Banas, CTI, Pegasus, and RTT. Cosmos and MSTV oppose the petition. 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  X-positive.4b< X-ԍ America 52 East Comments at 12; Banas Comments at 45; Pegasus Comments at 2; RTT Comments at 2. Banas agrees with ITV's cost estimate for mailing each piece, and RTT notes that each piece must cost at least $0.40. Banas Comments at 4 n.6; RTT Comments at 2 n.1.4 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  X-Channel 13, many mailed notices would be wasted.g< X -ԍ America 52 East Reply Comments at 2 & n.2; RTT Comments at 2.g CTI states that, with the general  Xv-proliferation of "junk mail," many mailed notices would be discarded unread.>v < X-ԍ CTI Comments at 12.> Finally, Pegasus states that mailed notices may be confusing to a household because the household  XH-may not understand why it has received such individualized attention.@H0 < X)-ԍ Pegasus Comments at 2.@ x7. 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  X -IVDS licensee receives word back of interference. < X9-ԍ America 52 East Reply Comments at 4; Banas Comments at 5; Banas Reply Comment at 4; CTI Comments at 2. 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,  Xb-and problems should thus ultimately be resolved in all instances.Nb{< X!-ԍ America 52 East Reply Comments at 4.N  X4-x8. Americom and Banas agree with ITV that Section 73.3580, supra, provides a good  X-model for IVDS notification procedures.Z,< X%-ԍ Americom Comments at 12; Banas Comments at 23.Z Alternatively, Pegasus suggests as a model the "0*((F"Ԍrecent cable television law permitting operators to notify subscribers of service or rate changes  X-by "any reasonable written means."< Xb-ԍ Pegasus Comments at 2 (citing Pub. L. No. 104104, 110 Stat. 56, 117 (1996)  XM-(codified at 47 U.S.C.  552 (c))). x9. 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  X-interference.Yf< X -ԍ Cosmos Comments at 4 & n.4; MSTV Comments at 3.Y 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  XH-reports of interference.=H< X-ԍ MSTV Comments at 4.= Cosmos and MSTV argue that, absent mailed notification, viewers are more likely to direct interference complaints to the Channel 13 licensee, thus unfairly  X -shifting the burden of initial response.U < X-ԍ Cosmos Comments at 45; MSTV Comments at 3.U Cosmos also argues that broadcast notification might leave viewers with the impression that it is appropriate to direct such complaints to the  X -Channel 13 licensee.C y< X-ԍ Cosmos Comments at 4 n.4.C  X -x10. 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  X-license.<!* < Xm-ԍ Id. at 23. < 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  Xd-sought reconsideration of the issue.:"d < X-ԍ Id. at 3. : Cosmos also argues that ITV overstates its potential mailing costs by including its entire service area in the estimate, rather than merely the initial  X6-buildout area.;#6 < Xw!-ԍ Id. at 34.; MSTV states that it commented in favor of individualized notification in a  X-comment it submitted in the proceeding that resulted in the Report and Order.=$C< X$-ԍ MSTV Comments at 3.= MSTV states, however, that the Commission did not intend "to impose on IVDS providers conditions" $0*((d"  X-so burdensome that offering IVDS would become infeasible."9%< Xy-ԍ Id. at 2.9 MSTV therefore suggests that Section 95.861(c) be interpreted to require mailed notification only to households in "an area  X-near and around (two to five miles [from]) . . . the installation of the base station for IVDS."9&{< X-ԍ Id. at 4.9 x11. 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  Xv-thus does not permit the interpretation suggested by MSTV.D'v.< XU -ԍ Banas Reply Comments at 2.D Banas also argues that MSTV and Cosmo's support for "highcost mailings" is an attempt to delay or defeat the initiation of  XH-IVDS service.9(H< X-ԍ Id. at 4.9  X - IV. DISCUSSION ă x12. 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  X -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  Xd-the notification.y)d< X-ԍ See Report and Order, 7 FCC Rcd at 1637; see also supra at para. 3.y The Commission's discussion at that point in the text recognized three elements to KCOP's proposal: a shortterm or "initial" schedule for notification, a longrange 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. x13. 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 timesensitive notifications are required, the Commission authorizes licensees to provide notification by newspaper or" E )0*(("  X-broadcast publication (e.g., to notify the public of the filing of broadcast applications) or by  X-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 nonmailed 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  X5-Report and Order in GEN Docket No. 912, the Commission specifically expressed concern about placing an undue burden on IVDS licensees with respect to the notification  X -requirement.X* < X -ԍ See Report and Order, 7 FCC Rcd at 1636.X As a result, we do not believe that the Commission intended to impose a  X -mailing notification requirement that would exceed the costs of the licensee's buildout.E+ {< X-ԍ See supra at para. 4.E Under such circumstances, we conclude that a requirement of notification by mail would present an undue burden on licensees. x14. 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 nondiscriminatory manner at its lowest unit cost, as that suggestion is better suited to a rulemaking proceeding.  X- 6V. ORDERING CLAUSE S ă x15. 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. "".+0*((!"Ԍ hZ x16. IT IS FURTHER ORDERED that ITV's request for waiver IS DISMISSED. x x17. IT IS FURTHER ORDERED that this action IS EFFECTIVE UPON RELEASE.  X- @FEDERAL COMMUNICATIONS COMMISSION x` `  hh@ x` `  hh@Michele C. Farquhar x` `  hh@Chief, Wireless Telecommunications Bureau