July 30, 2010
The FCC has issued a Notice of Proposed Rulemaking ("NPRM") and Further Notice of Proposed Rulemaking ("FNPRM") to implement certain provisions of the Satellite Television Extension and Localism Act of 2010 (STELA) that define the circumstances under which a DBS subscriber is "unserved" by local digital network stations and thus eligible to receive distant network stations imported from other markets.
1 Comments and reply comments on the NPRM and FNPRM will be due 20 days and 30 days, respectively, after the NPRM and FNPRM are published in the Federal Register. Since STELA requires the Commission to adopt rules by November 24, 2010, we expect that the comment and reply comment deadlines will be announced shortly.
By virtue of the 1988 Satellite Home Viewer Act ("SHVA") and subsequent iterations of that legislation, DBS households at locations that cannot receive a local network-affiliated television station's signal with an off-air antenna at a specified level of signal strength are "unserved households" and thus are eligible to receive a distant station affiliated with the same network.
Under STELA, the standard for determining whether a DBS household is "unserved" by a local digital signal is the noise-limited contour set forth in Section 73.622(e)(1) of the Commission's rules.
Prior to the DTV transition (and, again, per a directive from Congress), the Commission used the Individual Location Longley-Rice model for predicting whether a DBS household was unable to receive a sufficiently strong off-air analog network signal (and thus qualified as "unserved"). The IRRL model is a computer program that predicts the strength of an over-the-air signal at an individual location after accounting for the effects of terrain and other morphological features that may have an impact on signal propagation. In compliance with the Satellite Home Viewer Improvement Act of 1999 ("SHVIA"), the Commission adopted a modified version of the IRRL model (the "SHVIA IRRL model") that, in addition to terrain, accounted for the effects of land use and land cover on analog signal propagation, and that
1 Implementation of Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA);
Amendments to Section 340 of the Communications Act, Notice of Proposed Rulemaking, MB Docket No. 10-148,
FCC 10-130 (rel. July 23, 2010) ("NPRM"). The FCC indicates that this NPRM is "one of a number of Commission
proceedings that are required to implement the STELA." Id. n.1.
allowed for ongoing refinement of the model as more information became available to the Commission. There was, however, no statutory directive that the Commission adopt a predictive model specifically for digital television signals.
Under STELA, the new regulatory regime is as follows:
-- Eligibility for receiving a distant digital network stations is based on either (1) a prediction of whether the signal of a local station affiliated with the network can be received off-air at a specific location or (2) an actual measurement of the local station's signal strength at that location.
-- "Local stations" are those in the same DMA as the DBS household at issue.
-- The definition of "unserved household" is no longer strictly tied to off-air
reception with a "conventional, stationary, outdoor rooftop receiving antenna." STELA only refers to reception with an "antenna," thus raising the possibility that indoor antennas might be included in the analysis.
-- In determining whether a DBS household is "unserved," the off-air availability of operating translator stations (analog or digital), low power television or "LPTV" stations (analog or digital) and multicast streams of digital network signals shall be considered.
-- By November 24, 2010, the Commission is required to adopt an IRRL-based
model for predicting the availability of local digital television signals (this is the focus of the NPRM).
-- By the same date, the Commission must complete its pending rulemaking in ET Docket No. 06-94 and, in that proceeding, "seek ways to minimize consumer burdens associated with on-location testing" (this is the focus of the FNPRM).
The Commission proposes to use a modified version of the SHVIA IRRL model (such version also referred to as the "digital TV IRRL model"). Consistent with STELA and the legislation that preceded it, the Commission also proposes to use the DTV noise-limited service contour values in Section 73.622(e)(1) as the standard for determining whether a DBS household is "unserved" (the Commission thus refers to its proposal as the "digital TV IRRL model").
The Commission further proposes to use the modified SHVIA IRRL model for predicting the availability of digital full power (including multicasting), digital translator and digital LPTV signals.
As to how it will specifically modify the SHVIA IRRL model to accommodate digital signals, the Commission does not propose to change those features of the model that describe propagation and background noise levels. The Commission also proposes to make no special adjustment in the model to specifically accommodate measurement of multiple streams of digital signals. At the same time, the Commission does propose to modify the SHVIA IRRL model with respect to the issues of antenna location (outdoor vs. indoor) and performance, time and location variability and land use and land cover.
The technical specifics of those modifications are described in greater detail in Appendix B of the NPRM; we recommend that interested parties consult Appendix B directly to identify any potential issues of interest. Among other things, for example, the Commission requests comment on how (if at all) indoor antennas should be incorporated into the digital IRRL model and, more generally, how it should address situations where the outdoor-based digital IRRL model predicts a DBS household to be "served" even though the household is unable to use an outdoor antenna and cannot receive the signal at issue with an indoor antenna.
Under the Commission's proposal, only the availability of network signals within a DBS household's DMA would be considered for purposes of determining whether that household is "unserved." As to predicting the availability of local analog LPTV, Class A and TV translator stations that retransmit in analog format the content of local digital network stations, the Commission proposes to continue using the existing SHVIA IRRL model under the procedures set forth in OET Bulletin No. 72.
The Commission also requests comment on procedures for continuous refinement of the digital TV IRRL model as new information becomes available. In particular, the Commission proposed a framework under which parties with new data, analysis or other information relating to improving the predictive model could submit requests to modify the model under the Commission's docket for the NPRM. The Commission's Office of Engineering and Technology (OET) would then issue a new rulemaking on the proposed modification. Alternatively, the Commission could initiate rulemaking action on its own motion.
Like the legislation that preceded it, STELA provides that if the IRRL model predicts that a satellite subscriber receives a local network station of sufficient field strength and thus is ineligible to receive a distant station affiliated with the same network, the subscriber may request an on-site signal strength test to determine conclusively whether the model is correct. In that regard, STELA directs the Commission to complete its rulemaking in ET Docket No. 06-94 on establishment of an on-site signal measurement procedure.
In the FNPRM, the Commission requests comment on three issues raised by STELA that have not yet been addressed in ET Docket No. 06-94:
-- Stations to be tested: Consistent with its proposal to limit the analysis of signal
availability to network stations in the same DMA as the DBS household in question, the Commission proposes limit on-site testing to "same DMA" stations.
-- Indoor Measurements: As noted above, the Commission has not yet committed to incorporating indoor antennas into its model for predicting whether a local digital
network signal is available at any given household. In fact, in a 2005 Report to congress, the Commission concluded that many factors make it impractical to develop a reliable model for predicting indoor television reception. The commission indicates in the FNPRM that those factors make it equally difficult to perform accurate on-site measurements of indoor television reception. Hence, the commission is proposing not to specify a procedure tor indoor measurement of DV signal strengths.