Rule2022-13249
Preservation of One Vacant Channel in the UHF Television Band for Use by White Spaces Devices and Wireless Microphones
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 24, 2022
Effective
May 11, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) adopts an Order on Reconsideration (Order), that denies the Petitions for Reconsideration filed by Sennheiser Electronic Corporation and Shure Incorporated and affirms its conclusions and reasoning to close the vacant channel proceeding. The Commission's Order denies petitioners' requests for reconsideration and reversal of the Commission's 2020 Report and Order, that declined to adopt proposals of a 2015 Notice of Proposed Rulemaking, and affirms closure of the vacant channel proceeding.
Full Text
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<title>Federal Register, Volume 87 Issue 121 (Friday, June 24, 2022)</title>
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[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Rules and Regulations]
[Pages 37754-37757]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13249]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[MB Docket No. 15-146, GN Docket No. 12-268; FCC 22-33; FR ID 91601]
Preservation of One Vacant Channel in the UHF Television Band for
Use by White Spaces Devices and Wireless Microphones
AGENCY: Federal Communications Commission.
ACTION: Denial of petitions for reconsideration.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) adopts an Order on Reconsideration (Order), that
denies the Petitions for Reconsideration filed by Sennheiser Electronic
Corporation and Shure Incorporated and affirms its conclusions and
reasoning to close the vacant channel proceeding. The Commission's
Order denies petitioners' requests for reconsideration and reversal
[[Page 37755]]
of the Commission's 2020 Report and Order, that declined to adopt
proposals of a 2015 Notice of Proposed Rulemaking, and affirms closure
of the vacant channel proceeding.
DATES: The petitions for reconsideration were denied effective May 11,
2022.
FOR FURTHER INFORMATION CONTACT: For further information, contact
Michael Scurato (202-418-2083; <a href="/cdn-cgi/l/email-protection#266b4f454e47434a08754553544752496640454508414950"><span class="__cf_email__" data-cfemail="1b567278737a7e773548786e697a6f745b7d7878357c746d">[email protected]</span></a>).
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
document, Order on Reconsideration, MB Docket No. 15-146, GN Docket No.
12-268; FCC 22-35, adopted and released on May 11, 2022. The full text
of this document can be accessed online via the Commission's Electronic
Comment Filing System (ECFS) at: <a href="https://apps.fcc.gov/ecfs">https://apps.fcc.gov/ecfs</a> and is
available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat
via ECFS and at <a href="https://www.fcc.gov/document/fcc-affirms-closure-vacant-channel-proceeding">https://www.fcc.gov/document/fcc-affirms-closure-vacant-channel-proceeding</a>. To request materials in accessible formats
for people with disabilities (braille, large print, electronic files,
audio format), send an email to <a href="/cdn-cgi/l/email-protection#0b6d68683e3b3f4b6d6868256c647d"><span class="__cf_email__" data-cfemail="aec8cdcd9b9e9aeec8cdcd80c9c1d8">[email protected]</span></a> or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(tty). The Commission will not send a Congressional Review Act (CRA)
submission to Congress or the Government Accountability Office pursuant
to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted
by the Commission.
Synopsis
In this Order on Reconsideration, the Commission denies the
Petitions for Reconsideration filed by Sennheiser Electronic
Corporation (Sennheiser) and Shure Incorporated (Shure) (collectively,
Petitioners) requesting reconsideration and reversal of a Commission
Report and Order, 86 FR 9297 (Feb. 12, 2021), 35 FCC Rcd 14272 (2020)
(Termination Order) that declined to adopt rules proposed in a 2015
Notice of Proposed Rulemaking, 80 FR 38158 (July 2, 2015), 30 FCC Rcd
6711 (2015) (2015 NPRM), to preserve a vacant channel in the television
(TV) bands for use by white space devices and wireless microphones and
terminated the proceeding.
As the Commission held in the Termination Order, it finds that
adoption of the rules proposed in the 2015 NPRM would not strike the
most reasonable balance that would best serve the public interest. The
Commission makes this determination in light of other actions taken by
the Commission since the 2015 NPRM that will support wireless
microphone users and the burdens that the proposal would impose on
broadcasters. The Commission also reaffirms the conclusions it reached
in the Termination Order that the steps the Commission has taken in
other proceedings since the 2015 NPRM provide a better alternative for
addressing the needs of wireless microphone providers than through
efforts to preserve a vacant channel in light of the burdens the vacant
channel proposal would impose on broadcasters. Because it agrees that
the totality of these circumstances support the findings in the
Termination Order, the Commission rejects the Petitioners' claim that
the its action was arbitrary and capricious.
The Commission recognizes the Petitioners' preference for UHF TV
band spectrum to the alternatives adopted to assist the wireless
microphone operations, but does not find sufficient grounds to
reconsider the Commission's conclusion not to pursue the 2015 NPRM. The
Commission notes that the Termination Order does not find that the
other proceedings to support spectrum access for wireless microphones
are a perfect substitute for the UHF TV band spectrum. The Commission
also notes that its decision not to pursue the 2015 NPRM did not lessen
the spectrum access that wireless microphones currently enjoy in the TV
band and indeed the Commission has continued to find ways, and
additional spectrum, to accommodate wireless microphones in the future
outside of the crowded TV bands. Furthermore, technical issues raised
by Petitioners and commenters related to the differences between
spectrum in the TV band and other bands have been considered in other
dockets, the Commission explains. Moreover, although not necessary to
support the Commission's decision to terminate this proceeding, the
Commission also notes that it continues to explore these issues in
pending proceedings.
In weighing those needs, the Commission further affirms that it
reasonably concluded that the 2015 vacant channel proposal would impose
undue burdens on the broadcast users of the TV band. The Commission
finds that it adequately weighed the needs of all spectrum users, and
supported its decision not to pursue the proposals in the 2015 NPRM for
several reasons, including changed circumstances since 2015 and the
alternate initiatives taken by the Commission since 2015.
The Commission also agrees with its prior decision that the
proposal would impose undue burdens on broadcasters ``both in congested
areas where a vacant channel may not be available in the television
band and in less congested areas where more spectrum is available such
that analysis is not warranted.'' As the National Association of
Broadcasters (NAB) and a number of individual broadcasters noted in
their 2015 comments, the Commission explains that adoption of the
proposed rules would serve to freeze full power stations in place and
hamstring their ability to expand or innovate to better serve their
viewers. And the proposal would require ``novel engineering studies''
that ``would be expensive and time-consuming, particularly for smaller
broadcasters'' where ``the cost of conducting such studies is likely to
be multiples of current engineering design costs.'' Significantly,
television stations would bear the administrative burden of studying
and proving the availability of channels for other users in order to
receive approval of an application that is otherwise grantable in the
public interest. The Commission concludes it properly decided ``not
[to] deviate from previous Commission decisions that use of the TV
bands by primary and secondary broadcast users have priority over
wireless microphones and white space devices.'' Further, although
Petitioners' opine that the adoption of the 2015 proposals would not
hinder the development of ATSC 3.0 (the TV transmission standard
developed by the Advanced Television Systems Committee) service by
broadcasters, including new and innovative uses of broadcast spectrum
that the ATSC 3.0 standard enables, the Commission explains that it
believes that it properly balanced concerns raised in the record that
the proposed rules would hamstring the ability of broadcasters to
innovate. Petitioners' support of a scheme that would forgo the
nationwide solution proposed by the Commission and sought by proponents
of the 2015 NPRM would not ameliorate cost and regulatory compliance
burdens for licensed broadcasters, the Commission concludes.
The Commission acknowledges Shure's assertion that the 2015 NPRM
was an integral part of a multi-proceeding effort to support wireless
microphones and that it was contemplated that the Incentive Auction
would result in changed circumstances. The Commission does not,
however, believe these factors mandate reconsideration. As described
herein, the Commission continues to balance and support various
spectrum users' needs in multiple proceedings balancing all the facts
and circumstances and
[[Page 37756]]
concludes that the actions taken in other proceedings to make spectrum
available for wireless microphones have achieved the balance sought in
the Incentive Auction Report and Order, 79 FR 48441 (Aug. 15, 2014), 29
FCC Rcd 6567 (2014), while also addressing the needs of licensed
broadcast stations displaced by the Incentive Auction. For the same
reason, the Commission does not believe that Sennheiser's insistence
that the Commission pursue the 2015 NPRM's proposals in addition to the
other proceedings supporting wireless microphones mandates
reconsideration.
While the focus of the 2015 NPRM was on a nationwide vacant channel
solution, Petitioners contend that a non-nationwide solution would also
benefit wireless microphones and thus the inability to achieve a
nationwide solution does not justify termination of the proceeding. The
Commission disagrees. A non-nationwide vacant channel solution would
necessarily provide fewer benefits than the proposal as originally
conceived without diminishing any of the burdens on broadcasters,
especially in rural areas without adequate multichannel video
programming distributor (MVPD) and broadband service alternatives, and
if anything would therefore further support the Commission's balance of
the needs of the various spectrum users.
The Commission also rejects Shure's unsupported argument that the
Commission erred by unanimously adopting the Termination Order during
the ``lame duck'' transition period after the national presidential
election, which resulted in a change of the party with control over
administrative agencies. Shure's argument is unavailing because it
lacks any legal support and, in any event, is now moot because the
Commission rejects the Petitions on the merits.
Market analyses provided by Shure and Sennheiser purporting to
indicate vacant channel availability in major designated market areas
(DMAs) does not support reconsideration, according to the Commission.
Neither submission alters the Commission's conclusion in the
Termination Order that TVStudy software reveals that there are numerous
major metropolitan areas in the United States that have no vacant, 6
MHz channels. In its petition, Shure describes an ``independent
preliminary analysis of channel availability'' that it conducted using
a tool that it developed to ``calculate[ ] vacant channel availability
after drawing information from the FCC TV database.'' Using the tool,
Shure compiled a list of channels it claims are vacant in the top 10
DMAs. But the ``preliminary analysis'' is flawed, the Commission finds.
For example, channels listed as available in multiple markets,
including the two listed for Houston, two for Dallas, two for Los
Angeles, and one for Chicago, do not qualify as vacant channels because
they are adjacent to land mobile. Others, including the remaining
channels listed for Dallas, Los Angeles, and Chicago also do not
qualify as vacant channels because they are identified in LPTV or Class
A construction permits or licenses. Similarly, Sennheiser's ex parte
purportedly ``update[d] the Commission on new developments'' to offer a
data analysis. On the basis of that analysis, it asserts that, with the
exception of Phoenix, Arizona, ``in almost every major DMA in the
United States, there is a vacant channel that could be designated for
wireless microphones.'' This analysis is also unconvincing, the
Commission concludes. First, by identifying Phoenix as a market that
lacks a vacant channel, the ex parte concedes that the Commission was
correct in its assertion in the Termination Order that a nationwide
vacant channel solution in the TV band as proposed in the 2015 NPRM is
no longer possible. Furthermore, the analysis described in the ex parte
is flawed for several reasons, and therefore it does not undermine the
assertion in the Termination Order that numerous major metropolitan
areas have no vacant 6 MHz channels. First, the analysis is inaccurate
in stating that certain channels are available. For example, the ex
parte assertion that channel 16 in Salt Lake City is available
overlooks a displacement construction permit issued for that channel.
Second, the analysis incorrectly assumes that the identification of an
available channel in a specific location demonstrates that the channel
could be preserved across an entire DMA. Again, the example of channel
16 in Salt Lake City is illustrative, as the Salt Lake City DMA
includes the entire state of Utah and portions of neighboring states.
Within that DMA a number of TV translators occupy channel 16, which
would disqualify the channel as vacant throughout the entire DMA.
Third, some of the channels that the ex parte identifies as available
in large markets, such as New York and Los Angeles, could not be deemed
vacant for the purposes of the 2015 NPRM proposals because those
channels have land mobile reservations on adjacent channels. Finally,
the ex parte analysis was performed using a third-party tool found on
an internet web page that utilizes standards that are not consistent
with Commission rules to protect TV operations from wireless
microphones, which in many cases will overstate channel availability as
compared to what was proposed in the 2015 NPRM and is not a reliable
method for evaluating the Vacant Channel proposal.
In summary, and consistent with the public interest analysis in the
Termination Order, while the Commission recognizes the important
benefits provided by wireless microphones in the TV bands, it finds
that other actions that the Commission has taken to support these users
subsequent to issuance of the 2015 NPRM provide a better alternative
for addressing their needs than through efforts to preserve a vacant
channel in light of the burdens the vacant channel proposal would
impose on broadcasters. The Commission agrees with the conclusion in
the Termination Order that it can no longer say that the 2015 NPRM's
proposals ``will not significantly burden broadcast applicants.'' In
light of changed circumstances, the Commission concludes that it should
not deviate from previous Commission decisions that use of the TV bands
by primary and secondary broadcast users have priority over wireless
microphones and white space devices. The Commission believes that
preserving robust over-the-air broadcast television service remains an
important spectrum allocation priority, especially to rural areas
without adequate MVPD and broadband service alternatives. The
Commission continues to recognize the promise of next generation ATSC
3.0 service by over-the-air television broadcasters to expand the
universe of potential uses of broadcast spectrum capacity for new and
innovative services in ways that will complement the nation's
burgeoning 5G networks and usher in a new wave of innovation and
opportunity. Having restructured the TV band, the Commission finds that
to now adopt a requirement that primary and/or secondary television
stations protect spectrum availability for wireless microphones in the
smaller, more densely packed television band, would not serve the
public interest. Therefore, the Commission finds that, on balance,
seeking to preserve a vacant channel at this time, considering all of
the actions that the Commission has taken since 2015 to promote
wireless microphones interests, are outweighed by the burdens of the
proposals on broadcasters.
The Commission therefore affirms the its decision in the
Termination Order to decline to adopt the proposals of the 2015 NPRM
and to terminate this docket, and disagrees with Petitioners
[[Page 37757]]
that the Commission's rejection of the 2015 NPRM warrants
reconsideration.
For the reasons stated above, the Commission denies the Petitions
filed by Sennheiser and Shure requesting reconsideration and reversal
of the Termination Order and declines to adopt rules proposed in the
2015 NPRM to preserve a vacant channel for use wireless microphones
use.
Accordingly, it is ordered that, pursuant to sections 1, 4(i),
4(j), 303(r), and 405 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i), 154(j), 303(r), 405 and Sec. 1.429 of the
Commission's rules, 47 CFR 1.429, the captioned Petitions for
Reconsideration are denied, for the reasons discussed herein.
It is further ordered that, should no petitions for reconsideration
or petitions for judicial review be timely filed, MB Docket No. 15-146
shall be terminated and the docket closed.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2022-13249 Filed 6-23-22; 8:45 am]
BILLING CODE 6712-01-P
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