The
Potential Preclusionary Effect of
Not
Filing During Initial Window
By
Herman Hurst
Although
the FCC has indicated that it will open rolling windows for two-way authorizations on a regular basis
following the first filing window, as discussed below, these future filing windows are not a substitute for
the initial filing opportunity. A significant factor in determining whether a two-way application is grantable
depends upon the applicant’s ability to demonstrate that proposed two-way operations will not cause
interference to existing or prior proposed operations. Thus the ability of an applicant filing for two-way
authorization for a specific market in subsequent filing windows to demonstrate that its operations will not
cause interference to other licensees decreases significantly each time that a two-way application is filed
for that market, with corresponding reduction in the areas one can serve. This is likely to be a particular
problem in larger markets, where the greatest number of stations are located and the greatest number of
initial two-way applications are anticipated. Further, those whose applications are granted first in time will
have little incentive to negotiate any middle ground, as is likely to occur in a successful first window
filing process. As a result, the longer ITFS two-way applicants must wait to file until after the first window
has closed, the less likely their chances of ever being able to provide two-way operations throughout their
entire licensed service area.
Participation
in the initial filing window is especially vital for licensees that must rely on
"limited exception" status. This applies to all stations that now receive harmful
interference within their 35‑mile‑radius protected service areas ("PSAs"), as is the
case with many or most stations in those markets that have numerous licensed stations, particularly the
largest markets. The "limited exception" permits Station A to propose two-way service that would
cause interference to areas within Station B‘s PSA to the extent that those areas already suffer
interference.
Reliance on this exception will be of critical importance
to many stations. The value of this exception will decline dramatically to the
extent that the stations are unable to file in the first window, for the following
reason: The two-way applications of Station A and B, which now interfere with
each other, can be expected to involve mutual interference. If both are filed
in the initial filing window, those stations will have parity of status and
they will be in a position to work out their differences on a mutually beneficial
basis. If they do not file in the first filing window, the race will be to the
swift, thus, if Station A files eve a day later than Station B, Station A will
be required to provide full protection to Station B, and Station A’s service
area accordingly will be severely limited. Thus, if a licensee relying on the
limited exception cannot successfully participate in the initial two-way filing
window – and the Commission grants the two-way application of co channel or
adjacent channel stations – then that licensee effectively may be confined to
its present analog one‑way service contours for any subsequent two-way
applications. That means that the licensee and the public it serves will be
denied the full benefits of innovative new digital technologies and the most
efficient network designs. The FCC’s procedures for this initial two-way filing
window must permit all limited exception licensees who wish to do so to fully
participate. In light of these
basic engineering realities, an ITFS licensee, who wants to fully engage in
two-way systems, must participate in the initial filing window so as to ensure
the greatest possible participation in the first filing window. The ITFS community
has worked hard to secure the option to provide two-way services because of
the advantages that such flexibility will afford. These efforts will have been
wasted if software and other avoidable technical limitations prevent the vast
majority of ITFS licensees from gaining access to the advanced technologies
necessary to further their educational mission.
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