*Pages 1--10 from Microsoft Word - 33489* Federal Communications Commission DA 03- 3668 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Application of SCHOOL BOARD OF DADE COUNTY To modify Florida Station KTB- 84 To relocate Station KTB- 84 Transmitter site from Dade County to Broward County ) ) ) ) ) ) ) ) File No. BMPLIF- 950407DG MEMORANDUM OPINION AND ORDER Adopted: November 13, 2003 Released: November 19, 2003 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Memorandum Opinion and Order, we address the School Board of Dade County, Florida’s (School Board) minor change application 1 for Instructional Television Fixed Service (ITFS) Station KTB- 84, Miami, Florida. The School Board proposes to relocate the transmission facilities for Station KTB- 84 from Dade County (Miami) to Broward County (Ft. Lauderdale). 2 Additionally, we consider Wireless Broadcasting Systems of America, Inc. ’s (WBS) Petition to Deny the minor change application. 3 For the reasons discussed below, we deny the School Board’s waiver request and direct the Licensing and Technical Analysis Branch to dismiss its application. Moreover, we will grant WBS’ Petition. II. BACKGROUND A. Multi- channel Multipoint Distribution Service 2. In 1983, the Commission reallocated the F channel group frequencies (i. e., channels F- 1 through F- 4) from ITFS to the Multipoint Distribution Services (MDS) on a nationwide basis to create multi- channel MDS (MMDS). 4 The Commission determined that there were a substantial number of 1 Application File No. BMPLIF- 950407DG. 2 See Petition at 2. 3 WBS, Petition to Deny (July 7, 1995) (Petition). The School Board filed its opposition on April 19, 1996. School Board of Dade County, Florida, Opposition to Petition to Deny (Apr. 19, 1996). WBS filed a reply on May 24, 1996. WBS Reply to Opposition to Petition to Deny (May 24, 1996). 4 Amendment of Parts 2, 21, 74 and 94 of the Commission’s Rules and Regulations in regard to Frequency Allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed Microwave Service, Report and Order, 94 F. C. C. 2d 1203 ¶ 4 (1983) (MMDS Allocation R& O). The generic term MDS includes MMDS. 1 Federal Communications Commission DA 03- 3668 2 unused ITFS channels in many areas of the country, and it appeared likely that, while some growth in the ITFS service would occur, this growth was unlikely to exhaust the supply of channels. 5 The Commission emphasized that one of the goals in redesignating the channels was the efficient utilization of spectrum. 6 Consequently, the Commission concluded that two competitive MDS operators could offer multi- channel service while twenty channels would remain for existing and future ITFS use. 7 Accordingly, the Commission prohibited the acceptance of new ITFS applications for the E and F Group channels that applicants filed after May 26, 1983. 8 3. The Commission found that creating MMDS offers a number of public interest benefits including expanding consumer choice, creating lower cost equipment, and providing competition to other services which should lead both services to construct more quickly and provide better service at lower cost. 9 Additionally, the Commission determined that redesignating the F Group for MDS would be least disruptive of the existing and potential uses of the 2500- 2690 MHz band. 10 However, the Commission did not require ITFS licensees operating on the F Group channels to stop using the F Group channels. In fact, the Commission “grandfathered” existing ITFS stations operating on the F Group channels with their authorized facilities. 11 Thus, all existing ITFS licensees (as well as permittees and applicants that eventually become licensees) operating on the F Group channels would be grandfathered in perpetuity. 12 Thus, although these grandfathered entities would have the ability to renew their ITFS licenses, and make pro forma assignments of their licenses, 13 they would not have the ability to change transmitter location, antenna height, or transmission power. 14 In addition, MDS facilities would not have to protect ITFS receive stations operating on the F Group channels that were added after May 26, 1983 against interference. 15 Consequently, the Commission froze all facets of grandfathered ITFS operations as of May 26, 1983. 16 5 MMDS Allocation R& O, 94 F. C. C. 2d at 1206- 07 ¶ 4. 6 Amendment of Parts 2, 21, 74 and 94 of the Commission’s Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed Microwave Service, Report and Order, 98 F. C. C. 2d 129 ¶ 12 (1984) (MMDS Allocation MO& O on Recon). 7 MMDS Allocation R& O, 94 F. C. C. 2d at 1245 ¶ 105. 8 Id. ¶ 85. d; see also 47 C. F. R. § 74.902( c). 9 Id. 10 MMDS Allocation R& O, 94 F. C. C. 2d at 1247- 48 ¶ 110. 11 Id. at 1236 ¶ 85. c. 12 Id. at 1247- 48 ¶ 110. 13 Id. at 1236 ¶ 85. c. 14 MMDS Allocation MO& O on Recon, 98 F. C. C. 2d at 132- 33 ¶ 12. 15 Id. 16 Id. 2 Federal Communications Commission DA 03- 3668 3 B. Competitive Bidding 4. In 1992, the Commission prohibited the filing of all applications for MDS channels. 17 In 1994, the Commission determined that it would resolve any mutually exclusive applications for MDS by using competitive bidding. 18 The Commission deferred the promulgation of specific rules until after it removed the prohibition on the filing of new applications. 19 In June of 1995, the Commission adopted streamlined measures to distribute unused MDS spectrum for entire Basic Trading Area (BTA) service areas through competitive bidding. 20 The Commission required entities seeking to operate on MMDS channels to file a short- form application (FCC Form 175- M) during the short- form filing window. 21 No other applications for MMDS spectrum was authorized. On November 13, 1995, the Commission held the auction for MDS spectrum. 22 On March 29, 1996, the Commission completed its auction of authorizations to provide MDS. 23 WBS submitted the high bid for Market No. B469 (West Palm Beach-Boca Raton, Florida). 24 On August 16, 1996, the Commission granted WBS an MDS BTA authorization to operate on the F channel group in Market No. B469. 25 C. Grandfathered ITFS Station KTB- 84 5. The School Board is the licensee of ITFS Station KTB- 84, which has geographical coordinates of 25° 46’ 30” North Latitude; 80° 11’ 49” West Longitude. The School Board serves approximately 250 educational facilities throughout Dade County on Station KTB- 84’s grandfathered F channel group frequencies and other ITFS stations licensed to the School Board. Station KTB- 84 operates on all four of its authorized F Group frequencies, five days per week, averaging more than five hours of programming per weekday per channel. 26 17 Amendment of Parts 1, 2, and 21 of the Commission’s Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands, Notice of Proposed Rulemaking, 7 FCC Rcd 3266, 3270 ¶ 19 (1992). The Commission decided to accept applications to modify facilities from existing MDS licensees and conditional licensees as well as from entities eligible for ITFS. Id. 18 Implementation of Section 309( j) of the Communications Act - - Competitive Bidding, Second Report and Order, 9 FCC Rcd 2348, 2359 ¶ 62 (1994) 19 Id. 20 Amendment of Parts 21 and 74 of the Commission’s Rules With Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service, Report and Order, 10 FCC Rcd 9589, 9591 ¶¶ 1, 34 (1995). 21 Id. at 9648 ¶¶ 131- 132. 22 Qualified Bidders and Bidding Instructions for November 13, 1995 Auction, Report No. AUC- 95- 06, Public Notice, 60 Fed. Reg. 58348 (1995). 23 Winning Bidders in the Auction of Authorizations to Provide Multipoint Distribution Service in 493 Basic Trading Areas, Public Notice, Mar. 29, 1996. 24 Id. 25 FCC Announces Grant of MDS Authorizations, Public Notice, Aug. 16, 1996. 26 See Opposition at 2. 3 Federal Communications Commission DA 03- 3668 4 6. On April 7, 1995, the School Board filed a major change application to relocate the station’s transmission facilities from Dade County (Miami) to Broward County (Ft. Lauderdale). 27 The proposed transmitter site is in MDS BTA B293, Miami- Ft. Lauderdale. 28 In conjunction with the application, the School Board requested a waiver of the Commission’s Rules to permit it to modify its operations. 29 Specifically, the School Board proposed to modify its facilities to change the transmitter carrier frequencies from nominal (zero off- set) to negative 10 kHz off- set, increase the station’s transmitter power output, change the transmitting antenna, increase the transmitting antenna’s height, and change the location of the station’s transmitter site. 30 The School Board also sought a protected service area (PSA) for the station’s proposed new location. 31 7. On May 10, 1995, the Commission placed the application on public notice. 32 The public notice indicated that the School Board was seeking to modify the B Group channels instead of the F Group channels. On May 15, 1995, the School Board supplemented its lease agreement 33 in support of its PSA request for the station. The School Board amended its application 34 on October 20, 1995. However, the School Board withdrew this amendment on April 11, 1996. 35 D. Waiver Request 8. Generally, the Commission does not permit ITFS licensees who operate stations on the “grandfathered” F Group frequencies to change transmitter location, antenna height, or transmitter power. 36 However, the School Board avers that its proposed modification will serve the public interest by providing efficient utilization of ITFS and MDS spectrum in the greater Miami metropolitan area, as well as promoting the wireless cable system that National Wireless Holdings, Inc. (National Wireless) is developing. 37 Therefore, the School Board has requested a waiver of the Commission’s Rule in support of its application to modify its facilities and relocate the transmitter site as proposed. 38 27 File No. BMPLIF- 950407DG. Currently, the F Group channels are vacant. Petition at 2 28 See School Board’s application; Section V, p. 2. 29 Application, Exhibit IV- 4, FCC Form 330, Part IV, Question 4. 30 See Petition at 2; Opposition at 2. 31 See School Board’s Application, Section V, p. 9. 32 Public Notice, Report No. A- 35a, Appendix (May 10, 1995) (Application Public Notice). 33 See School Board’s application amended. 34 File No. BMPLIF- 951020R5 (See Report No. 23631A, released Nov. 9, 1995). 35 See Letter from the School Board to William F. Caton, Acting Secretary of the Federal Communications Commission, dated April 11, 1996. 36 MMDS Allocation MO& O on Recon, 98 F. C. C. 2d at 132- 33 ¶ 12. 37 See School Board’s application; Exhibit IV- 4, at 1. The School Board provides no further information regarding National Wireless’ system. 38 Opposition at 2. 4 Federal Communications Commission DA 03- 3668 5 9. The School Board seeks a waiver of Section 74.902( c) to further its educational mission by enhancing educational programming to the elementary, secondary, and college- credit educational institutions in south Florida. 39 To accomplish this mission, the School Board proposes substantial modifications to its authorized transmission facilities and relocation of its transmitter site to another county. The School Board argues that the relocation of Station KTB- 84’s transmitter site to geographical coordinates of 26° 05’ 09” North Latitude; 80° 14’ 08” West Longitude will permit it to provide programming into areas of Broward County that are beyond the reach of its existing transmission facilities in Dade County. 40 10. On July 7, 1995, WBS filed a petition to deny the application. WBS asserts that it is developing a wireless cable system in West Palm Beach, Florida. 41 Furthermore, WBS asserts that granting the School Board’s application and waiver request will prejudice WBS’ ability to apply for and acquire those channels. 42 On April 19, 1996, the School Board opposed the Petition by asserting that WBS did not have standing to object to the application. 43 III. DISCUSSION A. Procedural Matters 1. Notice 11. WBS alleges that in order to provide proper notice of the application, the Commission must consider whether to place the School Board’s application on a new cut- off list as an F Group filing. 44 WBS notes that the School Board’s application, BMPLIF- 950407DG, which appeared on Public Notice 45 stated that the application was for the B Group. WBS asserts that we must place the application on public notice with the F Group channels listed to correct this error. 46 12. The Communications Act of 1934, as amended (the Act), prohibits the granting of an application earlier than thirty days following issuance of public notice of the acceptance for filing of such application. 47 During this thirty- day period, interested parties may file a petition to deny the application. 48 WBS alleges the notice given for this application was deficient because the Application Public Notice 39 Id. 40 See School Board’s application; Exhibit IV- 4, p. 1 41 Petition at 3. 42 Id. 43 Opposition at 3. 44 Petition, n. 1. 45 See Petition at 1 (Report No. A- 35a, released on May 10, 1995). 46 Petition, n. 1. 47 47 C. F. R. § 309( b). 48 47 C. F. R. § 309( d)( 1). 5 Federal Communications Commission DA 03- 3668 6 incorrectly listed the B channel group instead of the F channel group as the channels the School Board sought to modify. The standard for determining adequate notice is whether the Application Public Notice was “reasonably comprehensible to people of good faith.” 49 That is, would a fair reading of the Application Public Notice have put the reader on notice that the Commission had accepted an application for filing for authority to provide service on the F block MMDS channels in Broward County. 50 13. In a prior case in which an entity complained of inadequate notice, the Commission acknowledged that although neither the Act nor the Commission’s Rules specified the exact contents of a public notice, it examined the past practice of the designated entity in determining the adequacy of the notice. 51 Upon review of the Common Carrier Bureau’s practice of including the file number, applicant name, call sign (if any), nature of the application, frequency and location of the facility; the Commission determined that a public notice that did not include the location and frequency information did not contain sufficient information to comply with Section 309( b) of the Act as interpreted by the Common Carrier Bureau over many years. 52 14. When placing an application on public notice as accepted for filing, the former Mass Media Bureau included the file number, applicant name, call sign (if any), nature of the application, frequency and location of the facility. 53 In light of the former Mass Media Bureau’s practice of including the channel group in the public notice, we find that the public notice did not contain sufficient information to comply with Section 309( b) of the Act as interpreted by the former Mass Media Bureau over many years. Ordinarily, we would issue an erratum to the Public Notice to correct the frequency from the B to the F channel group, however, in light of our denial of the waiver request, we ultimately find such action to be unnecessary under the circumstances presented. 2. Standing 15. The Act as implemented by the Commission’s Rules permits only a party in interest to protest an application before the Commission. 54 WBS asserts two reasons for denial of the School Board’s application. First, as noted above, WBS alleges the Application Pubic Notice did not provide adequate notice. Second, WBS asserts that it would not be able to obtain the channels if we granted the School Board’s application. WBS does not assert that it is an applicant nor a licensee. In such cases, an entity that expects to file an application in the future is also without standing because such a claim of potential economic injury is too remote and speculative to show standing as a party in interest. 55 However, we find that WBS does have standing to enforce the right to public notice, which the Act explicitly guarantees to participants to agency actions. 49 Radio Athens, Inc. v. FCC, 401 F. 2d 398, 404 (D. C. Cir. 1968). 50 Mobilfone of Northeastern Pennsylvania, Inc., Memorandum Opinon and Order, 5 FCC Rcd 7414 (CCB 1990). 51 Central Mobile Radio Phone Service, Memorandum Opinion and Order, 41 Rad. Reg. 2d 431 ¶ 9 (1977). 52 Id. 53 See Application Public Notice. 54 47 U. S. C. § 309( d)( 1); 47 C. F. R. § 74.912( a) (1995); 47 C. F. R. § 21.957( a) (1995). 55 See e. g. KIRV Radio, 50 FCC2d at 1010 ¶ 2. 6 Federal Communications Commission DA 03- 3668 8 2. Waiver 18. In light of the School Board’s modification application to authorize ITFS facilities on the F Group channels in Broward County, we must determine whether to grant a waiver of the Commission’s prohibition against the authorization of new ITFS facilities on the F Group channels. An applicant seeking a waiver faces a high hurdle and must plead the facts and circumstances which warrant a waiver. 61 Furthermore, an applicant for a waiver must articulate a specific pleading, and adduce concrete support, preferably documentary. 62 Accordingly, we may grant a waiver of the Commission’s rules under two scenarios. First, a grant of a waiver is appropriate when the underlying purpose of the rule( s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest. 63 In the alternative a grant of a waiver is appropriate when in view of unique or unusual factual circumstances of the instant case, application of the rule( s) would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative. 64 19. The Commission prohibited all but pro forma assignments of grandfathered ITFS licenses because it sought to reserve the redesignated channels for MDS use, as well as to avoid receiving mutually exclusive, fundamentally different applicants for the same channel. 65 Moreover, the Commission averred that the prohibition was consistent with the purpose of a grandfather provision, which is to protect specific interests of the public and of operating stations. 66 The Commission explained that grandfathering provisions protect the public against disruptions in existing service while protecting the reliance interest of the operating station in the spectrum allocated and from economic dislocation. 67 Additionally, the Commission indicated that it would consider any waiver requests, preferably submitted on a joint basis by existing ITFS licensees and MDS permittees in the F group, seeking to show that a modification of a grandfathered ITFS licensee in the F group would result in more efficient spectrum utilization. 68 20. Based upon our review of the record before us, we find that the School Board’s application and waiver request fails to make a sufficient showing that a waiver of Section 74.902 of the Commission’s Rules is warranted under the circumstances presented. As noted above, the Commission 61 WAIT Radio v. FCC, 413 F. 2d 1153, 1157 (D. C. Cir. 1969) (WAIT Radio) aff'd, 459 F. 2d 1203 (1972) cert. denied, 409 U. S. 1027 (1972) citing Rio Grand Family Radio Fellowship, Inc. v. FCC, 406 F. 2d 664 (d. C. Cir. 1968); Birach Broadcasting Corporation, Memorandum Opinion and Order, 18 FCC Rcd 1414 (2003). 62 Fresno MMDS Assoc., Memorandum Opinion and Order, FCC 03- 145, (rel. Jul. 14, 2003) citing WAIT Radio, 413 F. 2d at 1157 n. 9; Family Stations, Inc. v. Directv, Inc, Memorandum Opinion and Order, 17 FCC Rcd 25,333 ¶ 7 (MB 2002). 63 47 C. F. R. § 21.19( a). 64 47 C. F. R. § 21.19( b). 65 MMDS Allocation MO& O on Recon, 98 FCC2d at 132- 33 ¶ 12. 66 Id. ¶ 14. 67 Id. 68 See MMDS Reallocation MO& O on Recon, 98 F. C. C. 2d at 133 n. 7. 8 Federal Communications Commission DA 03- 3668 9 reallocated the F Group channels to provide more channels for the increased demand for MDS use. 69 The School Board, however, does not provide any information that would support a finding that its proposal would serve the underlying purpose of the rule. In fact, the School Board provides a general statement that its proposal will provide efficient utilization of the spectrum in the greater Miami metropolitan area, and promote a wireless cable system of another entity. 70 We find such statement alone without empirical data to support the assertion to be unpersuasive and not sufficient to satisfy the high hurdle articulated in WAIT Radio. 71 21. Further, the School Board has not demonstrated any unique or unusual factual circumstances that would warrant grant of a waiver. Although we applaud the School Board’s attempt to further its educational mission in south Florida, the School Board has not provided any information that would distinguish it from any other school system seeking to enhance its educational programming. Moreover, allowing the School Board to relocate to MMDS channels at this juncture to provide ITFS services would appear to be counter to the Commission’s intent to provide additional spectrum for MMDS. Although this proposed modification is contrary to the Commission’s intent, the School Board has not provided any information that would show that application of Section 74.902( c) would be inequitable, unduly burdensome, or contrary to the public interest. Finally, the School Board has not shown that it has no other alternatives for enhancing the educational programming. IV. CONCLUSIONS 22. We find that the School Board has not submitted sufficient reasons in support of its request for waiver in connection with its proposal to modify the facilities for Station KTB- 84, including relocation of the transmitter site from Dade County (Miami) to Broward County (Ft. Lauderdale). Accordingly, we will deny the waiver request and direct the Licensing and Technical Analysis Branch to dismiss the application. Finally, we grant WBS’ Petition to Deny. V. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED, pursuant to Section 4( i) of the Communication Act of 1934, as amended, 47 U. S. C. § 154( i), and Section 21.19 of the Commission’s Rules, 47 C. F. R. § 21.19, that the waiver request filed by the School Board of Dade County on April 7, 1995 IS DENIED. 24. IT IS FURTHER ORDERED, pursuant to Section 4( i) of the Communication Act of 1934, as amended, 47 U. S. C. § 154( i), and Section 73.3566 of the Commission’s Rules, 47 C. F. R. § 73.3566, that we direct the Licensing and Technical Analysis Branch to DISMISS the School Board of Dade County’s application File No. BMPLIF- 950407DG filed on April 7, 1995. 69 See MMDS Reallocation MO& O, 98 F. C. C. 2d at 1223- 24, ¶ 51. 70 See School Board’s Application; Exhibit IV- 4. Emphasis added. 71 MMDS Reallocation MO& O on Recon, 98 F. C. C. 2d at 133 n. 7. 9 Federal Communications Commission DA 03- 3668 10 25. IT IS FURTHER ORDERED, pursuant to Sections 4( i) and 309 of the Communications Act of 1934, as amended, 47 U. S. C. § 154( i), 309 and Section 21.30 of the Commission’s Rules that the petition to deny filed by Wireless Broadcasting Systems of America, Inc. on July 7, 1995 IS GRANTED. 26. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission’s Rules, 47 C. F. R. §§ 0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION D’wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau 10