05.10.2006 12:00 AM
FCC Acts on SHVERA Digital Signal Testing Waiver Requests

As reported in a previous RF Report, the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) allows stations that met certain criteria to file for a waiver of the use of digital signal strength testing to determine if a satellite subscriber is eligible to receive a distant digital signal from another network station due to lack of an adequate DTV signal from the local network station. Under SHVERA, satellite subscribers may request a test starting April 30, 2006 if their local network station is within the top 100 markets and has received a tentative channel designation on its allotted digital channel or has lost interference protection or starting July 15, 2007 for any other full power local network station.


Waiver requests for the April 30, 2006 testing implementation date had to be filed no later than Nov. 30, 2005 and the FCC was required by SHVERA to act on these waiver requests by April 30, 2006. Waivers can be granted for up to six months and extended if the station can show its digital signal coverage is limited due to one of the statutory criteria. For a description of the criteria, see RF Report for November 22, 2005.


The FCC received 60 waiver requests, of which it granted 23, determined that another 23 requests "failed to demonstrate, by clear and convincing evidence, that their digital signal coverage is limited due to the unremediable presence of one of the statutory criteria noted above." Two other requests were untimely filed and the FCC returned waiver requests filed for 12 stations that were not subject to the April deadline.


EchoStar objected to waiver requests filed by seven stations (WTIC-DT, WUTV-DT, WTVH-DT, WSMH-DT, WBNX-DT, WNYO-DT and KVOA-DT) that were unable to receive international coordination. The FCC Order said EchoStar argued that these permittees and licensees "failed to present `clear and convincing evidence' that their inability to secure the necessary international coordination or approval is or has been `unremediable.'" The FCC rejected this argument, noting that the FCC International Bureau coordinates directly with Industry Canada and the Secretaria de Communicaciones y Transportes of Mexico (SCT) on behalf of broadcast applicants.


Delays in completing construction on Mt. Mansfield in Vermont as a result of delays in obtaining zoning approval from the State of Vermont provided sufficient basis for the FCC to grant three stations (WVNY-DT, WFFF-DT, and WPTZ-DT) a testing waiver. The stations expect to begin on-air testing in the fall. Zoning impediments in Hawaii provided the basis for waivers for KOGG-DT and KHNL-DT. Most readers are familiar with the problems broadcast members of the Lake Cedar Group in Denver have had in obtaining zoning approval for a new tower at Lookout Mountain. The FCC granted six-month digital testing waivers to Denver stations KUSA-DT, KCNC-DT, KPUN-DT and KTVD-DT. KOAA-DT received a waiver due to delays in obtaining local approval to construct a tower. KOAA-DT did not receive its initial DTV construction permit until late 2004.


Force Majuere, defined as "an unexpected and disruptive event which may operate to excuse a party from a contract" provided the basis for granting six-month digital testing waivers to WNBC-DT, which lost its DTV transmitter on the World Trade Center and is currently operating at the Empire State Building. The FCC said NBC stated although the Empire State Facility provides a quality digital signal to much of the area, it is less than the coverage NBC would have if it were able to operate within its authorized parameters. The 9/11/2001 terrorist attack "clearly constitutes force majeure and justifies grant of a six-month digital testing waiver for WNBC-DT." Stations WVLA-DT and WDSU-DT received waivers based on delays in reconstructing facilities destroyed by Hurricane Katrina. The impact of Hurricanes Charlie and Wilma on construction of WINK-DT, which did not did not have a construction permit until Oct. 29, 2004 justified a waiver for this station.


The commission rejected all 20 requests for waivers based on use of a side-mounted antenna, noting that none of the stations showed that use of a such an antenna is "necessary and unremediable." The FCC also said that none of the stations demonstrated through clear and convincing evidence that the use of a side-mounted antenna resulted in a substantial decrease in the station's DTV coverage area.


For a detailed explanation of the FCC's waiver request actions, see Order DA 06-801.



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