In the Matter of AMENDMENT OF PARTS 2, 21, 74 AND 91 OF THE COMMISSION'S RULES AND REGULATIONS RELATIVE TO THE LICENSING OF MICROWAVE RADIO STATIONS USED TO RELAY TELEVISION SIGNALS TO COMMUNITY ANTENNA TELEVISION SYSTEMS
Docket No. 15586
February 5, 1968 Adopted
[P71:701] Frequencies for microwave facilities for service to CATV systems.
New microwave facilities for service to CATV systems will not be authorized in the 4 and 6Gc/s bands either to miscellaneous common carriers or landline carriers. Applications will be accepted and granted only in the 10.7-11.7 Gc/s band. Existing licenses in the 4 and 6 Gc/s bands will be continued without modification until their expiration on February 1, 1971, and applications for renewal will be granted only on specified conditions. Microwave Service to CATV Systems, 12 RR 2d 1521 .
[P71:700, P71:709] Expiration of short-term licenses.
Short-term licenses granted non-complying renewal applicants pending resolution of Docket 15586 will expire either 60 days after February 15, 1968, or on such other subsequent date as may be ordered by the Commission. In the meantime, the licensees may exercise the election privilege accorded by § 21.709(b) or seek a regular renewal in the common carrier service if they can comply with § 21.709(a). Microwave Service to CATV Systems, 12 RR 2d 1521 .
[P54:602, P54:1003] Technical standards for CAR Service.
Ten 25 Mc/s channels are made available for CAR stations, starting at 12,700 Mc/s. Ten additional channels in the same band, offset by 12.5 Mc/s but 25 Mc/s in width, are also listed. The use of these channels will not be authorized until the ten regular channels are fully used and then only if it can be demonstrated that such use will not degrade the regular channels to an undesirable extent. The public interest does not call for an allocation of more than 250 Mc/s to the CAR service. The channels are available equally to TV broadcast auxiliary stations, and may be used by TV pickup stations, subject to certain conditions as to avoidance of interference. Microwave Service to CATV Systems, 12 RR 2d 1521 .
[P71:700, P71:709] Limitations on common carrier microwave service to CATV systems.
Petitions for reconsideration of amendments to § § 21.700 and 21.709 of the Rules in the First Report and Order in Docket 15586 (6 RR 2d 1549) are denied. Carriers who have difficulty in complying with § 21.709(b) should transfer to the CAR service. Waivers may be granted in cases of extraordinary hardship or public interest factors, or in cases where there is a common stockholder in a carrier and its customer. Microwave Service to CATV Systems, 12 RR 2d 1521 .
[P54:1035, P54:1037, P54:1073] Unattended or remote control operation.
The rules governing the CAR service give the licensee the option of having a qualified operator on duty at the transmitter location, or at a remote control point, or automatic operation; if the transmitter is operated unattended, the circuit must be monitored hourly at the receiving end to insure that it is functioning properly. These requirements are a part of the responsibility of the licensees and the CATV for reliability and quality in service provided to the public. However, § 74.1037 is amended to substitute an "on call" requirement similar to that in the common carrier rules. Microwave Service to CATV Systems, 12 RR 2d 1521 .
[P54:1037] Automatic shut-off.
Requirement for automatic shut-off of an unattended transmitter when it is not relaying programs is necessary and will not be modified. Microwave Service to CATV Systems, 12 RR 2d 1521 .
[P54:1030] Relay of standard and FM station programs by CAR station.
Provision of § 54.1030(a) that a CAR station may relay standard and FM broadcast station programs was intended to grant such authority only as incidental to the primary purpose of relaying television signals and the rule is amended to make this clear. Microwave Service to CATV Systems, 12 RR 2d 1521 .
[ P54:1030] Cooperative relay arrangements.
Proposal to permit CAR and television broadcast licensees to enter into cooperative arrangements for shared use of microwave systems and to interconnect their facilities will not be adopted in view of lack of interest. In any event, shared use of CAR stations by television broadcast translators will not be permitted. Microwave Service to CATV Systems, 12 RR 2d 1521 .
JUDGES: BY THE COMMISSION: COMMISSIONERS BARTLEY AND LOEVINGER DISSENTING AND ISSUING STATEMENTS; COMMISSIONERS LEE AND COX CONCURRING AND ISSUING STATEMENTS; COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.
SECOND REPORT AND ORDER
1. This proceeding was instituted on August 3, 1964 by a notice of proposed rulemaking (29 F.R. 11458) to amend certain sections of parts 2, 21, 74, and 91 of the Commission's rules and regulations concerning the licensing of microwave stations used to relay television broadcast signals to CATV systems. The rulemaking was subdivided into four parts, as follows:
Part I Proposed rules with respect to common carrier applications and showing of public need.
Part II Proposed frequency allocations for common carriers serving CATV systems.
Part III Proposed noncommon carrier frequency allocations for CATV use.
Part IV Technical standards.
By a First Report and Order and Further Notice of Proposed Rulemaking issued on October 18, 1965 (1 FCC 2d 897), the Commission spun-off parts I and III of the rulemaking for decision, deferred parts II and IV for later resolution, and gave notice of further proposed rulemaking to permit cooperative, nonprofit cost-sharing microwave relay arrangements between community antenna relay stations and television broadcast stations. The principal actions taken on parts I and III in the First Report were the adoption of a requirement for a showing of 50 percent unrelated customers in common carrier microwave applications and the establishment of the Community Antenna Relay (CAR) Service for noncommon carrier microwave service to CATV systems. The deferred portions of the rulemaking concern a proposal (pt. II) to require relatively short route common carriers serving CATV systems to use the highest of the three frequency bands (3700-4200 Mc/s, 5925-6425 Mc/s, and 10700-11700 Mc/s) allocated to the Domestic Public Point-to-Point Microwave Relay Service, and a proposal (pt. IV) to adopt technical standards for the CAR service which would increase the number of video channels that could be delivered within the allocated spectrum space. n1
n1 It was proposed to require either narrow band (12.5 Mc/s channel-width) operation or wide band (25 Mc/s channel-width) operation with 12.5 Mc/s spacing between assignable frequencies and overlap of sidebands. Under either alternative, the use of tilted reflecting screens mounted on elevated structures ("periscope" antennas) would be prohibited. It was also proposed to prohibit periscope antennas in the 6- and 11-Gc/s bands for common carrier stations used to relay television signals to CATV systems.
2. Comments and/or reply comments on parts II and IV of the rulemaking have been received from the persons listed in appendix A hereto. Petitions for reconsideration of the First Report have been filed by the persons listed in appendix B. Comments on the further notice of proposed rulemaking have been received from the persons listed in appendix C. These pleadings are discussed below in that order.
I. Parts II and IV of the Rulemaking
A. Part II -- Common Carrier Allocations
3. In part II of the rulemaking, the Commission proposed to amend part 21 of the rules so as to require relatively short route common carrier microwave systems serving CATVs to use frequencies in the highest of the three bands allocated to the Domestic Public Point-to-Point Microwave Radio Service. Under the present rules, this Service utilizes the bands 3700-4200 Mc/s, 5925-6425 Mc/s, and 10700-11700 Mc/s. Common carrier stations serving CATV systems are licensed primarily in the 5925- to 6425-Mc/s band. n2 Under the proposed amendment, CATV common carrier stations would be authorized only in the 10700- to 11700-Mc/s band or the 5925- to 6425-Mc/s band, depending on the total path lengths in air miles of the longest route of the system as follows:
n2 There is one CATV microwave system in the 3700- to 4200-Mc/s band and two in the 10700- to 11700-Mc/s band. While these three systems are operated by telephone companies, there are two proposals from nontelephone companies for CATV microwave systems to operate solely in the 10700- to 11700-Mc/s band. Applications are pending for 77 frequencies in the 10700- to 11700-Mc/s band, to be used in systems also using 6-Gc/s frequencies and thirteen 11-Gc/s frequencies have been licensed to such systems. Applications are pending for eight frequencies in the 3700- to 4200-Mc/s band by systems also using 6-Gc/s frequencies.
400 or less miles
Only 10700-11700 Mc/s.
Only 10700-11700 Mc/s unless good cause is shown why this band cannot be used.
600 or more miles
Either 5925-6425 Mc/s or 10700-11700 Mc/s, as the applicant chooses.
While the amendment would be effective upon adoption for new applications and modifications entailing replacement of microwave equipment, existing stations would be accorded a transition period to February 1, 1971.
4. The intent of this proposal was to alleviate the interference potential between CATV common carriers and the transcontinental microwave systems of the landline carriers in the 5925- to 6425-Mc/s band, as well as to relieve anticipated congestion in urban areas in this band. In the belief that relatively short route microwave systems can provide fully satisfactory service in higher frequencies, we proposed to gear CATV common carrier use of the 6- and 11-Gc/s bands to the length of the particular system in order to preserve the lower frequencies for those long haul CATV and landline systems which allegedly cannot now operate satisfactorily at 11 Gc/s. (Notice, pars. 14-17).
Comments of the Parties
5. Of those commenting on part II, only American Telephone and Telegraph Co. (A.T. & T.) and Micro-Relay, Inc. support the proposed amendment. n3 A.T. & T. states that the potential of interference from CATV microwaves on landline companies is already serious and growing in all areas, both urban and rural. In order to realize maximum future economies to the public, many of the Bell System's long-haul TD-2 routes in the 4-Gc/s band have been constructed with the intention of further development at the same station sites in the 6-Gc/s band. A large part of the initial cost of a microwave route consists of the development of station sites (which are affected by such factors as terrain, access roads, and distance to powerlines), buildings and antenna structures, and only a relatively small share of the cost is represented by radio equipment. Thus, the capacity of a system on the same route can later be increased at the relatively low cost of additional radio equipment. But where the 6-Gc/s systems cannot be installed on the 4-Gc/s TD-2 routes because of frequency conflicts, it is necessary to develop new routes with a resultant substantial increase in cost of providing facilities.
n3 Micro-Relay, Inc., a Westinghouse subsidiary operating in Georgia, recognizes that a problem of frequency congestion, particularly in large urban areas, may well justify the adoption of rules substantially as proposed. However, it urges the Commission to preserve a maximum degree of flexibility in dealing with microwave systems in areas where frequency congestion presents no real problem and unusual amounts of rainfall pose real obstacles to the utilization of higher frequencies. The notice herein (footnote 17) stated that the Commission would treat areas with exceptionally heavy rainfall density, such as the Gulf coast area, on a case-by-case basis.
6. A.T. & T. states that it has already found it necessary to redesign at least one backbone microwave relay route (the Dallas-Los Angeles route) at an additional cost of about $800,000. In order to avoid interference from a CATV microwave then operated by Antenna Vision Service Co., A.T. & T. had to select alternative locations for four stations at a cost of $200,000 each. These sites were difficult of access and removed from roads and powerlines, whereas the route as originally engineered was more direct and would have been along highways and powerlines. A.T. & T. also claims that it was unable to establish a new route between New York City and a junctional station (Deposit) in south-central New York because of the interference potential from microwave stations in the 6-Gc/s band serving CATV systems. Appended to the A.T. & T. comments is a list of several examples of existing Bell microwave systems that allegedly cannot be expanded by the addition of 6-Gc/s equipment because of potential interference from existing CATV microwave systems -- a situation which will become more serious if new CATV microwave stations are added to those already in the 6-Gc/s band. n4
n4 In reply to comments asserting that such situations could be avoided by coordination with CATV microwave applicants, A.T. & T. states that it is not always possible to coordinate to the degree that will avoid intolerable interference, especially when station locations are already fixed on existing routes.
7. In addition, A.T. & T. states that interference potential from CATV microwave systems has precluded the use of precautions normally taken for security and survivability in the construction of general common carrier microwave systems. Because of interference from CATV carrier Mesa Microwave Co., it was necessary for A.T. & T. to change the route of a microwave system between Oklahoma City and Amarillo and, in the rerouting, the customary 30 miles security separation between a coaxial cable and the radio system could not be maintained. In urban areas, the congestion problem consists primarily of terminating several routes coming into the area from various directions. A.T. & T. claims that this must be accomplished in such a manner that one system does not interfere with another and yet there is allowance for future utilization of the entire band of frequencies on each route.
8. Accordingly, A.T. & T. requests that the Commission revise its proposal to require all common carriers serving CATVs, including systems of any length, to use the 11-Gc/s band. A.T. & T. states:
The current state of the art makes this feasible. It is generally recognized that if heterodyne equipment will provide satisfactory transmission performance over routes exceeding 600 miles in length. Such equipment for operation at 11 Gc/s is now obtainable.
On the basis of its experience in the 6- and 11-Gc/s bands, A.T. & T. urges that system performance at 11 Gc/s is virtually as satisfactory as at 6 Gc/s, and claims further that 11-Gc/s equipment would cost no more than 6-Gc/s equipment if produced in equal volume. n5
n5 In response to comments that additional microwave hops would be required at 11 Gc/s to overcome propagation effects (mainly rain), A.T. & T. challenges as erroneous the view that system reliability is increased by adding more stations. Claiming that additional hops decrease reliability due to outages from equipment and power failures, it urges that the preferable course is to add some degree of emergency power to existing stations which will more than compensate for any additional outage due to rain attenuation. In this connection, A.T. & T. points out that the Bell System uses protection channels, standby primary power, and techniques for minimizing propagation effects, whereas CATV common carriers normally do not incorporate these features in their systems. Given the degree of reliability that could be expected from the normal CATV carrier method of operation, A.T. & T. asserts that the relatively small increase in outage resulting from a change in operation from 6 to 11 Gc/s would not constitute a deterrent to use of the 11-Gc/s frequencies.
9. Those commenting in opposition to the proposed rule amendment generally share the Commission's concern about present and potential congestion in the 4- and 6-Gc/s bands and its goal of efficient spectrum utilization. However, they claim that common carriers serving CATV systems do not contribute to the congestion problem in urban areas because their operations usually commence outside the circle of congestion and proceed through sparsely settled areas. With respect to any existing or potential problem in rural areas, it is urged that frequency and system coordination in all three common carrier bands would achieve greater flexibility and a more efficient use of spectrum space than a tight compartmentalization of use of the 6- and 11-Gc/s bands based on mileage criteria.
10. Various parties have submitted engineering studies and/or counterproposals which either recommend alternative solutions or purport to show the absence of any present or potential congestion problem. Electronic Industries Association (EIA) suggests that a system of primary and secondary eligibility in the common carrier bands be established, i.e., that common carriers serving CATV systems be given primary eligibility in the 11-Gc/s band and secondary eligibility in the 4- and 6-Gc/s bands, without regard to distance but subject to a requirement of not creating present or future interference to landline common carrier systems. The National Association of Microwave Common Carriers (NAMCC) has appended an engineering study by Microwave Services International, Inc. (MSI), which urges the Commission to establish system coordination guidelines and compatible frequency pattern plans and require all short-haul systems to conform to them. Thus, MSI claims, short-haul systems would be engineered so as not to disrupt the total (existing and reserve) channel needs and frequency patterns of existing long-haul systems, and new long-haul systems could be routed and coordinated in a uniform environment of frequency patterns. The comments of Video Service Co., Golden West Communications and Western TV Relay, Inc. support the NAMCC proposal for frequency pattern compatibility and system coordination, and also append an engineering study by George C. Davis. Davis proposes a frequency assignment table for CATV common carriers using the 11-Gc/s band (similar to that proposed in pt. IV for the CAR service, including 12.5 Mc/s separations) and the prescription of standards for the determination of interference. These parties also suggest that the 11-Gc/s band should be used within 15 miles of major urban areas, in Western areas which lack heavy rain fall, and to provide cross-band diversity for landline carriers.
11. The National Community Television Association, Inc. (NCTA) has submitted a lengthy engineering study by A. Earl Cullum, who concludes that existing or potential congestion in the common carrier bands is not a valid basis for the proposed allocation action. Cullum contends that there will be a geographic accommodation between landline and CATV common carrier systems because congestion is likely only in major urban areas and CATV systems will allegedly operate principally in rural areas where circuit density is always likely to bo too low for frequency conflict. In support of this contention Cullum sets forth a detailed analysis of the future frequency requirements of CATV microwave systems, both common carrier and private. He estimates that CATV will need a total of approximately 11,000 transmitters for microwave systems averaging 61 miles or two microwave hops in length and relaying an average of three television signals each. On the premises that future CATV frequency requirements would constitute only 3 percent of the nationwide capacity of the 4- and 6-Gc/s bands and that CATV microwave operations will be remote from urban centers, Cullum anticipates no problem warranting Commission action.
12. Cullum's estimate of CATV microwave needs is based on the following assumptions:
(a) Each CATV system will offer its subscribers only the following television signals: three full network affiliates (obtained from the nearest source), one full time major independent station, and one educational station.
(b) There will be no need for microwave to bring outside signals into major metropolitan areas with three full network stations, one independent station, and one educational station. Since docket No. 14229 provides for independent stations in most of the top 75 markets, there will be no need for microwave into these markets.
(c) CATV systems in communities located within the grade B contour of three full network affiliates and a full-time independent station will not use microwave.
(d) CATV systems in communities of less than 5,000 population will not have sufficient subscribers to justify microwave costs.
(e) CATV systems in communities over 5,000, which need microwave in order to provide three full network services, one independent and one educational station, will obtain the missing signals from the nearest source and the microwave link will run from the grade B contour of such stations to the CATV system. n6
(f) Each CATV system will use its own microwave systems to obtain network and educational signals, but will share facilities or use common carrier service in the case of independent signals. Otherwise microwave costs would be prohibitively expensive where the community is located a great distance from the nearest independent station.
(g) Presently, the largest single microwave requirement is for independent stations because of the limited number of such stations. However, if UHF succeeds and independent stations are established in most of the top 75 markets, there will be smaller microwave needs to bring in the closest independent station and the total estimated requirement for 11,000 transmitters will be reduced accordingly. n7
n6 Cullum does not count as "full network affiliates" stations affiliated with more than one network, or stations located in communities of less than 250,000 population. Stations broadcasting any network programming, or in a foreign language, or located in a community of less than 250,000 population are not counted as "independent stations."
n7 Of the estimated total CATV requirement for 11,000 transmitters, Cullum estimates that half would be used to carry independents over relatively long routes, many more than 800 miles in length, from the 16 cities where independent stations were located (in July 1965 when the Cullum report was filed).
13. In addition to claiming that no problem exists, Cullum disputes A.T. & T.'s claim that system performance at 11 Gc/s is virtually as satisfactory as at 6 Gc/s for CATV microwave and that equipment costs would be the same if produced in equal volume. Cullum states that while 10-hop systems at 6 and 11 Gc/s may exhibit the same overall reliability under assumed conditions, the 6-Gc/s system would cover at least 60 percent more miles than the 11-Gc/s system. n8 Moreover, even if 6- and 11-Gc/s equipment have equal cost, Cullum urges that 11-Gc/s operation requires more stations and hence more equipment. n9 And, finally, both Cullum and MSI claim that A.T. & T.'s examples of Bell System routing problems could have been worked out if A.T. & T. had made any effort to coordinate its plans and activities with the carriers involved. They suggest that rather than rerouting the A.T. & T. routes at great cost, the solution should be to require the CATV carrier to relocate its stations or change frequencies.
n8 Cullum also disputes A.T. & T.'s estimates of outages and its assumption that CATV carriers do not require as high reliability as landline carriers. Noting that most CATV microwave systems now have comparatively few hops. Cullum asserts that greater reliability will be required as distances increase and CATV customers demand better service.
n9 Cullum also notes that the need for heterodyne and standby RF equipment develops more quickly at 11 Gc/s as system length increases.
14. We are unable to accept Cullum's estimate of CATV microwave needs or his conclusion that no potential frequency conflict exists. The assumptions underlying Cullum's estimate do not comport with the trend of CATV operations in cases coming before the Commission. Our experience has been that many CATV systems presently propose to offer their subscribers 12 or more television signals, both in underserved areas and in communities where television broadcast service is available from at least three full network stations and an independent station. n10 The number of petitions for waiver of section 74.1107(a) demonstrates the widespread CATV interest in bringing distant signals, both network and independent, into the top 100 television markets and even into the vicinity of major urban centers (e.g., Cleveland, Philadelphia, San Diego). While many of these signals are obtainable off-the-air, in a significant number of instances microwave is proposed. The signals to be provided by microwave often include more than one independent station and the source is not necessarily the closest. At the present time a microwave system is under construction to bring four independent signals from Los Angeles into New Mexico.
n10 See, e.g., Akron Telerama, Inc., et al., 7 FCC 2d 809; Susquehana Broadcasting Co., et al., 7 FCC 2d 578; General Electric Cablevision Corp., 7 FCC 2d 592; CATV of Rockford, Inc., et al., 7 FCC 2d 218; Fetzer Cable Vision, et al., 6 FCC 2d 845; American Television Relay, Inc., et al., 6 FCC 2d 837.
Moreover, microwave grants have been made to bring three New York City independent stations to numerous communities in upstate New York, including several in the 31st television market (Syracuse). See, e.g., the microwave applications of American Television Relay (ATR), Western Microwave, Inc. and its subsidiaries, Trans American Microwave, Inc. and New York-Penn Microwave, Inc. for expansion of their systems.
15. It appears, therefore, that Cullum has greatly underestimated the number of signals offered to CATV subscribers, the quantity of signals obtained by microwave, and the sources of such signals. But, more important, the premise that CATV microwave needs will fall in rural areas remote from urban centers overlooks the present trend of CATV into larger communities and major television markets. While section 74.1107(a) of the rules precludes CATV systems from furnishing distant signals within the grade A contour of any station in one of the top 100 markets without an evidentiary hearing and Commission approval, the Commission has granted some waivers of this rule and has reached no determination as to whether other signals will be permitted at the conclusion of the hearing. Thus, we cannot ignore the potentiality of serious frequency conflicts in the vicinity of major urban areas where it is conceded that congestion is likely.
16. Nor are we persuaded that no problem is likely to exist in rural areas. The comments of A.T. & T. give several examples of long-haul 4-Gc/s routes that cannot be fully developed at existing station sites because of potential interference from CATV microwave operations in rural areas. If these and other segments of the long-haul routes must be relocated in order to expand to 6-Gc/s frequencies, the cost would be reflected in rates charged to the public for general common carrier services. It may be that this result could be avoided through frequency pattern and system coordination or through relocation of CATV microwave stations. But we note that the ATR applications, although subsequently amended to obviate frequency conflicts with the Bell System, nevertheless present a number of frequency conflicts with other CATV microwave systems. (See par. 14, supra.) In any event, the existence of potential frequency conflicts in rural areas requiring some kind of remedial action is not generally disputed in the comments.
17. Moreover, even where the CATV microwave need is to serve smaller communities in remote rural areas, the signals carried generally originate in major metropolitan areas and in obtaining such signals the CATV carrier may add to the congestion of access routes to the city. Although Cullum assumes that signals will be picked up at the fringe of the station's grade B contour, our files show examples of signals picked up in Salt Lake City, within 17 miles from Salt Lake City, 24 miles from Los Angeles, 34 miles from Chicago, and 39 miles from New York City. The trend is to pick up signals closer to the city of origination in order to improve color signal quality. In any given area there are usually certain sites which are more desirable for microwave stations due to terrain, access and availability of power. Most systems radiate in a spokelike fashion from these large metropolitan areas, utilizing such sites, and thereby block or complicate landline carrier access to the community from many directions. Congestion also occurs at the perimeters of metropolitan areas as a result of efforts by landline carriers to bypass large metropolitan centers with long-haul through traffic.
18. Apart from the apparent invalidity of other assumptions underlying Cullum's estimate of CATV microwave needs, Cullum appears to be in error in assuming that his estimated total of 11,000 CATV transmitters would constitute only 3 percent of the stations that could be established in the 4- and 6-Gc/s bands. Cullum states that 80 channels or a total of 300,000 possible stations could be derived from the 1000 Mc/s of spectrum space in the 4- and 6-Gc/s bands, with 12.5 Mc/s spacing between channels. But this theoretical possibility is at odds with present reality. The channel spacing in these bands is considerably broader than the 12.5 Mc/s used in Cullum's calculations, and CATV microwave systems (with only two exceptions) do not operate in the 4-Gc/s band. Only 24 channels are available in the 500 Mc/s in the 6-Gc/s band, with 20-Mc/s channel spacing (and even fewer with 30-Mc/s channel spacing). Moreover, in stating that 3,750 stations could be established on each channel, Cullum assumes that these stations would be distributed evenly throughout the United States. However, since the population centers served by CATV and landline carriers are not evenly spaced throughout the country, microwave routes tend to converge where the people are and the desirability of certain station sites in terms of terrain, ease of access and availability of power leads to further concentration of microwave routes. Thus, the potential number of stations effectively to be derived from each channel is far less than the number of stations theoretically possible if practicalities are ignored.
19. The foregoing has been directed toward the potentiality of frequency conflicts between CATV and landline common carrier operations in the 6-Gc/s band, and does not take account of satellite earth stations sharing this and the 4-gc/s band. As yet only a few earth stations have been established in the United States for the international commercial communications satellite system of Intelsat. However, various proposals have been made in docket No. 16495, In the Matter of Establishment of Domestic Non-Common Carrier Communications Satellite Facilities by Non-Governmental Entities, for a domestic satellite system or systems to operate, at least initially, with 6-Gc/s transmission up to the satellite and 4-Gc/s transmission down to the receiving earth stations. These proposals contemplate at least three transmit-receive earth stations and a large number of receive-only earth stations (possibly in the order of 70 or so). n11 Our studies concerning off-path scatter interference have tended to show a much greater potential of "common volume" interference between terrestrial microwave systems and satellite earth stations sharing frequencies in the 6-Gc/s band, than was anticipated.
n11 A domestic satellite proposal by A.T. & T. in docket 16495 contemplates use of frequencies in the 18-Gc/s region of the spectrum for a down link after 1972, in order to obtain an exclusive frequency allocation. But there appears to exist a problem of accommodating competing demands for scarce spectrum space even at 18 Gc/s, where Teleprompter Corp. has petitioned for rulemaking to establish on a nationwide basis a high capacity, local radio distribution service for CATV use in conjunction with CATV wire distribution facilities (RM 1104). And, of course, the proposed establishment of a domestic satellite system or systems and of a nationwide high-capacity, local distribution system also entails the possibility of a need for additional microwave terrestrial facilities to interconnect earth stations with the local distribution facilities of the telephone and telegraph companies, radio and television stations, and CATV users of such services.
20. We do not know now, of course, what will be the precise dimensions of any domestic satellite system or systems that may shortly be established or the potential impact of the availability of satellite facilities for television distribution on the need for long-distance microwave relay systems to bring television signals to CATV systems. Nor do we know the outcome and potential effect on CATV microwave needs of a judicial and/or legislative resolution of the pending questions of CATV copyright liability and program origination. See, United Artists Television, Inc. v. Fortnightly Corp. (case No. 256, C.A. 2, decided May 22, 1967), affirming 255 F. Supp. 177; H.R. 2512, passed by the House on April 11, 1967 and now pending before the Senate; S. 597, 90th Congress, 1st session. But it seems clear that these unresolved matters may have a substantial impact on CATV microwave needs and on the important public interest in efficient use of scarce spectrum space. In view of the continued rapid growth in the number of CATV systems and the nature of their actual and proposed operations, the number and length of CATV common carrier microwave proposals (see par. 14 above), their potential effect on economical expansion of the microwave systems of the landline companies and on the location of earth stations for satellite communications, we think it our clear responsibility to act now to preserve the opportunity for an efficient use of spectrum space in the frequency bands involved and to plan for the imminent future in this dynamic field. It is important here, as in other situations, to act effectively before further microwave operations become established or well-entrenched, in view of the difficulty or impracticability of later attempting to roll back the situation if serious adverse consequences to the public should develop. See, Second Report and Order in dockets 14895, 15233, and 15971, 2 FCC 2d 725, 782; Buckeye Cablevision, Inc. v. Federal Communications Commission, case No. 20,274 (C.A.D.C.), decided June 30, 1967.
21. The question of what remedial course would best serve the public interest is more difficult. As indicated above, our proposal to make use of the pertinent bands dependent upon system length received little support in the comments of interested persons and much opposition on grounds of asserted inflexibility and too rigid compartmentalization. However, a number of parties have proffered counterproposals which appear meritorious, at least in part. After careful consideration of all the suggestions which have been made and on the basis of our own judgment as to what would best serve the public interest at this juncture, we have decided upon the following measures:
(a) We believe it imperative that new microwave facilities for service to CATV systems not be authorized in the 4- and 6-Gc/s bands, either to miscellaneous common carriers or to landline carriers, in order to preserve the ability of the landline carriers to expand their facilities for general service to the public economically and to facilitate the establishment of domestic satellite facilities in these bands until such time as higher frequencies may be used for this purpose. Accordingly, commencing with the effective date of our order herein, applications for new common carrier microwave facilities to serve CATV systems (including such applications by existing systems in the 4-and 6-Gc/s bands) will be accepted and granted only in the 10.7-11.7-Gc/s band.
(b) In order to minimize any disruption to existing common carrier systems providing microwave service to CATV systems in the 4-and 6-Gc/s bands, existing licenses in these bands will be continued without modification until their expiration on February 1, 1971. Applications for renewal will be granted only upon the conditions set forth in the rules in the attached appendix D, i.e., upon condition that such use of the 4-and 6-Gc/s bands by microwave carriers serving CATV systems is on a secondary basis to use by general common carriers and licensees of satellite-terrestrial facilities; that such licensees may be required to shift frequencies or routes, if necessary, to accommodate economical expansion of the facilities of the landline carriers and the location of earth stations for satellite facilities; and that such licensees will be required to use frequencies in the 10.7-11.7-Gc/s band for microwave stations within 50 miles of the principal city of any of the top 25 standard metropolitan statistical areas as ranked by the U.S. Census Bureau.
(c) As suggested by some of the parties, we believe it desirable to establish frequency and system coordination guidelines to facilitate coordination between CATV and other carriers in the 4- and 6-Gc/s bands and to insure an efficient and compatible use of spectrum space by all licensees in the 10.7-11.7-Gc/s band. Accordingly, we will shortly institute a new proceeding which will afford interested persons an opportunity to comment on the Commission's rulemaking proposal in this area.
B. Part IV -- Technical Standards for CAR Service
22. In part IV of the rulemaking, the Commission proposed to divide the 250 Mc/s made available to CAR stations into 20 assignable frequencies, spaced at 12.5 Mc/s from adjacent assignments within the band. Alternative proposals were made with respect to bandwidth and channel arrangements. The first proposal was for narrow-band operation without overlap of principal sidebands. The second proposal would permit wide-band operation, as under 25-Mc/s spacing, but would provide for 12.5-Mc/s spacing between assignable frequencies and for overlap of sidebands. Specific proposals with respect to technical standards under these alternatives were made in paragraph 32 of the notice, which included a proposal to prohibit the use of tilted reflecting screens mounted on towers or other elevated structures (sometimes referred to as "periscope antennas"). In addition, to inviting comments on the foregoing rulemaking proposals, the notice requested information on the feasibility of ultimately employing in the CAR service "back-to-back" operation and the use of vestigial sideband amplitude modulation video transmission with accompanying FM sound (notice, pars. 34-35). n12
n12 Although the notice discussed the need for efficient usage of the radio spectrum in the common carrier bands and invited constructive suggestions (pars. 36-39), the only rulemaking proposals as to technical standards for common carrier operation were: (1) a proposal to prohibit the use of periscope antennas in the 6- and 11-Gc/s bands, and (2) a proposal to require licensees in the 11-Gc/s band to use equipment capable of maintaining the unmodulated carrier frequency within 0.02 percent of the assigned frequency (footnote 24 and 26 of the notice, sec. 21.122 of the rules proposed in app. B to the notice).
23. With respect to the principal issue concerning the proposed alternatives of narrow-band operation or wide-band operation with overlap of sidebands, the comments and studies in the record have not proved very helpful in assisting our determination. The Commission's Chief Engineer placed in the record for comment an engineering study, Report No. R-6408, on the second alternative of 25-Mc/s channels on 12.5-Mc/s centers. This proposal was supported by Electronic Industries Association (Eia/), though it opposed the first alternative of 12.5-Mc/s narrow-band operation. n13 Jerrold Electronics Corp., on the other hand, which also conducted equipment tests on the feasibility of the proposed CAR channel spacings, challenges the Chief Engineer's report and urges that it would be necessary to omit every other channel in order to use 12.5-Mc/s spacings. A.T. & T. and NAMCC devote their comments and studies almost entirely to the common carrier matters involved in part II supra. In addition to directing extensive comments toward the common carrier issues, Cullum treats in useful detail the proposed technical standards for the CAR service. Cullum is of the view that 12.5-Mc/s bandwidth is unsuitable for accomplishing a high quality and economical CATV relay over considerable distances, but suggests that the 12.5-Mc/s spacing "appears practical and desirable for assigning frequencies to different systems passing through the same geographical locality." However, Cullum further asserts that in a single system, a minimum spacing of 25 Mc/s should be maintained between channels received from the same direction at a terminal or relay point, and a spacing of at least 37.5 Mc/s should be maintained between any channel received at a terminal or relay point and any channel transmitted from that point.
n13 EIA also supported the proposed technical standards for an 0.02 percent frequency tolerance in the CAR service, 5-w maximum transmitter power, and 3 degree maximum beam width antennas. Cullum's position was the same on these questions.
24. All of the parties who commented on either the common carrier issues or the CAR technical standards opposed the proposed ban on periscope antennas. Cullum and Jerrold Electronics commented in addition that vestigial sideband is not technically feasible in the present state of the art, except perhaps for single-hop routes, and both asserted that "back-to-back" operation is impracticable except under unusually favorable conditions and would require sophisticated engineering. n14
n14 We note in this connection that Teleprompter Corp. in petitioning for rulemaking to establish a nationwide high capacity, local distribution radio service (RM-1104), proposes a single sideband, amplitude modulated operation in the 18-Gc/s region of the spectrum which would permit a 6-Mc/s television channel to be relayed for 1-3 microwave hops in 6 Mc/s of spectrum space. Teleprompter has also advised the Commission's staff that it believes that "back-to-back" operation would be feasible for a relatively few microwave hops.
25. In light of the foregoing, we have decided not to adopt a prohibition against periscope antennas at this time nor a general requirement for "back-to-back" use of channels at all installations. We do note, however, that "back-to-back" operation may be a necessary expedient in the future to permit several systems to make use of a common site. We note also the strong objections to the proposed technical standards calling for channel widths limited to 12.5 Mc/s. These objections are found persuasive because the number of hops and route distances contemplated by CATV operators are considerably greater than those originally contemplated for this service, and also because relay operators place heavy reliance upon standard techniques and readily available equipment for effecting economical piecemeal expansion of their facilities.
26. The technical standards adopted herein for channels in the 12,700-12,950-Mc/s band provide for ten 25-Mc/s channels, starting at 12,700 Mc/s. The number of TV programs that may be relayed over single and multi-hop systems will depend upon the manner in which the system is engineered. Such techniques as the use of a diamond pattern or otherwise dividing the route into two separated paths which converge at the destination make it possible to use the directional properties of receiving antennas to permit use of all 10 channels. Cross-polarization or rotating polarization may also be used to provide discrimination. Although the use of "periscope" antennas is not prohibited, such use may not permit back-to-back relay operation. Users desiring additional channel availability will have to forego the use of "periscope" antennas and resort to back-to-back operation. Otherwise, if the channels provided in this band are insufficient to satisfy the desires of users, they may turn to common carriers for additional channels.
27. We have also listed 10 channels in this same band that are offset by 12.5 Mc/s but are 25 Mc/s in width and thus overlap the first 10 channels. There is little experimental data to show the effects of such overlapping on the quality of the program material so transmitted. If this is serious, these channels by straddling two of the regular channels may make both unusable. Such a sacrifice of two channels for one obviously would be untenable. Television STL stations which share these channels on an equal basis are a part of the overall TV broadcasting system which is required to meet certain performance standards. Therefore, the use of the interleaved channels will not be authorized until the 10 regular channels are fully used and then only if it can be demonstrated that such use will not degrade the regular channels to the extent that users cannot meet the quality standards required of TV broadcast stations. In the event that the use of interleaved channels is authorized, it may be necessary to require a stricter frequency tolerance than the 0.02 percent adopted herein.
28. The Commission cannot find that the public interest would be served by allocating more than the 250 Mc/s provided herein to the Community Antenna Relay Service. Furthermore, these channels are available equally to TV broadcast auxiliary stations, i.e., STL and intercity relay stations, and may be used by TV pickup stations subject to the condition that no harmful interference is caused to the Community Antenna Relay Service or to TV intercity relay and SLT stations. Existing stations in both services will be protected from harmful interference that might be caused by newly authorized stations. Applicants for new stations are expected to choose locations and select channels that are not likely to cause harmful interference to any station authorized at the time such applications are filed and the Commission will undertake to avoid granting authorizations which would be likely to cause interference. If, in spite of such precautions interference does occur, it shall be the responsibility of the new stations to correct the interference of cease operation. The "exclusive" nature of such assignments does not carry with it the right to operate the stations when they are not performing a service. The number of program channels that will be available to each user will depend largely upon the engineering planning that goes into the system. In some cases this may result in higher costs than if an unlimited supply of channels were available. In any case, CAR users desiring more channels than can be obtained by the use of available CAR channels may obtain additional channels from a common carrier.
C. Common Carrier Renewal Applicants
29. In the First Report and Order in this proceeding, in part I the Commission amended sections 21.700 and 21.709 of the rules to require a showing in common carrier applications for stations to be used to relay television signals to CATV systems that "at least 50 percent of the customers (on the microwave system involved), including customers of any interconnecting (carriers), receiving applicant's service are unrelated and unaffiliated with the applicant, and that the proposed usage by such customers, in terms of hours of use and channels delivered, constitutes at least 50 percent of the usage of applicant's microwave systems." Applications which do not contain the required showing are returned as unacceptable for filing. However, under section 21.709(b) of the rules adopted in the First Report, non-complying renewal applicants may be granted a waiver to continue to use common carrier frequencies under the technical standards applicable to such frequencies until February 1, 1971 if they elect to transfer to the CAR service. Since such election need not be made until 60 days after the issuance of a report and order resolving parts II and IV of the proceeding, non-complying renewal applicants have been granted so-called "short-term" renewal for a term ending with the expiration of this election period or on February 1, 1971 -- the general expiration date of the current license term of this class of stations under section 21.32 of the rules -- whichever is earlier. n15
n15 Under sec. 307(d) of the Communications Act, the Commission may not grant any license for a longer term than 5 years.
30. Accordingly, since parts II and IV of the rulemaking have now been resolved, such short-term licenses will expire either 60 days from the release date of our order herein or on such other subsequent date as may be ordered by the Commission. n16 In the meantime, licensees holding such short-term licenses may exercise the election privilege accorded by section 21.709(b) or seek a regular renewal in the common carrier service pursuant to the provisions of section 21.709(a) if they can now comply with the requirements of that section. Provided application is made before expiration of short-term licenses, licensees who file either in the CAR service or for renewal in the common carrier service are authorized to continue their existing operations until 30 days after Commission action on such application.
n16 Some renewal applications which may be subject to short-term licenses are still pending before the Commission. When short-term licenses are granted after the date of this order, it is anticipated that they will expire 60 days after the date of grant.
II. Petitions for Reconsideration of the First Report and Order Resolving Parts I and III of the Rulemaking
31. Petitions for reconsideration of the First Report were filed by National Community Television Association, Inc. (NCTA) and National Association of Microwave Common Carriers (NAMCC), filing jointly; Jerrold Electronics Corp. (Jerrold) and Video Service Co. (Video Service) submitting substantially identical petitions; and 39 common carrier licensees signatory to a single petition. The NCTA-NAMCC petition, which was adopted by the 39 common carrier licensees, is principally directed toward the rule amendments in part I involving sections 21.700 and 21.709 of the rules. n17 It is asserted that the First Report did not state good reasons for the rule amendments; that the standard of unrelated or unaffiliated is unreasonable in that it might cover situations where there is a common stockholder or where a carrier rents space on a customer's tower, and is invalid for vagueness; and that the return of non-complying applications without hearing is unlawful because a hearing is required on any waiver request. The Jerrold-Video Service petitions also claim that "totally unrelated" is too rigid a standard since it might cover publicly held companies with common stockholders even if the carrier had many customers or a debtor-creditor relationship where a carrier's related manufacturing company sells equipment to CATV systems. These petitioners assert that if the rule is necessary, the standard should be one of common ownership or control.
n17 These petitioners also request oral argument on the rule amendments. However, since petitioners' views appear to be adequately presented in their written pleadings and since we do not believe that oral argument would be of further assistance to the Commission, this request will be denied.
32. To the extent that petitioners claim that the rule amendment is invalid for failure to state sufficient reasons as well as for vagueness and that the return of non-complying applications without hearing is unlawful, we believe that their contentions are repetitive of arguments which were before the Commission at the time of the First Report and which were adequately treated in the First Report (pars. 9, 11-13). The standard encompassed in the rule has not proved difficult to administer. Whereas there were over 100 miscellaneous common carriers serving CATV systems several years ago, there are only approximately 74 at this time. This attrition has occurred primarily through the acquisition of smaller carriers by larger ones and the size of such major carriers has grown significantly. Three carriers -- American Television Relay, Inc.; TransAmerican Microwave, Inc.; and Western Microwave, Inc. -- largely dominate the CATV microwave service west of the Mississippi River. ATR serves or proposes to serve approximately 61 CATV systems (five of which are affiliated), Western approximately 84 systems (29 of which are affiliated), and Trans American approximately 13 systems (none of which are affiliated). The trend of proposed microwave service in cases pending before the Commission is clearly toward larger carriers whose operations continue to add new customers as signals are brought over longer distances encompassing several States, and microwave costs are reduced concomitantly. Whatever other public interest questions may be posed by such applications, there is clearly no problem of meeting the standards of sections 21.700 and 21.709 of the rules.
33. While some of the older and smaller carriers, whose operations commenced historically in order to serve a particular affiliated customer (see, notice herein, pars. 7-10) may have difficulty in complying with section 21.709(b) by the expiration of the election period, we think that such licensees should appropriately transfer to the CAR service if they wish to continue microwave operations of this nature. The rules of the CAR service have been drawn to facilitate such transfers (see, e.g., secs. 74.1030 and 74.1031 of the rules), and the waiver procedure is available for cases of extraordinary hardship or public interest factors. See, United States v. Storer Broadcasting Co., 351 U.S. 192, 205. Similarly, where the accident of a common stockholder in a publicly held corporation constitutes the sole relationship between a carrier and its customer or in other instances of a relationship which does not undercut the purpose of the rule, a request for waiver might be appropriate. See applications of American Television Relay, Inc. for renewal of stations KLU 24 and KLU 25 (File Nos. 5696/5697-C1-R-66); see also Interpretive Ruling re sections 21.700 and 21.709 of the Commission's rules, Common Carrier Bureau Public Notice of December 6, 1965. As stated in paragraph 20 of the First Report, it is our intention that there should be total separation between the carrier and at least one-half of its customers. We think that possible situations where application of the rule would be inequitable or anomalous should be brought before us on a petition for waiver which would permit us to examine all relevant circumstances in the particular case, rather than by attempting further to refine or narrow the rule.
34. With respect to part III, which established the CAR service and declined to accept new CATV applications in the Business Radio Service, NCTV-NAMCC urge that no justification has been shown for moving the largest user in the Business Radio Service; that, as shown by the Cullum report, uses will not conflict since other users are predominantly in urban areas whereas CATV microwave is located only in rural areas; and that a 250-Mc/s allocation is unjustified and premature to the extent that it may be based on technical standards still at issue in part IV. For the reasons stated in paragraphs 14-15 herein, we cannot accept the assumptions underlying the Cullum report. We think that the public interest and sound spectrum management would best be served by adhering to the resolution of part III in the First Report.
35. Some of the contentions with respect to specific provisions of the CAR service rules warrant discussion. The NCTA-NAMCC and the Jerrold Video Service petitions claim that the requirement in section 74.1035 for manned remote control positions is burdensome and is not required in the Common Carrier and Business Radio Services. Remote control is by definition the operation of a station by a qualified operator at a place other than the transmitter location. Therefore, you cannot have an unmanned "remote control" position. The petitioners are confusing "remote control" with "unattended" operation. This becomes apparent in their further protest that the requirement in section 74.1073 for a licensed operator to be on duty to monitor the system hourly is a heavy and needless expense to impose on CAR licensees, which is not imposed on any other important class of microwave users. The petitioners are confused in several respects. The rules governing the CAR service give the licensee the option of having a qualified operator on duty at the transmitter location, at a remote control point or automatic operation where the transmitter turns itself on-and-off and performs its functions without attention by a qualified operator. The present rules provide that if the transmitter is operated unattended, the circuit must be monitored hourly at the receiving end to insure that it is functioning properly. Contrary to the claims of the petitioners, section 21.205(1) of the common carrier rules has this to say about unattended operation:
Except under the circumstances specified in paragraphs (g) through (j) of this section, during the course of normal rendition of service, no person is required to be in attendance at a station installed at a specified fixed location when transmitting by self-actuating means provided (1) licensed radio personnel responsible for maintenance of the radio station are continuously available on call at a location which will assure expeditious performance of such technical servicing and maintenance as may be necessary, and (2) the quality of transmission over such station is subject to the supervision of the licensee's responsible operating personnel for the radio system with which the unattended station is directly associated.
The rules governing the Business Radio Service are somewhat more liberal in the matter of unattended operation but it is pointed out that stations in that service perform a private service wherein if the circuit fails or provides unsatisfactory service, the only direct loser is the licensee. Broadcast stations, CATVs and common carriers provide a service directly to the public and have a greater responsibility with respect to reliability ans quality in such service. Adequate supervision of stations by technically qualified persons is an important part of such responsibility. In the rules adopted herein, section 74.1037 regarding unattended operation has been modified to substitute an "on call" requirement similar to that in the present common carrier rules for the operator on duty at the receiving end of the circuit. Section 74.1073 is amended to reflect the change in 74.1037.
36. NCTA-NAMCC and Jerrold also claim that the requirement in section 74.1037 for automatic "shutoff" of an unattended transmitter when it is not relaying programs is not required in the common carrier or business radio service and that there is a legitimate maintenance reason for transmitting an unmodulated carrier 24 hours a day. It should be noted that section 91.151(d) which governs the industrial radio services including business radio, specifically forbids the transmission of an unmodulated carrier except when necessary for test purposes or when specifically authorized by the Commission. The industrial rules also use the term "transmission by self-actuating means" which has always meant the employment of an automatic "shutoff" device. Similar references to "self actuating means" appear in the common carrier rules with respect to unattended operation. The prohibition against radiation of an unmodulated carrier does not mean that the transmitter cannot be maintained in a "ready" condition. It may be switched to a nonradiating dummy load during periods when it is not rendering service and thus satisfy the "legitimate maintenance" reasons. As to the problem of receiver AFC circuits selecting the wrong carrier when the transmitter does come on-the-air, this may be overcome either by improving the frequency stability of the receiver or by incorporating a tone or pulse coding system that would release the AFC circuit and allow the receiver to "hunt" until it found the right carrier. The prohibition against unnecessary transmission is not only a requirement of international treaties and our own Communications Act, it is an essential part of good frequency management. The grant of an "exclusive" channel means only that the licensee having that exclusive authorization is protected from interference when the channel is needed. When it is not needed, it may be used by other licensees. At the present time it is not necessary to grant time-sharing authorizations on "exclusive" channels but with the burgeoning demands for spectrum space, that day may not be far off. The cost of such a device is an insignificant part of the salary of the operator that it replaces.
37. There is one respect in which clarification of the CAR rules appears appropriate. Section 74.1030(a) provides that: "Community antenna relay stations are authorized to relay television programs (visual and audio), and standard and FM broadcast station programs" * * *." The provision as to "standard and FM broadcast station programs" was added to the proposed rules at the request of parties who asserted that the CAR service should provide for the relay of such signals in addition to television signals. See First Report, paragraph 52, 1 FCC 2d 897, 914. It was not the intent of the Commission by this revision to imply that licensees in the CAR service would be granted channels solely for the relay of standard or FM standard broadcast signals. Rather we envisaged that a channel granted to a CAR station would be used primarily for the transmission of television programs and that the transmitter of the station could be multiplexed to provide additional communication channels for the transmission of aural program material obtained form AM and FM broadcast stations or for operational communications directly related to the technical operation of the relay system. Accordingly, section 74.1030 will be clarified to make specific the original intent that CAR stations are authorized primarily to relay television signals but may multiplex the same channels to relay AM and FM broadcast station programs and/or operational communications. n18
n18 Minor editorial changes will also be made in secs. 74.1079 and 74.1081(e) to change the reference to "aeronautical hazard markings" to read "aeronautical obstruction markings."
III. Further Notice of Proposed Rulemaking
38. Present rules governing the CAR service permit cooperative relay arrangements among CATV systems on a nonprofit, cost-sharing basis and permit interconnection of CAR stations with those of other CAR and common carrier licensees (sec. 74.1030). The further notice of proposed rulemaking concerned a proposal in paragraph 53 of the First Report that CAR and television broadcast licensees be permitted to enter into similar cooperative arrangements for shared use of microwave systems and to interconnect their facilities. The Commission's proposal elicited very little response. Only two comments were filed and each is directed principally toward urging the adoption of other rules. Southwest Texas Educational Television Council (Southwest), though supporting the proposed rule, requests that the rules of the Business Radio Service be amended to permit CATV licensees to furnish educational signals to educational television broadcast stations. Tri-State TV Translatory Association (Tri-State) urges that if broadcast stations and CATV systems are permitted to share microwave relay facilities, translator licensees should be afforded a like opportunity.
39. In view of the absence of any general expression of interest by broadcasters or CATV systems in the Commission's proposal to permit sharing and interconnection of relay facilities, we have decided not to adopt the proposed rules at this time. Should increased interest develop in the future, the matter can be brought before the Commission for renewed consideration upon a petition for rulemaking setting forth the need for such cooperative arrangements and the public interest to be served. In the circumstances the related tangential requests of Southwest and Tri-State will be denied. n19
n19 We would not, in any event, permit the shared use of CAR stations by television broadcast translators. It has been pointed out on a number of occasions by the Commission that a television translator operates by simple heterodyne conversion of a standard TV signal from one frequency to another. The signals transmitted over conventional microwave systems are not standard TV signals and cannot be converted or translated directly to a broadcast channel. The visual program material is transmitted by means of frequency modulation of the microwave carrier and the accompanying aural program is either multiplexed on the carrier or transmitted separately on a different transmitter. Standard TV signals transmit the visual program by amplitude modulation and the accompanying aural signals are carried on a frequency modulated carrier spaced 4.5 Mc/s from the visual carrier. The present rules permitting the use of translator relay stations require that the relayed signals have these technical characteristics. CAR stations do not transmit signals technically compatible with those standards. If conventional microwave signals are demodulated and the visual and aural material used to modulate a transmitter operating on a TV broadcast channel, this is not longer a translator operation. CATV systems do, in fact, demodulate the incoming microwave signals and use the visual and aural material to modulate a standard TV signal generator that simulates a broadcast station and it is these signals that are fed into the cable for home reception. Such signals may provide acceptable reception to TV receivers connected directly to the cable in which the signals are confined but would be entirely unsuitable for unconstrolled radiation through space on TV channels.
40. Authority for the rules adopted is contained in sections 4 (i) and (j), 303 (a), (b), (c) and (r), and 307(b) of the Communications Act of 1934, as amended.
41. Accordingly, It is ordered, That effective March 22, 1968, parts 2, 21 and 74 of Commission's rules and regulations are amended.
42. It is further ordered, That this proceeding Is terminated.
43. It is further ordered, That the various requests in the pleadings listed in the attached appendix B, to the extent that they may not have been granted herein, Are otherwise denied.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: LEE; COX; JOHNSON (IN PART)
CONCURRING STATEMENT OF COMMISSIONER ROBERT E. LEE
While I concur in the opinion, I believe that a few words are called for in view of Commissioner Johnson's separate opinion, concurring in part and dissenting in part. Commissioner Johnson's statement indicates that the majority is against program origination and is trying to place obstacles in the path of such origination.
The statement is in error. The notice makes clear that the entire Commission would favor CATV program origination which serves as an outlet for community expression. With respect to the other forms of origination by CATV, I believe it is fair to say that a majority of the Commission favors this, although there are unresolved policy questions as to whether or not commercials should be allowed, etc. I would think that the whole Commission would agree that this is an important policy matter which should be studied so that at least we may render the best possible advice to the Congress. n1
n1 As a matter of fact, I have publicly stated that I favor noncommercial program origination. At this juncture, it appears to me that the carrying of commercials would be an additional burden on the subscriber -- some thing like two tickets for one admission. I repeat that this is a matter which requires study based upon comments from the public.
It is important to bear in mind that no rule of the Commission prohibits any form of origination by a CATV system.
What is involved here? The first and foremost issue is whether CAR microwave service should be made available to aid program origination. The notice clearly indicates it should but there are two technical questions of some significance which should be answered. First, there is the question whether a showing should be required that cable is not able to do the job in a particular case. We have heard at great length of the necessity of conserving the spectrum. Here, where the CATV uses cable so extensively, should we not require a showing by the CATV that it cannot easily utilize its extensive existing cable system in the community -- which of necessity is attached to the head-end -- in connecting the downtown studio to the head-end, before we allocate radio spectrum for the purpose? I have reached no conclusion on this point. It is difficult to understand Commissioner Johnson's overlooking such an obvious issue, particularly at this time when we are being urged to recommend and find various solutions to the frequency shortage "crisis" both on a short-term and long-term basis. No party has commented on this point raised by our engineering staff. Should such a substantive rule be adopted without opportunity for comment?
The same point is applicable to providing facilities for remote pickup in this fixed service band. At the least, this matter should also be the subject of comment.
Should not the public be heard on the above and other issues? The purpose of section 4(b) of the Administrative Procedure Act is to afford such opportunity and that important statutory provision cannot be so strictly construed.
I stress in conclusion that it is wholly incorrect to assert that the Commission is trying to throw a roadblock into the path of promoting further diversity in this area. What we are doing is our job of letting the interested public have a chance to comment on significant issues before taking action.
Contrary to my distinguished colleague's allegations that we are protecting the broadcast industry, the Commission has in its Second Report (Docket No. 15586) carved out a frequency home for CATV channels in part from the TV broadcast auxiliary bands.
CONCURRING STATEMENT OF COMMISSIONER KENNETH A. COX
I fully concur in the adoption of this Report and Order. This specifically includes the decision not to provide therein for the authorization of CARS facilities to transmit programming originated by CATV systems, but rather to propose new rules to that end by notice issue concurrently herewith in docket 17999. My reasons for favoring that disposition of the matter, and my comments on this aspect of the dissents herein, are set forth in my concurring statement attached to that notice.
Program Origination by Cable Television Systems
[In the matter of Amendment of parts 2, 21, 74, and 91 of the Commission's rules * * *, and Notice of Proposed Rulemaking, amendment of part 74 * * *]
DISSENTBY: BARTLEY; LEE; JOHNSON (IN PART)
DISSENTING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY
In this document, the Commission (a) denies petitions for reconsideration of the First Report and Order on parts I and III of the rulemaking herein, and (b) issues a Second Report and Order on parts II and IV.
I would grant reconsideration of the First Report and Order for the reasons set forth in my dissent thereto. I repeat the point that, in my opinion, no frequency shortage in the 6,000-mc band has been shown, and transfer to more costly and less efficient relay service in the 12,000-mc band will logically result in CATV subscribers' paying higher prices, or receiving lower quality service.
I oppose adoption of the Second Report and Order on parts II (frequency allocation for common carriers serving CATV systems) and IV (technical standards for CARS). The Commission states that the intent of this proposal was to alleviate the interference potential between CATV common carriers and the transcontinental microwave systems of the landline carriers in the 5925-6425-mc/s band, and to reduce anticipated congestion in urban areas in this band. [Emphasis added.] I have asked repeatedly for some kind of showing to support the assertion of "potential" and "anticipated" problems, but such valid showing has not been forthcoming. As to the matter of "congestion" in urban areas, I maintain that the normal use of such CATV microwave service is the handling of traffic outgoing from metropolitan centers and is almost always in "open country." Allocation of Frequencies in the Bands Above 890 kc. 27 FCC 404 (Par. 5). Commenting parties urge that frequency and system coordination in all three common carrier bands, i.e. (3700-4200 mc/s, 5925-6425 mc/s, 10,700-11,700 mc/s) would achieve greater flexibility and a more efficient use of spectrum space than a tight compartmentalization of use on the other two, as was proposed. I agree. The required operation only in the 10,700-11,700-mc band (11 Gc/s) will necessitate the use of more microwave stations to cover the same distance, and, thus, result in additional equipment and higher costs. Moreover, the technical standards established by part IV are, I believe, unduly burdensome. These added costs of stations and equipment are, I believe, unjustified impediments to the advancement of CATV.
DISSENTING STATEMENT OF COMMISSIONER LEE LOEVINGER IN DOCKET NO. 15586 -- CATV MICROWAVE STATIONS
In the Second Report and Order in docket No. 15586 the Commission prohibits further licensing in the point-to-point microwave service of stations for transmitting signals to CATV systems and adopts final allocations and technical standards for licensing microwave transmission stations for CATVs in higher frequency bands. Commissioner Bartley dissents on the grounds that there has been no adequate evidentiary showing of the need to shift this service to economically more expensive and technically more difficult bands. I share Commissioner Bartley's doubts that the showing here is adequate to justify the action taken.
Nevertheless, I might acquiesce in the action on the basis of the technical conclusions reached by the Commission staff if that were all that was involved. However, under guise of making a purely technical shift in frequencies, the Commission has again erected a bureaucratic obstacle to technological development which is unwarranted.
The instant proceeding was instituted for the purpose of allocating microwave stations engaged in transmitting signals to CATV systems to appropriate parts of the spectrum. At the time the proceeding was started and up to the present time such stations could be licensed in the Business Radio Service and part of the Common Carrier Service. Until the present time there have been no limitations on the transmission of program material originated by CATV systems.
Although the subject is not explicitly discussed or considered in the Report and Order issued now, the effect of the action taken by the Commission is to prohibit the microwave transmission of CATV-originated program material. In recognition of this, the Commission is simultaneously instituting a new rulemaking proceeding to consider whether or not it should authorize the microwave transmission of CATV originated program material.
On any reading of the present record there is no basis whatever for doing any more than transferring CATV microwave transmitting stations from one frequency band to another. The issue of program origination should not have been decided by the technical sleight of hand of the staff draftsman who erected a prohibition against such transmission without mentioning the subject. It is a paradoxical and ironic commentary on this Commission action that within recent days a limited and short term experimental CATV operation proposed for the purpose of gathering empirical data, has been refused authorization by the Commission on the ground that such an experiment would be an unsettling factor and anticipated developments preclude any present change in the situation. It is also paradoxical and ironic that the Government is telling the U.S. Supreme Court, in two separate cases, that CATV should be providing locally originated service at the same time that it is taking technical facilities for such service away from CATV's.
The allocation of frequencies and the establishment of technical standards of transmission is a necessary and proper function of the FCC. In my opinion it is improper and unwise for the Commission to use its power to allocate frequencies and establish technical standards in order to control program content. That is the effect of the action it is now taking in this proceeding, and I dissent for that reason.
The Commission has today manipulated a technical-seeming rulemaking to screen from public view a warning which it wants flashed to the cable television industry. That warning reads, for those versed in the complexities of FCC regulation: "If you have any interest in developing CATV as a new source of television programming, forget it; the FCC intends to fight at every turn attempts to encroach on territory reserved exclusively for the broadcast industry."
This warning is not mentioned in the Commission's Report and Order at all. It is visible only in appendix D, which sets forth in full the Commission's regulations as they will read after incorporating the revisions adopted today. Section 74.1030(a) of those regulations will now read in pertinent part:
Community antenna relay stations are authorized to relay television programs (visual and aural) received from television broadcast stations and intended for use solely by one or more community antenna television systems (CATV).
This section formerly read:
Community antenna relay stations are authorized to relay television programs (visual and audio), and standard and FM broadcast station programs, from the point of reception of the broadcast to a point of reception by or in connection with community antenna television systems (CATV).
The point of the Commission's revision of section 74.1030(a) is to make it clear beyond cavil that licensees in the Community Antenna Relay Service (CARS) are not to transmit programs originated by CATV operators. If there was any doubt as to this aim from the rule itself, the Commission banished it by rejecting modifications suggested by the chief of the Commission's CATV task force when the rule change was adopted; the task force's proposal would have explicitly sanctioned carriage of original programming.
The significance of this language is itself not clear, unless one is acquainted with a collateral proceeding in which the Commission has recently proposed to close out the use of frequencies licensed in the Business Radio Service for short-hop transmissions sometimes required by CATV systems. All CATV microwave transmissions are to be conducted solely in the Community Antenna Relay Service. Hence they will be governed by the revised section 74.1030(a). (Docket No. 17824; Notice of Proposed Rulemaking issued Oct. 23, 1967 [FCC-67-1167].) And it will not be possible for a CATV operator to relay programs originated in a downtown studio out to the "head-end" of his system where they can be carried throughout the community over his cable.
Typically, of course, a cable operator picks up broadcasting signals off the air -- simply using a taller antenna than most homeowners -- and relays them to his homeowner-subscribers by cable. The antenna and its associated equipment is called the "head-end." He may also receive signals by microwave relay from far distant cities. (This is often the way local "broadcasters" receive their network television programming, then relaying it to their viewers, not by cable, but over the air.) Microwave relay may also be used for local transmission. Thus, a cable television company might wish to operate a downtown studio and relay its original programming to its head-end by microwave relay. And this is the use which today's action bars cable operators from undertaking. (It is worth noting that the Commission's action is not even very effective as an effort to prevent program origination by cable television companies. Those wishing to originate programming can still (1) originate programming from studios located at the headend, or (2) use downtown studios, but relay the program to the headend by cable rather than microwave. The Commission's position can therefore be characterized as little more than harassment: requiring cable companies to use studios inconveniently located to the public or undergo the often uneconomic alternative of relaying signals by cable rather than microwave.)
The only result of the new restrictions will be to abort a few efforts which might otherwise have been launched to establish modest studios conveniently located for local audiences and on-screen guests. It makes no sense to argue that we are preserving our freedom of action for the future by preventing investments from being made which it will there-after be impossible to uproot; there are simply not enough situations which could be covered by the rules -- so far as the Commission is aware, only one system is intent on setting up a downtown studio separate from its head-end. In fact, we are hampering our ability to plan, by depriving ourselves of the information which might be gained from the experiences of the CATV operators who might have ventured to use short hop microwave facilities for programming experiments.
But this negligible impact would appear to be precisely the Commission's point. In effect the majority is saying, given a chance to make things difficult for CATV operators interested in origination, this Commission will jump -- no matter how small that chance is. That is a message which cannot help but put sobering second thoughts in the minds of operators and equipment manufacturers considering whether or not to take serious the possibility of large scale program origination by CATV's.
Regretully, this unhappy consequence of today's decision seems to be a product of design, of what I have on another occasion described as "the most formidable obstacle" in the path of cable television -- "the FCC's sympathy for its traditional clients." CATV: Promise and Peril, Saturday Review, November 11, 1967, page 88. Such favoritism for the broadcasting industry by the Commission threatens to deprive the public of one of the most promising aspects of cable technology -- the possibility that its channel capacity might permit "the simultaneous carrying of a wide variety of programming aimed at a wide variety of audiences." Ibid. It is a matter of not insignificant concern that the Federal Communications Commission appears to be setting its face against this development at virtually the same moment that the Solicitor General has cautioned the Supreme Court against quenching the "potential" of cable systems to become "significant originators of programs and thus competitors of the existing networks, a development which may well be in the public interest." Brief for the United States as Amicus Curiae at 7 n. 4, Fortnightly Corp. v. United Artists Television, Inc., October term 1967, U.S. Supreme Court, No. 618.
The Commission endeavors to evade the charge of industry protectionism by issuing simultaneously with the new rules another notice of proposed rulemaking. The notice claims that the rules we have today adopted for the Community Antenna Relay Service are not intended to be "construed as a judgment on the merits of program origination by CATV systems." Our impediments to origination, the Commission says, are only temporary. Before we decide to go ahead and give our blessing to the quickening interest of CATV operators in origination, we should institute a rulemaking proceeding in which interested parties could submit their views on whether such origination ought to be permitted, and if so, what limitations should be imposed.
Except for the neophyte, this excuse will not wash. In the first place, "temporary" proceedings at the FCC often prove to be something other than temporary. Anyone acquainted with previous ostensibly temporary FCC restrictions on CATV must be skeptical of the Commission's professed intention to lift the present prohibition. In the second place, the prohibition is in no way a necessary concomitant of the rulemaking. The few ventures which might otherwise have proceeded would not have confined the Commission's ability to choose among alternative policies; they would only have informed our choice.
Since writing this opinion, my colleagues, Commissioners Lee and Cox, have written opinions disputing the contention that these amendments to our CARS rules and the associate rulemaking conceal a sub rosa aim to stifle CATV program origination. I hope that their professions of neutrality on the questions involved in this matter prove justified. However, at this point, I cannot avoid a measure of skepticism about the majority's design, a skepticism which these two concurring statements do not entirely allay.
Although both opinions seek to calm my suspicions (and those of Commissioner Loevinger), each argument seems to run at cross-purposes with the other. Commissioner Lee stresses that the Commission has "no rule" which in so many words bans origination by CATV's. Commissioner Cox, on the other hand, emphasizes that hostility to CATV program origination is an FCC tradition. ("The fact of the matter is," he says, "that the Commission has long been on record as recommending that Congress enact legislation to prohibit CATV systems from transmitting any material not received directly or indirectly over the air from broadcast stations, except as the Commission might authorize.")
My concern is also provoked by their ambivalence as to whether the issues to be resolved in the new rulemaking are merely "technical" (i.e., whether microwave is necessary for CATV short-hop transmissions, or whether cable would do almost as well), or whether the issues will concern fundamental FCC policy (i.e., whether CATV's should originate programs, and if so, whether the Commission can or should impose limitations -- for example, whether commercials should be permitted).
If the former interpretation is correct, and the rulemaking is to concern only "technical" questions, then I have trouble divining its point. I cannot understand how there could be technical objections to the relaying of original material over frequencies serving CATV systems, when we have just approved the relay of rebroadcast material over the same frequencies.
If, on the other hand, the rulemaking is intended to go to whether and how this Commission should regulate CATV origination efforts, then I would have to warn that we are backing into a most consequential determination with our hands over our eyes. Any serious look at the question of program origination by cable systems necessarily requires inquiries into projected trends in industry structure and technological development over the next decade or so as well as troublesome quandaries about the wisdom and legality of close governmental supervision of program content. Robinson, The FCC and the First Amendment, 52 Minn. L. Rev. 67, 78-97 (1967); Cf. Weaver v. Jordan, 64 Cal. 2d 235 (1966); Hannegan v. Esquire, Inc. 327 U.S. 146 (1946).
I believe that this Commission should devote to these weighty matters the serious attention -- and time -- which they deserve. I believe also that we should not force the very small number of CATV systems which desire to use short-hop microwave facilities to facilitate experiments with program origination to wait until our deliberations are finished. My fear is that, through confusion of the frivolous with the fundamental, the FCC has today succeeded in acting with delay where delay was not necessary and, at the same time, acting with haste where haste could be dangerous.
Persons filing comments and/or reply comments on parts II and IV of docket 15586:
American Telephone & Telegraph Co.
Community Television, Inc.
Electronics Industries Association.
Video Service Co.
Golden West Communications.
Jerrold Electronics Corporation.
National Committee for Utilities Radio.
Western TV Relay, Inc.
National Community Television Association, Inc.
National Association of Microwave Common Carriers.
Petitions for reconsideration:
Video Service Co.
National Community Television Association, Inc. and National Association of Miscellaneous Common Carriers.
Jerrold Electronics Corp.
Thirty-nine common carrier licensees (jointly by Smith & Pepper).
Statement of Association of Maximum Service Telecasters, Inc.
Micro-Relay, Inc. (Petition for Declaratory Ruling).
Persons filing comments on further notice of proposed rulemaking:
Tri-State TV Translator Association.
Southwest Texas Educational Television Council.