Attachment comments

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COMMENT submitted by National Association of Broadcasters

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2001-08-21

This document pretains to SAT-STA-20010724-00064 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2001072400064_456850

REeceryep Before the Federal Communications Commission AUS 21 200 Washington, D.C. 20554 PMiiks camse Om In the Matter of ) ) 1B Docket No. 95—91 XM, Radio, Inc. and ) GEN Docket No. 90—357 Sirius Satellite Radio, Inc. ) Requests for Special Temporary Authority ) SAT—STA—200107 c To Operate Digital Audio Radio Service (DARS) ) SAT—STA—2001072 * Terrestrial Repeaters ) COMMENTS OF THE NATIONAL ASSOCIATION OF BROADCASTERS Henry L. Baumann David H. Layer Jack N. Goodman Director, Advanced Engineering Valerie Schulte NAB Science and Technology Ann W. Bobeck NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, NW Washington, DC 20036 August 21, 2001

TABLE OF CONTENTS Executive Summary... L Introduction Background and History. u. The Satellite Radio Industry Has Not Filed Critical Information Pertaining to the Number and Types ofTerrestrial Repeaters It Has and Intends to Deploy.. The Proposed Terrestrial—Based Radio Network Contravenes the Commission‘s Intent.. The Satellite Radio Industry Should Not Rely on Experimental Authorization and STAs to Deploy A Terrestrial—Based, Satellite—Supported Radio Network SDARS Terrestrial Repeaters Must Be Prohibited From Transmitting Locally Originated Programming... Conclusion .

EXECUTIVE SUMMARY The National Association of Broadcasters hereby files comments in response to XM Radio, Inc. (*XM") and Sirius Satellite Radio, Inc.‘s (‘Sitius") Requests for Special Temporary Authority ("STA") to operate terrestrial repeaters with their Satellte Digital Audio Radio Service (‘SDARS®) systems. The intent of both the SDARS applicants and the Commission is undisputed — terrestrial repeaters should be used only to reach areas where a satellite signal cannot reach. One ofthe main arguments that NAB has made against the use of terrestrial repeaters is that repeaters are simply a crutch for technology that is not up to the task of. providing the seamless, mobile coverage promised by ts proponents and desired by the Commission, especially in cities where numerous "urban canyons" exist. And as evidenced by the Requests, XM and Sirius‘ repeaters networks, by their sheer numbers and power levels, appear to be designed to blanket metropolitan areas, not fill—inisolated gaps in coverage. The Requests clearly demonstrate the two satellte radio licensces‘ plans to use STAs and experimental authorizations to deploy a terrestrial network of high—powered broadcast transmitters to serve most of the U.S. population, supplemented by direct reception oftheir satellite signals in less populated areas. In the absence ofservice rules for use ofterrestrial repeaters,it appears that XM and Sirius are relying on the FCC‘s granting them temporary authorization in order to commence commercial operation ofa largely terrestrial radio service. These Requests, however, do not demonstrate any need for such a large number of high— power terrestrial repeaters. Because XM and Sirius have a long and well—documented history of being less than forthcoming about the use ofterrestrial repeaters to support satelite—based

service, the Commission should, at a minimum, require that the satellite radio licensees justify their sudden and marked increased "need" for so many high—powered terrestrial repeaters. Further,the extensive repeater networks proposed by the SDARS license holders represent disturbing and serious potential threat to radio broadcasters service. Simply stated, the extensive terrestrialdigital radio networks have the potentialto operate totally divorced of the satellite transmission systems that they supposedly complement.. Allowing the use of terrestralrepeaters sets the stage for XM and Sirius to offer nothing more than a satellite—fed terrestral radio service, or worse, a completely independent terrestrial service, thereby totally circumventing the Commission‘s stated intentions of establishing a high—tech direct broadcast sutellite radio service for the U.S. listening public, that would serve different interests than the existing terrestril radio system. In addition to deploying a large and high—powered terrestrial repeater network, the SDARS licensees have proposed service rules which would allow local origination or insertion of locally—targeted programming. As originally proposed by the Commission, the rules governing SDARS use of terrestrial repeaters would require that the signals being transmitted by the repeater be received from the operating DARS satellites. On its face this current proposal appears to echo the SDARS pledge not to transmit locally—originated programming, but upon closer examination the SDARS proposed rule does notpreclude locally originated material and, as such, contravenes the Commission‘s tentative conclusion to prohibit the use of terrestral repeaters to transmit lcally originated programming. The Commission here should ensure that SDARS terrestrial repeaters, like those employed in the terrestril radio broadcast service, are used only to retransmit the complete signalfrom theprimary station, intendedfor the consumer satellite receivers, atthe time it is i

transmitted. For these satellite systems, this means that their terrestril repeaters must be limited to the retransmission of the complete satelite signals. NAB has always maintained that SDARS terrestrial repeaters must be explicily prohibited from transmitting any focally originated programming, lest SDARS become, to any extent, a terrestrial—fed network. The Commission should also set a reasonable cap as to the amount and type ofterrestrial repeaters the SDARS licensees can deploy.. And the Commission should license each repeater, or alternatively, require striet record keeping on each repeater installation. This is the only way the Commission can prevent this technology from being whatit was never intended to be, a terrestril digitalradio network. Finally, NAB is opposed to any experimental authorization, STA or service rules that grant SDARS licensees carte blanche authority to build a large number of high—power terrestrial repeaters. As the Commission stated over six years ago, "ifa large number ofgap filles is required, there comes a point at which the service becomes essentiallya terrestrial ather than a satellite service." Itis clear that time has come. XM and Sirius® Requests should be denied because deployment of a terrestril—based, satellte—supplemented radio service is contrary to the Commission‘s goal of creating a new satellite radio service and thus, would not serve the public interest. i

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20584 In the Matter of ) ) 1B Docket No. 95—91 XM, Radio, Inc. and ) GEN Docket No. 90—357 Sirius Satellite Radio, Inc. ) Requests for Special Temporary Authority ) sAT—STA—20010712—00063 To Operate Digital Audio Radio Service (DARS) ) SAT—STA—20010724—00064 Terrestrial Repeaters ) To: The Commission comments or THE NATIONAL ASSOCIATION OF BROADCASTERS L Introduction. The National Association of Broadcasters (*NAB")‘ submitsthese comments in the above—captioned proceeding. The two Satellite Digital Audio Radio Service ("SDARS®) license holders, XM Radio, Inc. ("XM") and Sirius Satellte Radio, Inc. ("Sirius"),recently filed applications for Special Temporary Authority ("STA") to operate terrestrial repeaters with their SDARS systems.* XM and Sirius request authority to deploy 778 and 151 terrestrial repeaters, respectively, each operating above 2 KW effective radiated power (‘EIRP")" ‘ NAB is a nor—profit, incorporated association of radio and television stations and broadcast networks which serves and represents the American broadcasting industry. * FCC Public Notice Report No. SAT—00077, July 31, 2001 * Letter from Lon C. Levin, Senior Vice President, XM to Magalie Roman Salas, Secretary, FCC, July 12, 2001 (requesting STA for 168 terrestrial repeaters operating at EIRP between greater than 10 kW and 40 kW and 610 terrestrial repeaters operating at EIRP between greater than 2 kW and 10 kW); Letter from Robert D. Briskman, Technical Executive, Sirius to Magalie Roman Salas, Secretary, FCC, July 24, 2001 (requesting STA for 151 repeaters at 104 sites operating at EIRP between greater than 2 kW and 40 kW) [hereinafter "Requests"}.

‘These Requests clearly demonstrate the two satelite radio licensees‘ plans to use STAs and experimental authorizations to deploy a terrestrial network of high—powered broadcast transmitters to serve most of the U.S. population, supplemented by direct reception of their satelltesignals in less populated areas. In the absence ofservice rules for use of terrestrial repeaters, it appears that XM and Sirius are relying on the FCC‘s granting them temporary authorization in order to commence commercial operation ofa largely terrestrial radio service. These Requests, however, do not demonstrate any need for such a large number ofhigh— power terrestrial repeaters. As detailed in Section IlL, XM and Sitius have a long and well— documented history of being less than forthcoming about the use ofterrestral repeaters to support satellte—based service. The Commission should, at a minimum, require that the satellite tadio licensees justify their sudden and marked increased "need."for so many high—powered terrestrial repeaters. NAB is opposed to any experimental authorization, STA or service rules that grant SDARS licensees carre blanche authority to build a large number ofhigh—power terrestrial repeaters. As the Commission stated over six years ago, "ifa large number of gap fillers is required, there comes a point at which the service becomes essentiallya terrestrial rather than a satelite service."" It is clear that time has come. XM and Sitius‘ Requests should be denied because deployment of a terrestral—based, satellte—supplemented radio service is contrary to the Commission‘s goal of creating a new sarellie radio service and thus, would not serve the public interest * Establishment ofRules and Policies for the Digital Audio Radio Satellte Service in the 2310— 2360 MHz Frequency Band, Notice ofProposed Rulemaking, 11 FCC Red 1 (1995) t § 56. (herinafter "NPRATY].

1t Background and History. In the NPRM, the Commission observed that applicants for satellte radio licenses had advocated service rules for the operation of "terrestrial repeaters, or ‘gap—filles‘, in urban canyons and other areas where it may be difficult to eceive DARS signals transmitted by a satellite." NPRM at 55. At that time, the Commission declined to propose rules for terrestril repeaters, citing the applicants‘ failure to provide detailed information and commenting that "(u}ntil such information is available and applicants demonstrate how these complementary terrestrial networks would be implemented in the overall satellte system design,[the PCC] cannot determine if terrestrial gap—fillers should be permitted and what rules should govem their use." 1d. The Commission did, however, determine that gap—fllers would be complementary to satellte service — thus, the Commission proposed to prohibit the use ofterrestrial repeaters "except in conjunction with an operating satellite DARS system." 14. at J 56. In comments filed with the FCC, the satellite industry again restated its intention to use terrestrialrepeaters to "gap—fill"only where there was signal obstruction." Two years later,the Commission issued a Report and Order authorizing SDARS service and requested further comments on the use of terrestrialrepeaters toretransmit information from the satellite signal in order to overcome "effects ofignal blockage and multipath interference."* In the instant Requests, both XM and Siius restate this as the purpose ofterrestrialrepeaters." * See, e,g.In Re Establishment ofRules and Policiesfor the Digital Audio Radio Satellte Service in the 2310—2360 MHz Frequency Band, IB Docket No. 95—91, GEN Docket No. 90—357, Reply Comments of American Mobile Radio Corporation (predecessor of XM, Oct. 13, 1995 at 21. * Establishment ofRules and Policies for the Digital Audio Radio Satellite Service in the 2310— 2360 MHz Frequency Band Report and Order, Memorandum Opinion and Order and Further

Thus, the intent ofboth the SDARS applicants and the Commission is undisputed — terrestrial repeaters should be used only to reach areas where a satellite signal cannot reach. The Commission has proposed limiting repeater use t this purpose only, lestthere be a "transformation of satellte DARS into an independent terrestrial DARS network." Purther Notice at $139. To date, the Commission has not adopted rules authorizing or governing the use of terrestril repeaters for SDARS service. In liew of service rules, the SDARS licensees began to build a national network ofrepeaters by way ofa series of experimental authorizations. Initially, the Commission granted several ofthese experimental authorizations without public notice or comment." But, beginning in January 2000, the Commission issued a public notice for XM and Sirius‘ requests for STAs to build terrestrial repeaters" In its earlier comments, NAB called upon the Commission to require that the satellte radio industry provide detailed information as to its plans for building terrestrial repeater networks."" To date, this call has gone unanswered. Absent from the record, stil is data providing the location, type and number of all terrestril repeaters currently operating nationwide. Notice ofProposed Rulemaking, 12 FCC Red 5754 (1997) at § 138 [hereinafter "Report and Order/Further Notice"). " XM Request at 4,Sitius Request t 3. * Experimental Radio Station Construction Permit and License, File No. 0013—EX—TC—2000, XM Radio, Inc., granted Aug. 25, 2000; Experimental Radio Station Construction Permit and License, File No. 0160—EX—ML—2000, XM Radio, Inc., granted Aug. 23, 2000. * Satellite Policy Branch Information, Public Notice, IB Docket No. 95—91 and GEN Docket No. 90—357 (isued Jan. 21, 2000). XM‘s STA request was granted on Aug. 1, 2000 (Experimental Special Temporary Authorization, File No. 0271—EX—8T—2000). ‘° See Comments of NAB, IB Docket No. 95—91 and GEN Docket No. 90—357 (Feb. 22, 2000).

11L TheSatellite Radio Industry Has Not Filed Critical Information Pertaining to the Number and Types of Terrestrial Repeaters It Has and Intends to Deploy. Recently, the Wireless Communications Service (WCS) and the SDARS licensees have held several meetings at the Commission to try to resolve terrestrial repeater interference issues. The WCS service and the SDARS service occupy adjacent frequencies in the S—band. Specifically, the WCS license holders argued against the on—going deployment of SDARS repeaters, based on concems that high—power repeaters will create severe interference.." As demonstrated in the recent WCS ex partefilings, the SDARS"need" for terrestrial repeaters has been a continuously moving target. At the January 11, 2001 joint industry meeting at the FCC, the SDARS licensees pledged to provide to WCS a list ofall high—power terrestrial repeaters they had constructed or were planning to construct.". At that time, XM estimated they would deploy no more than 150 high—power terrestrial repeaters."". Two weeks later,Sitius proposed service rules which would allow up to 225 high—power repeaters."*. Six weeks passed and Sirius again proposed rules — this time Sirius advocated that it be allowed to deploy at least "" See, eg., Letters from Williem M. Wiltshire, eral., Counsel for AT&T Wireless Services to Magalie Roman Salas, Secretary, FCC, Jan. 5, 2001, Feb. 6, 2001, Feb. 20, 2001, March 8, 2001, April 30, 2001 and Aug. 8, 2001. See also Letters from Karen B. Possner, VicePresident« Strategic Policy, Bell South to Magalie Roman Salas, Secretary, FCC, March 8, 2001 and May 18, 2001. "" Letter from William M. Wiltshire, Counsel for AT&T Wireless, t al. to Magalie Roman Salas, Secretary, FCC, Jan. 25, 2001. " 1d. This number correlates to the estimate provided by XM in its 1999 Supplemental Comments. Specifically, XM stated its "standard" repeater would have an EIRP of 2kW, ts (intermediate) repeater would operate with an EIRP of 5 kW, and is (high power) repeaters would number 150 ofwhich only 25 would be higher than 20 KW." Supplemental Comments of XM Radio, Inc. TB Docket No. 95—91, Appendix A at p. 4 (December 17, 1999). "* Leter from Carl R. Frank, Counsel for Sirius, to Magalie Roman Salas, Secretary, FCC, Jan. 25, 2001.

1150 repeaters with EIRP of up to 40 kW without any coordination with, and regardless of impact on, wireless operators."" Meanwhile, XM proposed a limit of 250 high—power repeaters which would be allowed to operate without any coordination."* But then just two months later, XM applied for STAs for 778 high—power terrestrial repeaters for 61 urban sites,a fivefold increase in just ix months..". This continuous "number—creep" llustrates XM‘s and Sirius‘ lack of eandor in these proceedings."" And despite these effortsby the wireless communities, XM and Sirius have failed to provide any detailed information concemning the deployment of terrestrial repeaters."" As AT&T states, it is "[aJpparent that they are sharing network information only coincident with public announcement of impending commercial launch.""" Even now, the Requests emphasize the satelite radio licensees‘ blatant refusal to provide the Commission, the wireless industry and the public detailed, technical information concerning "* Letter from Carl R. Frank, Counsel for Siius, to Magalie Roman Salas, Secretary, FCC, Feb. 20, 2001. n response to the wireless industry‘s objections to the proposed rules, Sirius simply stated that it "made absolutely clear in a Nov, 1997 thatits satellte DARS service would require 100—150 active terrestrial repeaters." Letter from Carl R. Frank, Council for Sirius Radio, Inc.to FCC, Feb. 27, 2001. !* Letter from Bruce D. Jacobs, Counsel for XM, to Magalie Roman Salas, Secretary, FCC, April 25, 2001. ‘" See XM Request at Exhibit A. ‘* In a dispute involving microwave—powered light bulbs, XM and Sirius also appear to have been less than forthcoming to another govenment ageney. According to the Wall Street Journal article, XM and Sirius simultancously told the FCC that lt unchecked the microwave emissions would "imperilthe promise of satellite radio" while they told the Securties and Exchange Commission that these "new devies may interfere with our service."" Schroeder, M. and Dreasen, Y. Politics & Policy, Energy Saving Light—Bulb Maker Battles with Satellite—Radio Firmsfor Bandwidth, (August 6, 2001) <hitp:linteractive.wsi.com>. ‘" See Letter from Douglas I. Brandon,Vice President, Extemal Affairs and Law, AT&T Wireless Services, eal. to Magalie Roman Salas, Secretary, FCC, July 27, 2001.

the exact location, count and technical operating parameters of their terrestrial networks. Specifically, XM and Sirius state that they have "not included...information for the low power repeaters (%e., EIRP of2 kW or less) it seeks to operate pursuant to this STA."" Thus, based on the Requests, XM and Sirius believe they are entitled t a potentiallyinfinite amount of repeaters, irrespective of their potentil interference characteristies.. Further,neither XM nor Sirius‘ Requests provide any guidance as to the satelite industry‘s future plans for errestrial repesters. This hide—and—seek approach to terrestral repeater deploymentdirectly contravenes the Commission‘s Rules. Holders of blanket experimental licenses are required to "notify [the Commission] ofthe specific details of each individual experiment, including location, number of base and mobile units, power, emission designator, and any orherpertinent rechnical information not specified by the blanket license.""".Indeed, the Commission‘s proposed rules state that "[{Jerrestrial gap—fillers may be implemented by a satellite DARS licensee only after obtaining prior Commission authorization" and they must establish compliance with intemational coordination, antenna structure, and environmental processing requirements.". And yet, nowhere in the record (prior to the filing of these STA Requests) is there any information detailing o even sumarizing such pertinent technical information. The Commission should require the applicants immediately to provide pertinent, specific technical information regarding their full plans for terrestril repeaters, including such ® Letter from William M. Witshire, er al., Counsel for AT&T Wireless to Thomas Sugrue, Chicf, Wireless Telecommunications Bureau, FCC, August 8, 2001. *‘ XM Request at 2, n. 4; Sirius Request at 2, .3. "" Amendment ofPart 5 of the Commission‘s Rules to Revise the Experimental Radio Service Regulations, 13 FCC Red 21391, 21394 (1998) (emphasis added). ® Further Notice at Appendix C.

parameters as EIRP, antenna gain and pattem, specific technical criteria used to establish the need for repeaters at any given location, repeater interference characteristics both with the satelltes and with other repeaters, required spacing between repeaters and other installation requirements, impact on receiver performance of co—incident illumination by both satellte and repeater signals, ere. IV.— The Proposed Terrestrial—Based Radio Network Contravenes The Commission‘s Intent. The Commission has already stated that the public benefits of satellte radio include the "introduction ofa new radio service to the public, a national distribution ofradio programming to all areas, including the underserved and unserved areas and population groups, the creation of jobs and thepromotion oftechnological development in the satellie and receiver industries, and the improvement of U.S. competitiveness in the intemational economy.". Report and Order at 1 7 (emphasis added); see also NPRM at 19 2, 5, 12. Satellie—sadio was contemplated and suthorized as a service that would provide service unique to that of local radio — one that could provide a national, satelite—based network of continuous radio service for long—distance commuters, for niche audiences, and for persons living in remote areas. Report and Order at 9 12—14.— But in building a terrestrial—based radio network to blanket urban areas XM and Sitius have not created a new or unique radio service. One ofthe main arguments that NAB has made against the use of terrestrial repeaters is that repeaters are simply a crutch fora technology thatis not up to the task of providing the seamless, mobile coverage promised by its proponents and desired by the Commission, especiallyin cities where numerous "urban canyons" exist."" As noted by AT&T Wircless Services, "(aJpparently the gaps to be filled in the satellite service now encompass entire

metropolitan areas.""" And as evidenced by the Requests, XM and Sirius‘ repeaters networks, by their sheer numbers and power levels, appear to be designed to blanket metropolitan areas, not fill—in isolated gaps in coverage."* Further, the extensive repeater networks proposed by the SDARS license holders represent a disturbing and serious potential threat to radio broadcasters‘ service. Simply stated, the extensive terrestrial digital radio networks proposed by XM And Sirius have the potential to operate totally divorced of the satellte transmission systems that they supposedly are intended to complement."" Allowing the use of terrestrial repeaters sets the stage for XM and Sirius to offer nothing more than a satellite—fed terrestrial radio service, or worse, a completely independent terrestrial service, thereby totally circumventing the Commission‘s stated intentions of establishing a high—tech direct broadcast satelliradio service forthe U.S.listening public,tat would serve different interests than the existing terrestrial radio system. We are concerned that, should the nationally—based, no—local—origination—allowed SDARS systems experience grave "* Comments of NAB, TB Docket No. 95—91 and GEN Docket No. 90—357 (Feb. 22, 2000)at 3. * Writen Ex—Parte Presentation from AT&T Wireless Service, Feb, 20 2001, at 4; see also Letter from Karen B. Possner, Vice President—Strategic Policy, Bell South to Magalie Roman Salas, Secretary, PCC, May 18, 2001 observing that, "[over time, it has become increasingly evident that XM and Siius do not intend to rely on satellite reception any where in urban markets,but rather intend to blanket those markets with terrestril signals from extremely high— power repeaters ... such that terestrial signals will be ubiquitous." "*For example, XM‘s Request calls for 66 repeaters above 2 kW and 34 repeaters greater than 12 kW in just the Boston Metropolitan Area. *‘ The most extreme example of this can be found in the terrestril repeater network architecture employed by Sirius, which is fed by a VSAT network operating in the Ku—band and is (in a technical sense) totally and completely disconnected from the SDARS satellte transmission system.

‘business difficulties (a circumstance not uncommon for untried satelite services),"these service providers‘ fallback position will be to petition the FCC to be allowed to operate a local service on a par with the existing base ofterrestrial AM and FM radio broadcasters."" The Commission should ensure that the satellte radio licensees‘ use of terrestrial repeaters does not contravene the stated purpose for the SDARS authorization , «. the benefit of a new and unique satellte—based radio service. V. The Satellite Radio Industry Should Not Rely on Experimental Authorizations And STAs to Deploy A Terrestrial—Based, Satellite—Supported Radio Network. The Commission has already noted instances in which its processes "have been abused by companies attempting to establish commercial businesses under the guise of experimental Hicenses.""" The Requests are clear and striking examples of such abuse, where the satellie radio industry is refusing to describe in full their ever—expanding terrestrial networks, networks built on experimental authorizations and STAs. And as the Commission‘s Rules expressly state: The applicant for a station in the Experimental Radio Services accepts the licensee with the express understanding: (a)that the authority to use the frequeney or frequencies assigned is granted upon an experimental basis only and does not confer any right to conduct an activity of a continuing nature; and (b) that said grant is subject to change or cancellation by the Commission at any time without hearing if in its discretion the need for such action arises. a7u.8.C.§ 583. "* See, e.g., Press Release of New Eastland Study, which reveals that $0% of Americans surveyed show litle interest in subscription satellte radio services, August 14, 2001, attached as Exhibit2. "* *Although opponents ofsatellite DARS have not shown that it will have a sudden and dramatie adverse impact on terrestrial broadcasting, [the Commission] cannot entirely rule out the possibility ofa major adverse impact. [The Commission] emphasize(s] tat [i] remain(s] committed to supporting a vibrant and vital terrestrial radio service for the public." NPRA at 133. ® Amendment ofPart 5 ofthe Commission‘s Rules to Revise the Experimental Radio Service Regulations, 11 FCC Red 20130, 20136 (1996). 10

Thus, it is clear that,in building—out a large terrestrial network, satellite radio licensees have contravened Commission‘s intent and the Commission has the authority to order the immediate shut down of terrestrial repeaters. Indeed, XM attempts to portray its atest Request as "eritical" o its suecessful launch ofsatellite radio service operation." Tt is relying on a large number of terrestrial repeaters, not satellite technology, t reach its subscription audience, particularly those in urban markets. Both XM and Sitius have staked their financial future on the expectation that the Commission would cither grant these Requests and/or transform the current experimental authorizations and STAs into permanent lienses. But the Commission must first determine that the ultimate use of terrestrial repeaters is legitimate before it authorizes any additional construction.. XM and Sitius‘ financial investment is an irrelevant factor; the Court of Appeals has stated that in cases where a company not been granted a permanent license, "the [lieensee] agreed and the Commission assents that no weight is to be given to the investment involved in the remporary operation ofthe advantages which inhere in satisfictory interim operation for 2 to 3 years." Community Broadcasting Co., v. FCC, 274 F. 2d 753, 759 (D.C. Cir. 1960) (emphasis added). Further, the Court of Appeals has held that ultimately a licensee applicant "stll bears the risk that it willingly accepted [in commencing operation with interim operating authority}, namely that it will not finally be awarded the license." Orion Communications Lid. v. FCC, 131 F3d 176, 181 (D.C. Cir. 1997).. Thus, the satellite radio licensees have no basis, or reasonable expectation that their experimental authorizations, STAs and financial investments in terrestrial repeaters are to be given any weight. *‘ XM Request a 1. 11

VI. SDARS Terrestrial Repeaters Must Be Probibited From Transmiting Locally Originated Programming. By now it is clear that the SDARS licensees are establishing a widespread terrestral network, in stark contrast to the satellite networks they proposed. For, in addition to deploying a large and high—powered terrestrial repeater network, the SDARS licensees have proposed service ules which would allow local origination orinsertion of locally—targeted programming. As originally proposed by the Commission, the rules governing SDARS use of errestrial repeaters would require that the signals being transmitted by the repeater be received from the operating DARS satellites."" In January 2000, Sirius proposed replacing this requirement with a requirement that repeaters simply retransmit the "same programming" as the DARS satellite."" One year later, XM and Sitius proposed that the rules being sought by both license holders be erafted so that "[tJerrestrial repeaters shall not be used to originate programming not also transmitted from authorized DARS satellites.""" On its face this current proposal appears to echo the SDARS pledge not to transmit locally—originated programming, a pledge which is restated in the just—filed STA Requests."" But, upon closer examination, the SDARS proposed rule does not prelude locally originated * Further Notice ut § 142. "" See Supplemental Comments of Sitius Satellte Radio, January 18, 2000, at Exhibit 3; see also Comments ofNAB, Feb. 22, 2000 at 3—4. *‘ See Proposed Rule §25.144 (€)(1), XM‘s Ex Parre Submission, IB Docket No. 95—91, April 25, 2001 and Proposed Rule §25.144 (€)(1), Sirius‘ Ex Parte Submission, TB Docket No. 95—91, April 23, 2001, Attached as Exhibit 1. * XM Request at2, Sirius Request at 3. 12

material and, as such, contravenes the Commission‘s tentative conclusion to prohibit the use of terrestril repeaters to transmit locally originated programming."" Specifically, the satellte radio licensees‘ proposed language is not a prohibition on locally originated material (as it should be). Instead, t is merely a confirmation that material transmitted from terrestril repeaters is also transmitted by the SDARS satellites. Because it is technically feasible for XM and Sirius to transmit programming coded in such a way that it would not be processed by the satellite signal portion of consumer receivers, but instead would be received and stored in memory residing within the terrestrial repeater,"" programming could ‘be targeted to specific repeaters and have local content. This potentiallylocally—originated material could then be transmitted to a consumer receiver. The following example illustrates this point: * Local advertisements could be sent overnight on the SDARS satellite for local storage on terrestralrepeaters. The capacity for effecting this transfer could be easily obtained simply by reducing the bit rate on some ofthe music audio channels during this time period when there are likely to be fewer listeners. * Throughout the following day,the locally stored ads could be sent out at specific times from the terrestrial repeaters to consumer receivers. + Receivers could be designed to favor the signal being received from the terrestrial repeaters over that being received by the satellites, again facilitated by the fact that SDARS receivers are actually two receivers in one, ensuring that the locally—originated materialreaches the listener. Thus, the downloaded material would adhere to the "letter" of the proposed rule since it would have (at some point earlier) been transmitted over the SDARS satellte (the only requirement °* Further Notice at 99 140—142. *‘ This capability stems from the fact that SDARS consumer receivers are in fact two receivers in one — a satellite receiver (which processes the single—carrier TDM transmission from the sutellite) and a terrestrial receiver (processing the multi—carrier OFDM terrestrally—transmitted signal) 13

stipulated),but in fact it would be locally originated from the terrestral repeater (similar to practice of an AM or FM station‘s insertion of a local advertisement over a nationally—syndicated tadio feed). The Commission has well—established rules regarding the use ofrepeaters and radio broadeast signals. 47 C.F.R. Part 74, Subpart L. These rules require that each radio broadcast repeater be used onlto retransmit an incoming radio broadcast signal without altering any characteristis of the incoming signal other than its amplitude and, in some cases, ts frequency. See 47 C.F.R. § 74.1201(s)and (D. Broadeast repeaters are not permitted to change the bandwidth of the incoming signal. Nor are they permitted to change the content ofthe incoming signal."" 1 The purpose ofthese and other Part 74 rule provisions is t ensure that broadcast repeaters are not used for any other purpose other than the retransmission of a complete signal from the primary station. The Commission here should ensure that SDARS terrestrial repeaters, like those employed in the terrestrial radio broadcast service, are used only to retransmit the complete signalfrom the primary station, intendedfor the consumer satellte receivers, atthe time it is transmitted. For these satellite systems, this means that their terrestril repeaters must be limited to the retransmission ofthe complete satellite signals. NAB has always maintained that SDARS * There are a few very limited exceptions to this rule. Specifically, 47 C.F.R. § 74.1231(1) and (8) permit broadcast terrestrial repeaters to transmit locally originated announcements concemning emergency waming of imminent danger and requests for, or acknowledgements of, fnancial support. Also, 47 C.F.R. § 74.1283(c) permits a broadcast terestrialrepeater to either frequency shif or amplitude modulate the incoming carrier signal in order to ransmitits call sign in International Morse Code atleast once an hour. If the incoming signal contains a supplemental subcarrier, such as those commonly used at 67 kHz and 92 kHz in the FM baseband to provide services like foreign language programming, then this subcarrier must also be retransmitted. Conversely, ifa subcarrier is not included in the incoming signal, one may not ‘be added at the repeater. 14

terrestrial repeaters must be explictly prohibited from transmiting any locally originated programming, lest SDARS become, to any extent, a terrestrial—fed network. Therefore, the Commission should carefully craft ts "no local origination rule" to specify that terestrial repeaters be used and are restrieted to re—transmitting only what is currently being broadcast by the SDARS satellite, and thatinput to these repeaters be restricted tothe SDARS satellte signal itself. No other input, backup or otherwise, should be allowed, in order to insure the complementary nature of the terrestrial component." NAB asks that the Commission adopt ts rules as now proposed in this regard and reaffirm its original intention in this rulemaking — the establishment ofa satellte—only radio service — using the only means now left forit to do so, namely, requiring that these terrestril repeaters befed from the same satellte signal which is used by the receivers themselves and expresslyprohibiting all other means of signal delivery to said repeaters. The Commission should also set a reasonable cap as to the amount and type ofterrestrial repeaters the SDARS Hicensees can deploy. Finally, the Commission should license each repeater,oaltematively, require strict record keeping on each repeater installation. This is the only way the Commission can prevent this technology from being what it was never intended to be, a terrestrial digital tadio network." " Therefore, if, in the future SDARS satellites were to fail, or, altematively the SDARS service ceases operation, the terrestril repeaters could not be transformed into a terrestrialradio service. * The Commission states, Further Notice, supra, at § 142, thatit "must determine how to ensure any use of terrestrial repeaters is complementary to the DARS service and is only for retransmission of signals received from the satellite." Given the highly problematic task ofthe Commission‘s physically verifying that every repeater is being fed only from an authorized satellite, the Commission‘s rules must explicitly require such operation, as the Commission here proposes. 15

VIL Conclusion. For the reasons stated above, NAB XM and Sirius‘ request for STA to operate terestrial repeaters be denied. Respectfully Submitted, NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, N.W. Washington, D.C. 20036 (202) 429—5430 David H. Layer emy Baumann Director, Advanced Engineering Jack N. Goodman NAB Science & Technology Valerie Schulte Ann W. Bobeck August 21, 2001 16

Exhibict (Excerpt from Part 25 rules changes proposed by XM and Sirius) §25.144 Licensing provisions for the 2.3 GHe satellie digital audio radio service k62k+ (€)(1) Licensing of satellte DARS terrestrial repeaters. Satellte DARS licensecs may construct and operate ground—based transmitters with a total EIRP of each transmitter not exceeding 40 kW in the frequency assignment ofthe licensee ("terrestrial repeaters"). Terrestril repeaters shall not be used to originate programming not also transmitted from authorized DARS satelltes. Any medium or high power repeater must be operated so that the amplitude ofthe repeater‘s main signal within the spectrum assigned to the licensee, measured anywhere between ground level and 30 above ground leve},shall not exceed 25 dBm per 1 MHz, using a calibrated field measurement set to 1 MHz intervals. skek+

Exhibit 2 August 14, 2001 For Immediate Release Contact: Mike Gould (877—886—3320) NEW EASTLAN STUDY REVEALS 80% OF AMERICANS HAVE LITTLE INTEREST IN SATELLITE RADIO, (Wenatchee, WA)—Sate radio‘s impact on commercial broadcasters may be minimal according to new research released today by the media research firm, Eastian Resources. The Eastlan study was conducted during the period of March 22—May 16, 2001. A sample of 4,851 Americans (12 years or older) were asked if they would be interested in purchasing a new satelite delivered radio service that offered dozens of commercialiree radio channels for a monthly fee of around $10.00. Men expressed slightly more interest than women in satelite radio as 21.5% of male sample and 19.1% of women indicated a propensity toward purchasing satelite radio. The actual market penetration of satelite radio may be much lower says Eastlan Vice President/Research Bert Hambleton. "A four—fold differential between propensity to purchase and actual likelinoodof tralis typical of new hi—tech products. Additionally, our study did not suggest any cost of entry. The cost of a new receiver may also negatively effect the penetration of satelite radio." Hambleton adds, "at the bottom line, at this point. our study would suggest satelite radio‘s market penetration potential to be around 5%." Eastlan expects to release additional data from this study in the next 30 days. Household incomeand specific demographic breakouts are currently being tabulated. Eastlan Resources is rivately held media—research fim headquartered in Wenatchee, Washington with offces in Issaquah, Washington (Seatte) and Sisters, Oregon (Portand). Eastlan provides rado audience measurement data t over 225 subscribing radio statins in more than 60 markets across the Unied States:


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Document Modified: 2005-09-28 14:33:06
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