*Pages 1--12 from Microsoft Word - 61393.doc* Federal Communications Commission DA 06- 2461 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Consolidated Request of the WCS Coalition For Limited Waiver of Construction Deadline for 132 WCS Licenses Request of WCS Wireless, LLC for Limited Waiver of Construction Deadline for 16 WCS Licenses Request of Cellutec, Inc. for Limited Waiver Of Construction Deadlines for Stations KNLB242 and KNLB216 in Guam/ Northern Mariana and American Samoa ) ) ) ) ) ) ) ) ) ) ) ) ) ) WT Docket No. 06- 102 ORDER Adopted: December 1, 2006 Released: December 1, 2006 By the Acting Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we address three requests for waiver and/ or extension of the construction deadline for Wireless Communications Service (WCS) licenses. The WCS Coalition filed the first request for waiver on March 22, 2006, on behalf of several companies that hold 132 WCS licenses in the 2.3 GHz band that are scheduled to expire on July 21, 2007. 1 Specifically, the WCS Coalition filed a consolidated request for a limited waiver of Section 27. 14( a) of the Commission’s rules, which requires WCS licensees to make a showing of substantial service in their license area by the end of their initial license term. 2 The coalition also requested that we conditionally renew WCS licenses at the July 2007 renewal date, subject to a showing of substantial service in July 2010. In its May 12, 2006 comments supporting the WCS Coalition requests, WCS Wireless, LLC together with its subsidiary WCS Wireless License Subsidiary, LLC (collectively, WCS Wireless) filed its own request for waiver of the construction deadline for sixteen WCS licenses (WCS Wireless Request). 3 On June 9, 2006, Cellutec, Inc. (Cellutec) 1 Consolidated Request for Limited Extension of Deadline for Establishing WCS Compliance With Section 27. 14 Substantial Service Requirement, filed by the WCS Coalition (WCS Coalition Request) (Mar. 22, 2006). The WCS Coalition is made up of eight companies that indirectly hold the majority of WCS licenses authorized to operate within the continental United States: AT& T, Inc., BellSouth Corporation, Comcast Corporation, NextWave Broadband Inc., NTELOS, Inc., Sprint Nextel Corporation, Verizon Laboratories Inc., and WaveTel NC License Corporation. Id. at 1. The Mobility Division released a Public Notice soliciting comment on the WCS Coalition waiver request. See n. 30, infra. 2 Because of the process under which WCS was initially licensed, the deadline for all WCS licenses for meeting the construction requirement is the same date, July 21, 2007. 3 Statement in Support of Consolidated Request for Limited Extension of Build Out Deadline and Request for Waiver of Section 27. 14( a), filed by WCS Wireless, LLC and WCS Wireless License Subsidiary, LLC (May 12, 2006) (WCS Wireless Request). On August 16, 2006, WCS Wireless formally filed its extension request in the Universal Licensing System. 1 Federal Communications Commission DA 06- 2461 2 filed comments in support of the WCS Coalition requests and also sought similar relief for its WCS Stations KNLB242 and KNLB216 located in the Guam/ Northern Mariana and American Samoa markets (Cellutec Request). 4 In addition, Cellutec requested that we extend the term of its licenses. For the reasons discussed below, we find that the public interest is served by granting an extension of the construction deadline until July 21, 2010 for the licenses listed in Attachment A to this Order. We also deny the WCS Coalition’s request that we conditionally renew WCS licenses at the July 2007 renewal date and Cellutec’s request that we extend the term of its licenses. II. BACKGROUND 2. In early 1997, the Commission reallocated the 2.3 GHz band, in part, to provide WCS and satellite Digital Audio Radio Service (SDARS). The Commission adopted service and competitive bidding rules under Parts 27 and 25, respectively, and completed auctions of the spectrum in April 1997. 5 On July 21, 1997, the Commission granted 126 WCS licenses 6 to operate in the 2305- 2320 MHz and 2345- 2360 MHz frequency bands 7 on four channel blocks (A- D). 8 SDARS operates on an exclusive basis in the 25 MHz of spectrum (2320- 2345 MHz) located between the two WCS bands, 9 and is currently licensed to Sirius Satellite Radio, Inc. (Sirius) and XM Radio Inc. (XM Radio). 10 3. WCS licensees may provide a range of services, including “fixed, mobile, radiolocation, and broadcasting- satellite (sound) services.” 11 Initial authorizations for WCS licenses are ten years from 4 Comments, filed by Cellutec, Inc. supporting the WCS Coalition Request and requesting similar relief (June 9, 2006) (Cellutec Comments). On August 31, 2006, Cellutec formally filed its extension request in the Universal Licensing System. See Request for Waiver of Deadline for Establishing Compliance with § 27. 14 Substantial Service Requirement and for Extension of License Expiration Date, filed by Cellutec, Inc. (Cellutec Request) (Aug. 31, 2006). 5 FCC Announces Auction Winners for Digital Audio Radio Service, Public Notice, 12 FCC Rcd 18727 (1997); WCS Auction Closes, Winning Bidders in the Auction of 128 Wireless Communications Service Licenses, Public Notice, 12 FCC Rcd 21653 (1997). The SDARS auction closed on April 2, 1997, and the WCS auction closed on April 25, 1997. 6 FCC Announces the Grant of Wireless Communications Service (“ WCS”) Licenses, Balance of Winning Bids are Due by August 4, 1997, Public Notice, 13 FCC Rcd 4782 (1997). 7 In the Matter of Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service (“ WCS”), GN Docket No. 96- 228, Report and Order, 12 FCC Rcd 10785 (1997) (WCS Report and Order). WCS is a product of congressional legislation directing the Commission to establish wireless services in the 2305- 2320 MHz and 2345- 2360 MHz bands, and to initiate competitive bidding of the spectrum by April 15, 1997. Omnibus Consolidated Appropriations Act, 1997 PUB. L. 104- 208, 110 STAT. 3009 (1996). 8 WCS Report and Order, 12 FCC Rcd at 10807 ¶ 45. Specifically, Channel Block A is located at 2305- 2310 MHz and 2350- 2355 MHz; Channel Block B is located at 2310- 2315 MHz and 2355- 2360 MHz; Channel Block C is located at 2315- 2320 MHz; and Channel Block D is located at 2345- 2350 MHz. Id. at 10808 ¶ 45; 47 C. F. R. § 27. 5( a). The two paired 10 MHz channel blocks are each licensed in 52 Major Economic Areas, and the two unpaired 5 MHz channel blocks are each licensed in 12 Regional Economic Area Groupings. WCS Report and Order, 12 FCC Rcd at 10814 ¶ 54; 47 C. F. R. § 27. 5( a). 9 In the Matter of Establishment of Rules 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 Notice of Proposed Rulemaking, 12 FCC Rcd 5754, 5785 ¶ 73 (1997) (SDARS R& O and FNPRM); 47 C. F. R. § 25. 214( c). 10 The 2320- 2345 MHz band is divided into two 12. 5 MHz segments (2320- 2332. 5 MHz and 2332.5- 2345 MHz). Sirius, formerly Satellite CD Radio, Inc., is licensed on the 2320- 2332. 5 MHz portion, and XM Radio, formerly American Mobile Radio Corporation, is licensed on the 2332. 5- 2345 MHz portion of the SDARS band. 11 See WCS Report and Order, 12 FCC Rcd at 10797 ¶ 25. 2 Federal Communications Commission DA 06- 2461 3 the date the authorizations are issued. 12 At the end of the initial license term, WCS licensees must make a showing of “substantial service” in their licensed area. 13 The Commission explained that it adopted a “very flexible build- out requirement” to “promote efficient use of the spectrum, encourage the provision of service to rural, remote and insular areas and prevent the warehousing of spectrum.” 14 Failure of any WCS licensee to meet the construction requirement results in forfeiture of the license. 15 4. In adopting rules governing SDARS, the Commission recognized that applicants intended to implement, as necessary, terrestrial repeaters, or “gap- fillers,” in urban canyons and other areas where it may be difficult to receive DARS signals transmitted by a satellite. Terrestrial repeaters re- transmit information from the satellite to overcome the effects of signal blockage and multipath interference. 16 Terrestrial repeaters are a complementary part of the SDARS satellite system and also operate on the 25 MHz of spectrum located between the WCS bands. The Commission proposed to adopt rules for terrestrial repeaters in its Further Notice of Proposed Rulemaking released in conjunction with its SDARS Report and Order. 17 While the Further Notice remains pending before the Commission, Sirius and XM Radio have obtained Special Temporary Authority (STA) to operate terrestrial repeaters in several markets. 18 The International Bureau granted the STAs on the condition, inter alia, that all licensed WCS facilities must be protected from interference caused by the SDARS repeaters, and that any interference that may arise from use of the terrestrial repeaters must be resolved immediately through established points of contact. 19 5. Request for Extension of Construction Deadline. The WCS Coalition filed its request on March 22, 2006, seeking either a three- year extension of the July 21, 2007 construction deadline, as long as the Commission adopts permanent rules for SDARS terrestrial repeaters before that deadline, or a three- year extension from the date the Commission releases an order adopting rules for the SDARS terrestrial repeaters. 20 It also requests that the Commission “routinely process and grant applications for 12 WCS Report and Order, 12 FCC Rcd at 10840 ¶¶ 104- 106; 47 C. F. R. § 27. 13( a). 13 47 C. F. R. § 27.14( a). 14 WCS Report and Order, 12 FCC Rcd at 10843 ¶ 111. 15 WCS Report and Order, 12 FCC Rcd at 10843 ¶ 113; 47 C. F. R. §§ 27. 14 (a). 16 SDARS R& O and FNPRM, 12 FCC Rcd at 5810 ¶ 138. 17 SDARS R& O and FNPRM, 12 FCC Rcd at 5812 ¶ 142. The Commission subsequently sought comment to refresh the record. Public Notice, Report No. SPB- 112 (Dec. 23, 1997); Public Notice, IB Docket No. 95- 91 (Jan. 21, 2000). 18 XM Radio filed its STA request on July 12, 2001, and Sirius filed its STA request on July 24, 2001. In the Matter of XM Radio, Inc. Application for Special Temporary Authority to Operate Satellite Digital Audio Radio Service Complementary Terrestrial Repeaters, Order and Authorization, 16 FCC Rcd 16781 (IB Sept. 17, 2001), modified, 16 FCC Rcd 18484 (IB Oct. 15, 2001) (XM Radio 2001 STA Order); In the Matter of Sirius Satellite Radio, Inc. Application for Special Temporary Authority to Operate Satellite Digital Audio Radio Service Complementary Terrestrial Repeaters, Order and Authorization, 16 FCC Rcd 16773 (IB Sept. 17, 2001), modified, 16 FCC Rcd 18481 (IB Oct. 15, 2001) (Sirius 2001 STA Order). In March 2002, Sirius and XM Radio requested renewal of the STAs. Because no action has been taken on these requests, the licensees may continue operations under the initial authorizations. See 47 C. F. R. § 1.62. 19 XM Radio 2001 STA Order, 16 FCC Rcd at 16785- 86 ¶¶ 13- 14; Sirius 2001 STA Order, 16 FCC Rcd at 16777- 78 ¶¶ 13- 14. 20 See WCS Coalition Request at 2- 3; See also 47 C. F. R. § 27.14( a). Section 27. 14( a) provides that “AWS and WCS licensees must make a showing of “substantial service” in their license area within the prescribed license term set forth in § 27. 13.” Id. Section 27. 13 provides that “[ i] nitial WCS authorizations for the 2305- 2320 MHz and 2345- 2360 MHz bands will have a term not to exceed ten years from the date of original issuance or renewal.” 47 C. F. R. § 27. 13( a). 3 Federal Communications Commission DA 06- 2461 4 WCS license renewal in 2007, conditioned upon the submission of a substantial service showing by July 21, 2010.” 21 The WCS Coalition asserts that a three- year extension is necessary due to the uncertainty regarding the rules governing the operation of adjacent band SDARS terrestrial repeaters and the degree to which WCS operations will be protected from harmful interference. 22 It states that this uncertainty has hindered WCS equipment development, network design, and facility deployment. 23 The WCS Coalition also explains that currently available equipment is either proprietary or will not support economically viable offerings of advanced wireless services, including wireless broadband services to consumers. 24 For the same reasons, Cellutec asks that the Commission grant an extension of the construction deadline for its licenses as well as an extension of the license expiration date. 25 6. The WCS Coalition further states that resolution of technical issues associated with terrestrial SDARS repeaters will allow deployment of WCS equipment for broadband and other advanced services to the public, including service to rural and other underserved areas. 26 Without an extension, the WCS Coalition argues, significant capital investment would be expended to deploy sub- optimal services to meet the existing construction deadline and preserve the licenses. 27 Further, the WCS Coalition contends that an extension is warranted because these circumstances are beyond the WSC licensees’ control. 28 Finally, the WCS Coalition argues that the extension would be consistent with Commission precedent where equipment is scarce and deployment too costly. Specifically, they argue that granting an extension in this case is supported by previous instances where construction deadlines were extended for licensees committed to deploying advanced technologies under development, but not widely available by the applicable construction benchmark. 29 7. Comments. The Mobility Division released a Public Notice on May 10, 2006, asking for comment on the WCS Coalition Request. 30 We received seven comments, three from equipment manufacturers, in support of the WCS Coalition Request, and two comments opposing the WCS Coalition 21 WCS Coalition Request at 4. 22 Id. at 2. The WCS Coalition also contends that a variety of unique challenges have created uncertainty for WCS, including a Congressional mandate to auction the spectrum in a short time frame; the undeveloped nature of equipment at the time of auction; a post- auction proposal to deploy domestic satellite service in the WCS band; and prolonged negotiations with Mexico regarding signal levels for Mexican satellites operating in the WCS band with footprints covering portions of the United States. Id. at 4. 23 Id. at 2, 12. 24 Id. at 13. 25 See Cellutec Request at 2- 3. 26 Id. at 11. 27 Id. at 3, n. 4, 11. 28 Id. at 4, n. 4, 12- 15. 29 Id. at 12. The WCS Coalition focused on several cases including: In the Matter of Request of Warren C. Havens for Waiver or Extension of the Five- year Construction Requirement for 220 MHz Service Phase II Economic Area and Regional Licensees, Memorandum Opinion and Order, 19 FCC Rcd 12994 (WTB 2004) (Havens 220 MHz Order) (extending construction requirement to allow for the use of next- generation digital technology in the band); FCI 900, Inc. Expedited Request for 3- Year Extension of 900 MHz Band Construction Requirements and Petition for Declaratory Ruling, Memorandum Opinion and Order, 16 FCC Rcd 11072, 11077- 78 ¶¶ 8- 9 (2001) (FCI 900, Inc.). 30 Wireless Telecommunications Bureau Seeks Comment on Consolidated Request by the WCS Coalition for Waiver of Wireless Communications Services (WCS) Construction Rule, Public Notice, 21 FCC Rcd 5148 (WTB MD 2006). 4 Federal Communications Commission DA 06- 2461 5 Request. 31 The WCS Coalition and XM Radio also filed responsive comments. 32 Supporting comments agree with the WCS Coalition’s contention that the regulatory uncertainty regarding the rules and technical requirements for terrestrial SDARS repeaters has hindered WCS deployment and created equipment problems. Supporting comments contend that without certainty about the extent to which WCS will be vulnerable to harmful interference from SDARS terrestrial repeaters, “WCS licensees cannot design and deploy networks capable of providing the fast, reliable quality of service that consumers demand, and equipment suppliers will be unable to complete development of products for use in the 2.3 GHz band within the United States.” 33 As Motorola states in its comments, “[ w] hile WCS Coalition members have deployed a variety of limited fixed service systems, the technical uncertainty surrounding the band has stymied larger- scale deployments.” 34 Motorola also states that the stringent out-of- band emission (OOBE) limits have hindered WCS deployment. 35 8. Sirius and XM Radio oppose any extension for WCS licensees, arguing that the difficulties faced by the WCS community were known at the time they obtained the licenses at auction. 36 XM Radio contends that the waiver request is based on business decisions, not circumstances beyond the control of the WCS licensees. 37 Opposing commenters also state that the WCS licensees were aware of the stringent OOBE requirements when they bid on the licenses, and that if those limitations impede equipment development, it is part of the business risk undertaken by the WCS licensees. 38 Sirius also points out that the large difference in price between WCS and SDARS licenses reflects the technical limitations attached to the WCS licenses. 39 XM Radio contends that the “regulatory uncertainty” faced by 31 The comments filed in support of the WCS Coalition Request include: WCS Wireless Request; Cellutec Request; Comments of Intel Corporation (June 9, 2006) (Intel Comments); Comments, filed by DigitalBridge Communications, LLC (June 9, 2006) (DBC Comments); Comments of Motorola, Inc. (June 9, 2006) (Motorola Comments); Comments of Navini Networks (June 9, 2006) (Navini Comments); and Reply Comments of Soma Networks, Inc. Comments in opposition include: Opposition of Sirius Satellite Radio, Inc. (June 9, 2006) (Sirius Opposition); and Comments of XM Radio, Inc. (June 9, 2006) (XM Radio Opposition). We also note that the National Association of Broadcasters (NAB) submitted comments, but on the issue of local origination of content on SDARS terrestrial repeaters, not on the request for an extension of the construction requirement. Comments of the National Association of Broadcasters (June 9, 2006) (NAB Comments). Finally, we note that on August 2, 2006, Fujitsu Network Communications filed untimely comments addressing WiMax equipment. Although we generally do not accept late- filed pleadings, we find that the public interest would be served by our consideration of the full record and therefore accept this pleading. 32 Reply Comments of the WCS Coalition (June 23, 2006) (WCS Coalition Reply Comments); Reply Comments of XM Radio, Inc. (June 23, 2006) (XM Radio Reply Comments). 33 WCS Coalition Request at 9. As Intel points out, it has now developed broadband equipment using the 2. 3 GHz band for use in the Asia market, but it has not yet finalized plans for 2.3 GHz products in the United States, again, according to Intel, because of the regulatory uncertainties surrounding the band. Intel Comments at 2; see WCS Wireless Request at 5 (stating that “[ w] ithout information on what interference protection WCS licensees must provide SDARS licensees and on what interference protection SDARS licensees must provide WCS licensees, it becomes impractical for vendors to design, price and offer equipment in the WCS bands.”); Motorola Comments at 5 (stating that “[ t] he lack of technical rules governing adjacent band satellite DARS repeater stations results in uncertainty in how to design WCS equipment”); Navini Comments at 1 (stating that “the continuing lack of permanent rules for terrestrial DARS repeaters impacts the WCS licensees’ ability to develop and implement mobile wireless broadband networks that provide the ubiquitous, fast, and reliable service that consumers demand”). 34 Motorola Comments at 2. 35 Id. at 5. 36 XM Radio Opposition at 9; Sirius Opposition at 10. 37 XM Radio Opposition at 10- 11. 38 Sirius Opposition at 11; XM Radio Opposition at 9. 39 Sirius Opposition at 3- 4, 13. 5 Federal Communications Commission DA 06- 2461 6 WCS licensees is inherent in the rulemaking process. 40 Sirius and XM Radio also contend that WCS broadband equipment has been available for four years and WCS licensees were aware of the risk that mobile might not be feasible before the licenses were auctioned. 41 They argue further that the issues raised by the WCS Coalition associated with SDARS repeaters do not justify an extension because these repeaters currently operate on a non- interference basis to WCS operations, and the Further Notice of Proposed Rulemaking on terrestrial repeaters was issued before the WCS auction. 42 Finally, XM Radio argues that the cases cited by the WCS Coalition, where construction extensions were granted due to a lack of equipment, are distinguishable from the instant case. 43 III. DISCUSSION 9. We grant a three- year extension of the ten- year construction requirement under Section 27.14( a) of the Commission’s rules for the licenses listed in Attachment A to this Order. Pursuant to section 1.946( e)( 1) of the Commission’s rules, an extension of time to complete construction may be granted if the licensee shows that the failure to complete construction is due to causes beyond its control. 44 As discussed below, we find that WCS licensees have demonstrated that they face factors beyond their control that have limited their options in providing service, but that new technology solutions may be available in the near future. We therefore believe that strict enforcement of Section 27.14( a) in this instance would not be in the public interest. 10. We agree with the WCS Coalition that limited deployment attempts using available equipment have been marred by technical problems or proved to be economically infeasible. 45 As the Coalition states, other equipment deployments, such as BellSouth’s recent limited launch of commercial broadband operations in four markets, cannot be replicated by other licensees because BellSouth’s technology is proprietary. 46 We are persuaded by the commenters that relatively restrictive OOBE limits may have impeded the development of WCS equipment and have contributed to the unique circumstances of the band. 47 Moreover, participation by almost all of the licensees in the WCS industry in this 40 XM Radio Opposition at 8. 41 Sirius Opposition at 10; XM Radio Opposition at 8. 42 XM Radio Opposition at 5; Sirius Opposition at 12. 43 XM Opposition at 9. 44 47 C. F. R. § 1.946( e)( 1). Further, the Wireless Telecommunications Bureau (Bureau) has recognized that “compliance with construction requirements may be difficult at times,” and “the Commission has stated that, in situations in which the circumstances are unique and the public interest would be served, it would consider waiving construction requirements on a case- by- case basis.” See Havens 220 MHz Order, 19 FCC Rcd at 13000 ¶ 14. 45 Id. at 12, n. 25. The WCS Coalition explains that Verizon conducted two separate trials of pre- WiMAX proprietary equipment using WCS spectrum from approximately July 2002 to March 2003. Verizon conducted the first test in Herndon, VA using equipment manufactured by BeamReach Networks, Inc., and the second test in Ellicott City, MD using equipment manufactured by SOMA Networks, Inc. Id. 46 See WCS Coalition Request at 5- 6, n. 12. In September 2005, BellSouth launched a WCS- based broadband system in Palatka, Florida, a rural market area. In December 2006, it expanded the service to another rural area in Deland, Florida. Id. Bell South also launched commercial wireless broadband services over limited geographic areas in New Orleans, Louisiana as well as Gulfport and Biloxi, Mississippi to help restore services in areas devastated by Hurricane Katrina. Id. These limited deployments, however, use “pre- WiMAX” technology that is not viable for widespread deployments. Id. 47 See Motorola Comments at 8; Intel Comments at 2; WCS Reply Comments at 11- 12. 6 Federal Communications Commission DA 06- 2461 7 proceeding leads us to believe that the technical and equipment challenges in this band are widespread. 48 11. We believe that this situation is similar to previous instances where the Bureau extended applicable construction deadlines as a result of a lack of equipment. For example, in the Havens 220 MHz Order, the Bureau found an extension was warranted because: (i) while equipment with limited functionality was available at the time of the request, an extension would provide the equipment market time to develop the next- generation digital technology that might allow for viable commercial operation of voice or data networks in the 220 MHz band; 49 and (ii) the 220 MHz band’s narrow, non- contiguous channels contributed to unique circumstances that limited equipment options. 50 In addition, in FCI 900, Inc., the Bureau granted an extension of the construction deadline to allow the introduction of innovative digital 900 MHz voice services rather than require construction of stop- gap, legacy systems. 51 12. We believe a similar situation exists in this proceeding and disagree with XM Radio that these cases are “readily distinguishable.” 52 For example, although a few WCS licensees have conducted trials using WCS spectrum 53 and have some limited equipment options, these options are not widely accepted or based upon open protocols and have not yet proven suitable for widespread deployment of advanced wireless services. 54 Based on trials conducted over the past eight years, WCS licensees have determined that the most viable business model for WCS spectrum is to provide advanced wireless services, including wireless broadband. 55 In addition, the record in this proceeding shows that new 48 See Havens 220 MHz Order, 19 FCC Rcd at 13002, ¶ 19 (fact that twenty- three licensees have sought relief leads us to believe that the technical and equipment challenges in this band are widespread). 49 Havens 220 MHz Order, 19 FCC Rcd at 13001 ¶ 16. 50 See id. at 13000- 01 ¶ 15; see also, Request of Warren C. Havens for Waiver of the Five- Year Construction Requirement for his Multilateration Location and Monitoring Service Economic Area Licenses, Memorandum Opinion and Order, 19 FCC Rcd 23742 (2004) (Havens LMS) (unique spectrum sharing situation and regulations contributed to a lack of equipment in 902- 928 MHz band making strict application of construction requirement contrary to the public interest). 51 FCI 900, Inc., 16 FCC Rcd 11076 ¶ 6. 52 XM Radio Opposition at 9. In particular, XM Radio argues that these cases are unavailing because: (1) equipment is available for WCS; (2) the collective business judgment of WCS licensees makes equipment “unavailable,” not technical problems; and (3) because the WCS Coalition is made up of “some of the largest telecommunications companies in the world,” it should be able to get manufacturers to invest in WCS equipment. Id. at 10- 11. 53 WCS Coalition Request at 12, n. 25. The WCS Coalition explains that AT& T Inc. launched the service on a trial basis in the Dallas/ Fort Worth market in 2000 and, during 2001 and 2002, undertook full commercial launch of the service in Los Angeles, San Diego, Houston, Galveston, Corpus Christi, Santa Barbara, Seattle, Vallejo, Chicago, and Alaska markets. Id. According to the WCS Coalition, AT& T ultimately discontinued the service because costs proved too high and technical problems proved too difficult to surmount. Id. The WCS Coalition also explains that Comcast developed and tested, in conjunction with Hybrid Networks Inc., ADC Telecommunications, Inc., and California Amplifier, Inc., a one- way 10 Mbps High- Speed Internet modem with telephone return fixed wireless service using WCS spectrum. Id. 54 See id. at 5- 6, n. 12; see also Motorola Comments at 3- 4. As the WCS Coalition explains, while equipment compliant with WiMAX profiles is currently being developed for use in the 2.3 GHz spectrum, certification and equipment production for operation in the United States will not likely occur in time for that equipment to be deployed before the July 21, 2007 construction deadline. WCS Coalition Request at 6; WCS Coalition Reply Comments at 14. 55 In fact, the WCS Coalition states that over the past eight years, WCS licensees have launched fixed service offerings on a limited basis, leading many WCS licensees to conclude that the most viable business model for WCS spectrum is to provide advanced wireless services, including wireless broadband. WCS Coalition Request at 5- 6. 7 Federal Communications Commission DA 06- 2461 8 WiMAX technology may be available in the 2.3 GHz band in the next few years. 56 Moreover, the WCS Coalition has indicated that, in the event the Commission declines to extend the WCS construction deadline, many, if not all, of its members would build sub- optimal, stop- gap systems intended simply to preserve their licenses. 57 As in FCI 900, Inc., we conclude that the public interest would be ill- served by compelling WCS licensees to devote their resources to the construction of stop- gap, legacy systems merely to meet the July 21, 2007 construction deadline rather than consumer demand. 13. For these reasons, we grant an extension of the construction deadline for the licenses listed in Attachment A to this Order for three years, from July 21, 2007, to July 21, 2010. We expect WCS licensees to take advantage of this relief and aggressively develop equipment and service options for the 2.3 GHz band. The extension of the construction deadline until July 21, 2010, is intended to give WCS licensees additional flexibility to develop equipment and to deploy services based on opportunities available to them in the near future. 14. Although we agree that a three- year construction deadline extension is warranted in this case, we reject the WCS Coalition’s argument that the timing of relief should be based on the resolution of the pending SDARS repeaters rulemaking. We believe that a lack of certainty regarding the construction deadline could act as a disincentive for WCS licensees to expeditiously develop technological solutions for the band and construct systems. This would undermine one of the purposes of the construction requirement— to prevent spectrum warehousing. 58 In addition, we note that the WCS operating rules are established and that, with respect to the pending SDARS repeaters rulemaking, WCS licensees will be able to participate in that proceeding to ensure that their interests are considered. 15. We also deny the WCS Coalition's request to conditionally grant renewal for the subject licenses, and we deny Cellutec's request to extend the license terms of its licenses to coincide with the new construction deadline. 59 Because the members of the Coalition have not filed renewal applications at this time, a ruling on prospective renewal requests would be premature. 60 Moreover, we find that Cellutec has not provided sufficient justification to warrant a waiver and extension of its license term. 61 Thus, while we are extending the deadline to meet the construction requirements, we remind WCS licensees that 56 WCS Coalition Request at 10, n. 21. WiMAX (World Interoperability for Microwave Access, Inc.) is a wireless broadband technology based on the IEEE 802. 16 standard, which supports delivery of last mile wireless broadband access as an alternative to cable and DSL. WiMAX can support fixed and nomadic, as well as portable and mobile wireless broadband applications without the need for direct line- of- sight with a base station. WiMAX Forum White Paper, Third Plugfest – Sophia Antipolis at 4 (Mar. 2006) (WiMAX Forum White Paper). 57 See WCS Coalition Reply Comments at 10. 58 The Commission adopted the construction requirement for WCS in part to fulfill its obligations under section 309( j) of the Communications Act of 1934, as amended, which requires the Commission to include “safeguards to protect the public interest in the use of the spectrum” and performance requirements “to ensure prompt delivery of service to rural areas, to prevent stockpiling or warehousing of spectrum by licensees or permittees, and to promote investment in and rapid deployment of new technologies and services.” 47 U. S. C. §§ 309( j)( 3), 309( j)( 4)( B); see WCS Report and Order, 12 FCC Rcd at 10848 ¶ 114. 59 See WCS Coalition Request at 4; Cellutec Request at 1, 3. 60 In fact, renewal applications may not be filed until ninety days prior to license expiration. See 47 C. F. R. § 1.949. 61 Pursuant to section 1.925 of the Commission’s rules, a waiver of the Commission’s rules may be granted, where the petitioner demonstrates that (1) the underlying purpose of the rule 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; or (2) in view of unique or unusual factual circumstances of the instant case, application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. 47 C. F. R. § 1.925. 8 Federal Communications Commission DA 06- 2461 9 wish to renew their licenses that they must timely file a renewal application in compliance with the Commission’s rules for its licenses. 62 16. Finally, we note that the issues raised in NAB’s Comments are outside the scope of this proceeding. NAB urges the Commission to resolve the SDARS terrestrial repeater rulemaking, but then addresses the issue of local origination of broadcast content on the SDARS terrestrial repeaters. 63 NAB also argues that the Commission should refrain from authorizing unlicensed devices in the television broadcast bands until it has determined whether advanced wireless services are underutilized in the 2.3 GHz band. 64 Neither issue is relevant to the requests for waiver of the WCS construction requirement. IV. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED that, pursuant to sections 4( i) and 303( r) of the Communications Act, as amended, 47 U. S. C. §§ 154( i), 303( r), and sections 0.331 and 1.946( e) of the Commission’s rules, 47 C. F. R. §§ 0.331, 1.946( e), the construction deadlines for the Wireless Communications Service licenses listed in Attachment A to this Order are extended to July 21, 2010. 18. IT IS FURTHER ORDERED that, pursuant to sections 4( i) and 303( r) of the Communications Act, as amended, 47 U. S. C. §§ 154( i), 303( r), and sections 0.331 and 1.949 of the Commission’s rules, 47 C. F. R. §§ 0.331, 1.949, the request filed by the WCS Coalition to conditionally grant applications for WCS license renewal IS DENIED. 19. IT IS FURTHER ORDERED that, pursuant to sections 4( i) and 303( r) of the Communications Act, as amended, 47 U. S. C. §§ 154( i), 303( r), and sections 0.331 and 1.949 of the Commission’s rules, 47 C. F. R. §§ 0. 331, 1.949, the request filed by Cellutec, Inc. to extend its license term IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Catherine W. Seidel Acting Chief Wireless Telecommunications Bureau 62 47 C. F. R. § 1.949( a). We further remind licensees that section 1.946 of the Commission’s rules provides that “If a licensee fails to commence service or operations by the expiration of its construction period or to meet its coverage or substantial service obligations by the expiration of its coverage period, its authorization terminates automatically, without specific Commission action, on the date the construction or coverage period expires.” 47 C. F. R. § 1. 946( c). 63 NAB Comments at 2- 5. 64 NAB Comments at 5- 6. 9 Federal Communications Commission DA 06- 2461 10 ATTACHMENT A Call Sign Market Licensee Name KNLB200 MEA001 NW Spectrum Co. KNLB201 MEA007 BELL SOUTH WIRELESS CABLE INC KNLB202 MEA006 BellSouth Mobile Data, Inc. KNLB203 MEA013 AWACS, Inc. KNLB204 MEA002 Comcast WCS ME02, Inc. KNLB205 MEA032 Nextel Spectrum Acquisition Corp. KNLB206 MEA017 NW Spectrum Co. KNLB207 MEA030 WCS Wireless License Subsidiary, LLC KNLB208 MEA003 WCS Wireless License Subsidiary, LLC KNLB210 MEA001 Verizon Laboratories, Inc. KNLB211 MEA035 AWACS, Inc. KNLB213 MEA009 NW Spectrum Co. KNLB214 MEA031 BellSouth Mobile Data, Inc. KNLB215 MEA038 NW Spectrum Co. KNLB216 REA011 CELLUTEC KNLB217 MEA017 NW Spectrum Co. KNLB218 MEA020 NW Spectrum Co. KNLB219 MEA040 NW Spectrum Co. KNLB220 MEA044 NW Spectrum Co. KNLB221 MEA007 BELL SOUTH WIRELESS CABLE INC KNLB222 MEA008 BELL SOUTH WIRELESS CABLE INC KNLB223 MEA008 BELL SOUTH WIRELESS CABLE INC KNLB224 MEA009 BELL SOUTH WIRELESS CABLE INC KNLB225 MEA010 BELL SOUTH WIRELESS CABLE INC KNLB226 MEA010 BELL SOUTH WIRELESS CABLE INC KNLB227 MEA011 BELL SOUTH WIRELESS CABLE INC KNLB228 MEA011 BELL SOUTH WIRELESS CABLE INC KNLB229 MEA022 BELL SOUTH WIRELESS CABLE INC KNLB230 MEA023 BELL SOUTH WIRELESS CABLE INC KNLB231 MEA023 BELL SOUTH WIRELESS CABLE INC KNLB232 MEA024 Nextel Spectrum Acquisition Corp. KNLB233 MEA025 BELL SOUTH WIRELESS CABLE INC KNLB234 MEA025 BELL SOUTH WIRELESS CABLE INC KNLB235 MEA026 Nextel Spectrum Acquisition Corp. KNLB236 MEA027 BELL SOUTH WIRELESS CABLE INC KNLB237 MEA027 BELL SOUTH WIRELESS CABLE INC KNLB238 REA002 BELL SOUTH WIRELESS CABLE INC KNLB239 REA002 BELL SOUTH WIRELESS CABLE INC KNLB240 REA004 BELL SOUTH WIRELESS CABLE INC KNLB241 REA004 BELL SOUTH WIRELESS CABLE INC KNLB242 REA009 CELLUTEC KNLB243 MEA014 NTELOS Inc. KNLB244 MEA014 AWACS, Inc. KNLB245 MEA021 AWACS, Inc. KNLB246 MEA024 BellSouth Mobile Data, Inc. KNLB247 MEA028 BellSouth Mobile Data, Inc. KNLB248 MEA029 BellSouth Mobile Data, Inc. KNLB249 MEA034 AWACS, Inc. KNLB250 MEA035 AWACS, Inc. KNLB251 MEA036 AWACS, Inc. KNLB252 MEA036 AWACS, Inc. KNLB253 MEA037 AWACS, Inc. KNLB254 MEA037 AWACS, Inc. KNLB255 MEA038 NW Spectrum Co. KNLB256 MEA039 AWACS, Inc. 10 Federal Communications Commission DA 06- 2461 11 KNLB257 MEA040 BellSouth Mobile Data, Inc. KNLB258 MEA041 BellSouth Mobile Data, Inc. KNLB259 MEA041 BellSouth Mobile Data, Inc. KNLB260 MEA042 AWACS, Inc. KNLB261 MEA042 AWACS, Inc. KNLB262 MEA043 AWACS, Inc. KNLB263 MEA045 BellSouth Mobile Data, Inc. KNLB264 MEA047 AWACS, Inc. KNLB265 MEA047 AWACS, Inc. KNLB266 MEA048 BellSouth Mobile Data, Inc. KNLB267 MEA050 AWACS, Inc. KNLB268 MEA050 AWACS, Inc. KNLB269 MEA051 AWACS, Inc. KNLB270 REA007 AWACS, Inc. KNLB271 REA007 AWACS, Inc. KNLB272 REA008 BellSouth Mobile Data, Inc. KNLB273 REA010 AWACS, Inc. KNLB274 REA010 AWACS, Inc. KNLB275 MEA004 Comcast WCS ME04, Inc. KNLB276 MEA005 Comcast WCS ME05, Inc. KNLB277 MEA012 BellSouth Mobile Data, Inc. KNLB278 MEA016 Comcast WCS ME16, Inc. KNLB279 MEA018 AWACS, Inc. KNLB280 MEA019 Comcast WCS ME19, Inc. KNLB281 MEA019 Comcast WCS ME19, Inc. KNLB282 MEA022 Comcast WCS ME22, Inc. KNLB283 MEA026 Comcast WCS ME26, Inc. KNLB284 MEA028 Comcast WCS ME28, Inc. KNLB285 MEA033 AWACS, Inc. KNLB286 MEA043 AWACS, Inc. KNLB287 MEA044 BellSouth Mobile Data, Inc. KNLB288 MEA046 BellSouth Mobile Data, Inc. KNLB291 MEA032 Nextel Spectrum Acquisition Corp. KNLB292 MEA020 NW Spectrum Co. KNLB293 MEA021 NW Spectrum Co. KNLB294 MEA034 NW Spectrum Co. KNLB295 MEA045 WCS Wireless License Subsidiary, LLC KNLB296 MEA046 WCS Wireless License Subsidiary, LLC KNLB297 REA001 WCS Wireless License Subsidiary, LLC KNLB298 REA005 WCS Wireless License Subsidiary, LLC KNLB299 REA005 WCS Wireless License Subsidiary, LLC KNLB300 REA006 WCS Wireless License Subsidiary, LLC KNLB301 REA006 WCS Wireless License Subsidiary, LLC KNLB302 MEA015 WCS Wireless License Subsidiary, LLC KNLB303 MEA015 WCS Wireless License Subsidiary, LLC KNLB304 MEA016 WCS Wireless License Subsidiary, LLC KNLB305 MEA018 WCS Wireless License Subsidiary, LLC KNLB306 MEA029 WCS Wireless License Subsidiary, LLC KNLB307 MEA033 WCS Wireless License Subsidiary, LLC KNLB308 MEA048 WCS Wireless License Subsidiary, LLC KNLB312 MEA002 Verizon Laboratories, Inc. KNLB313 MEA003 Verizon Laboratories, Inc. KNLB314 MEA004 Verizon Laboratories, Inc. KNLB315 MEA005 Verizon Laboratories, Inc. KNLB316 MEA006 Verizon Laboratories, Inc. KNLB317 MEA012 Verizon Laboratories, Inc. KNLB318 MEA013 Verizon Laboratories, Inc. KNLB322 MEA030 NW Spectrum Co. KNLB323 MEA031 NW Spectrum Co. 11 Federal Communications Commission DA 06- 2461 12 KNLB324 MEA039 AWACS, Inc. KNLB325 REA003 AWACS, Inc. WPQL631 REA001 Comcast WCS ME04, Inc. WPQL632 REA003 Comcast WCS ME16, Inc. WPQL633 REA003 Comcast WCS ME19, Inc. WPQL634 REA001 BellSouth Mobile Data, Inc. WPQL635 REA003 BellSouth Mobile Data, Inc. WPQL636 REA001 Comcast WCS ME02, Inc. WPQL707 REA001 BellSouth Mobile Data, Inc. WPQL708 REA003 AWACS, Inc. WPQL709 REA003 AWACS, Inc. WPQL710 REA003 BellSouth Mobile Data, Inc. WPQL711 REA003 BellSouth Mobile Data, Inc. WPQL712 REA003 AWACS, Inc. WPQL713 REA003 BellSouth Mobile Data, Inc. WPQL714 REA003 AWACS, Inc. WPSL350 MEA007 Nextel Spectrum Acquisition Corp. WPSL351 MEA008 Nextel Spectrum Acquisition Corp. WPSL352 MEA009 Nextel Spectrum Acquisition Corp. WPSL353 MEA010 Nextel Spectrum Acquisition Corp. WPSL354 MEA023 Nextel Spectrum Acquisition Corp. WPSL355 MEA025 Nextel Spectrum Acquisition Corp. WPSL356 MEA027 Nextel Spectrum Acquisition Corp. WPSL357 MEA007 Nextel Spectrum Acquisition Corp. WPSL358 MEA008 Nextel Spectrum Acquisition Corp. WPSL359 MEA010 Nextel Spectrum Acquisition Corp. WPSL360 MEA023 Nextel Spectrum Acquisition Corp. WPSL361 MEA025 Nextel Spectrum Acquisition Corp. WPSL362 MEA027 Nextel Spectrum Acquisition Corp. WPYP768 MEA032 Nextel Spectrum Acquisition Corp. WPYP769 MEA032 Nextel Spectrum Acquisition Corp. WPZA810 MEA008 WaveTel NC License Corporation WPZA811 MEA007 WaveTel NC License Corporation WPZA812 MEA008 WaveTel NC License Corporation WPZA813 MEA007 WaveTel NC License Corporation WQDM396 REA003 BellSouth Mobile Data, Inc. 12