Federal Communications Commission DA 07-288 
1
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
WBSWP LICENSING CORPORATION
Applications for Extension of Time to Construct, 
Certification of Completion of Construction, and 
Renewal of Broadband Radio Service Station 
WMI841 
And
SCHOOL BOARD OF PALM BEACH COUNTY 
FLORIDA
Request for Extension of Mandatory Negotiation 
Period
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File Nos. 9750026, 20011012AAG,  
20030807AAB
MEMORANDUM OPINION AND ORDER
Adopted:  January 29, 2007  Released:  January 29, 2007
By the Deputy Chief, Broadband Division, Wireless Telecommunications Bureau:
I. INTRODUCTION
1. On April 14, 2005, the School Board of Palm Beach County, Florida (Palm Beach) filed a 
petition for reconsideration1 of the Wireless Telecommunications Bureau’s (Bureau) actions granting 
applications for extension of time to construct2 and for renewal of license3 for Broadband Radio Service 
(BRS) Station WMI841, licensed to WBSWP Licensing Corporation (WBSWP), a subsidiary of Sprint 
Nextel Corporation, as well as accepting WBSWP’s certification of completion of construction4 for 
Station WMI841. Also, on October 22, 2006, Palm Beach filed a request to defer or extend the 
mandatory negotiation period specified in Section 27.1216(b) of the Commission’s Rules5 for major 
overlaps between Station WMI841 and Palm Beach’s grandfathered Educational Broadband Service 
  
1 See Petition for Reconsideration (Petition), File Nos. 9750026, 20011012AAG, 20030807AAB (filed Aug. 6, 2004)
(Petition). 
2 File No. 9750026 (Extension Application).
3 File No. 20030807AAB (Renewal Application).
4 File No. 20011012AAG (Construction Certification).
5 47 C.F.R. § 27.1216(b).
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2
(EBS) Station KHU90.6  For the reasons stated below, we dismiss the Petition, grant the Extension 
Request in part, and clarify the process for WBSWP and Palm Beach to divide their geographic service 
area if they do not reach a negotiated agreement.
II. BACKGROUND
2. Palm Beach has been the licensee of KHU90, a grandfathered EBS station in Boynton 
Beach, Florida operating on the E channel group, since 1974.  In 1983, the Commission redesignated the 
E and F Group ITFS channels from the EBS service to BRS usage.7 The Commission took this action in 
an effort to spur the development of BRS to promote effective and intense utilization of the spectrum 
leading to its highest valued use.8 As part of its decision, the Commission grandfathered EBS licensees 
operating on the E Group and F Group channels subject to the following limitations:
Grandfathered [EBS] stations operating on the E and F channels will only be protected to 
the extent of their service that is either in the operation or the application stage as of May 
26, 1983.  These licensees or applicants will not generally be permitted to change 
transmitter location or antenna height, or to change transmission power. In addition, any 
new receive stations added after May 26, 1983 will not be protected against interference 
from [BRS] transmissions.  
In this fashion, all facets of grandfathered EBS operations were frozen as of May 26, 1983.9
3. On May 28, 1992, People’s Choice TV, Inc. was issued a construction permit to operate a 
BRS station on the same site as Palm Beach, subject to demonstrating protection to Palm Beach’s 
operations.10 On December 28, 1993, Sprint filed an application to displace Station KHU90 to the D 
channel group.11  That application was mutually exclusive with an application filed by Florida Atlantic 
University (FAU) for a new EBS station on the D channel group.12
4. In 1995, Palm Beach and Sprint entered into a leasing agreement.13 In that connection, 
on May 24, 1995, Sprint, Palm Beach, FAU, and other parties filed a settlement agreement that attempted 
  
6 Letter from Edwin N. Lavergne, Esq. and Donna A. Balaguer, Esq. to John J. Schauble, Deputy Chief, Broadband 
Division, Wireless Telecommunications Bureau (Aug. 22, 2006) (Extension Request).
7See In the Matter of 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, GN Docket No. 80-112, CC Docket No. 80-116, Report and Order, 
94 FCC 2d 1203 (1983) (E and F Group Reallocation Order).
8 Id. at 1228-29 ¶¶ 61-63. 
9 See 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, GN Docket No. 80-112, CC Docket No. 80-116, Memorandum Opinion and 
Order on Reconsideration, 98 FCC 2d 129, 132-33 ¶ 12 (1983).
10 File No. BPMD-8305624 (granted May 28, 1992).  In 1996, the authorization was assigned to WBSWP.  File No. 
BALMD-9350734 (granted Jul. 1, 1996).
11 At the time, Section 74.986 of the Commission’s Rules allowed the filing of involuntary station modification 
applications in order to avoid interference.  The party filing the application would be required to make the 
modifications at its own expense.
12 Petition at 2.
13 Petition at 2.
Federal Communications Commission DA 07-288 
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to resolve the mutual exclusivity between the applications and other pending applications.14  As part of 
that agreement, Palm Beach filed a voluntary application to colocate their facilities and to split the D 
channel group between Palm Beach and FAU.15  Sprint also filed an application to relocate Station 
WMI841 to the same transmitter site used by Station KHU90.16 At the urging of the parties (including 
Palm Beach),17 that application was granted on October 15, 1998.18  As a result, Sprint and Palm Beach 
were authorized to operate at the same site.
5. On October 3, 1996, WBSWP filed an application for extension of time to construct 
WMI841.19 On October 12, 2001, Sprint submitted a certification of completion of construction for 
Station WMI841.20 On August 7, 2003, at the request of Bureau staff, WBSWP submitted an application 
for renewal of license of Station WMI841.21 No petitions to deny or informal objections were filed 
against these applications.
6. On July 29, 2004, the Commission released a Report and Order and Further Notice of 
Proposed Rule Making that fundamentally restructured the band to provide BRS and EBS licensees with 
greater flexibility, and took numerous steps to promote competition, innovation, and investment in 
wireless broadband services and educational services.22 Among other changes, the Commission instituted 
geographic area licensing for BRS and EBS licensees.  Specifically, under the new rules, BRS and EBS 
incumbent licensees now have a 35-mile radius geographic service area and may place transmitters 
anywhere within their geographic service area.23  In those instances where co-channel geographic service 
areas overlapped, the overlap area was split by drawing a chord between the intersection points of the 
respective service areas (a process known as “splitting the football”).24 In the case of overlaps between 
grandfathered EBS stations operating on the E and F channel groups and overlapping incumbent BRS 
stations, the Commission sought further comment on the appropriate mechanism for addressing those 
overlaps.25
  
14 Market Settlement Agreement (filed May 24, 1995).
15 File Nos. 19950524DN, 19950524DE.
16 File No. BMPMD-9550711.
17 Petition at 2.
18 See Public Notice, Report No. D-1008-A (rel. Oct. 15, 1998) at 9.
19 Extension Application.
20 Construction Certification.
21 Renewal Application.
22 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and 
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, 
et al.; WT Docket Nos. 03-66, et al., Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 
14165 (2004) (BRS/EBS R&O & FNPRM).
23 47 C.F.R. §§ 27.1206(a)(1), 27.1209(b).
24 47 C.F.R. § 27.1206(a)(1).
25 BRS/EBS R&O & FNPRM, 19 FCC Rcd at 14288-14291 ¶¶ 333-343.
Federal Communications Commission DA 07-288 
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7. On February 22, 2005, the Bureau granted the Extension Request.  On March 11, 2005, 
the Bureau accepted the Construction Certification and granted the Renewal Application.  Public notice of 
these actions was given on March 16, 2005.26  Palm Beach filed the Petition on April 14, 2005.27
8. In 2006, the Commission held that the Market Settlement Agreement could not be 
implemented because it failed to consider two mutually exclusive applications on the G channel group.28  
The Commission held that “[b]ecause the Marketwide Settlement Agreement contemplated a series of 
interdependent channel switches and transmitter site relocations, the failure of the Marketwide Settlement 
Agreement to resolve the mutual exclusivity on the G channel group renders the agreement defective.”29  
Accordingly, it affirmed the dismissal of the applications filed pursuant to that agreement, including the 
applications filed by Palm Beach and FAU.30
9. At the same time, the Commission held that it would generally use the “splitting the 
football” mechanism to address overlaps between grandfathered EBS stations operating on the E and F 
channel groups and overlapping incumbent BRS stations.31  In the case of service area overlaps greater 
than 50%, however, the Commission established a ninety-day mandatory negotiation period “where both 
the BRS and EBS licensees have an explicit duty to work to accommodate each other’s communications 
requirements.”32 If, at the end of the negotiation period, no agreement was reached, the Commission held 
that the splitting the football mechanism would be used.33  On October 22, 2006, Palm Beach filed the
Extension Request for a ruling that the mandatory negotiation period does not begin to run until its 
Petition is acted on.34  
III. DISCUSSION
A. Petition
10. Palm Beach states that while it “has no real desire to undermine or oppose” the actions 
taken,35 it wishes to preserve its rights in case the Market Settlement Agreement is not approved.36 Palm 
Beach asks that the applications be placed back in pending status for consideration in conjunction with the 
Market Settlement Agreement “or provide some other mechanism to preserve the relative rights of the 
two parties in the event that the pending reconsideration requests and the KHU90 displacement 
  
26 See Wireless Telecommunications Bureau Site-By-Site Action, Report No. 2095, Public Notice (Mar. 16, 2005) at 
9-10.
27 Petition.
28Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and 
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, 
Third Memorandum Opinion and Order and Second Report and Order, WT Docket No. 03-66, 21 FCC Rcd 5606, 
5704 ¶ 237 (2006) (BRS/EBS 3rd MO&O).
29 Id.
30 Id.
31 Id., 21 FCC Rcd at 5749 ¶¶ 347-349.
32 Id., 21 FCC Rcd at 5750 ¶ 350.
33 Id.
34 Extension Request.
35 Petition at 1.
36 Petition at 3-4.
Federal Communications Commission DA 07-288 
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application are not granted.37 WBSWP responds that the actions were not dependent on the grant of the 
Market Settlement Agreement and that Palm Beach has failed to show that the Bureau’s actions were 
erroneous.38
11. Section 1.106(c) of our rules provides that, if a party that has not hitherto participated in a 
proceeding chooses to file a petition for reconsideration, the petition may only be granted if (1) the 
petition relies on events which have occurred or circumstances which have changed since the last 
opportunity to present such matters, (2) the petition relies on facts unknown to the petitioner until after his 
last opportunity to present such matters which could not, through the exercise of ordinary diligence, have 
been learned prior to such opportunity, or (3) consideration of the facts relied on is in the public interest.39  
A petitioner must also show good reason why it was not possible for it to participate in the earlier stages 
of the proceeding.40 We conclude that Palm Beach has not made that showing.  Palm Beach was aware of 
WBSWP’s filings and apparently supported those filings prior to its concern that the Market Settlement 
Agreement might be rejected.41 The Commission’s decision to reject the Market Settlement Agreement 
was a foreseeable event that does not give Palm Beach cause to participate after action has been taken.  
“We cannot allow a party to sit back and hope that a decision will be in its favor and, when it isn't, to 
parry with an offer of more evidence.  No judging process in any branch of government could operate 
efficiently or accurately if such a procedure were allowed.”42 Accordingly, we dismiss the Petition for 
failure to comply with Section 1.106(c) of the Commission’s Rules.
12. If we considered the merits of the Petition, we would find no basis for reversing the 
actions.  Palm Beach does not allege any error in the processing or grant or acceptance of the Extension 
Request, Renewal Application, and Construction Certification, and we find no such error.  To the extent 
Palm Beach objects to the original decision to license Station WMI841, we find that Palm Beach waived 
such objections by supporting the original grant of the Station WMI841 authorization.  Finally, to the 
extent Palm Beach objected to the Commission’s decisions in the rulemaking proceeding, its remedy 
would have been to file a petition for reconsideration in the rulemaking proceeding.  Palm Beach did not 
file such a petition. Accordingly, we find no basis for reversing the grant and/or acceptance of the 
Extension Request, Renewal Application, or Construction Certification.
B. Extension Request
13. Palm Beach contends that the validity of the Station WMI841 license has not been 
resolved.43 Palm Beach argues that it would “be difficult and unproductive for either party to negotiate 
when the respective legal rights of the parties are not clear.”44 Palm Beach also asserts that the parties 
cannot “split the football” because their service areas are identical.45 WBSWP disagrees with Palm 
  
37 Petition at 4.
38 Opposition to Petition for Reconsideration, WBSWP Licensing Corporation (filed Apr. 28, 2005) at 3-5.
39 47 C.F.R. §§ 1.106(b)(2), (c).
40 47 C.F.R. § 1.106(b)(1) states: “If the petition [for reconsideration] is filed by a person who is not a party to the 
proceeding, it … shall show good reason why it was not possible for him to participate in the earlier stages of the 
proceeding.”
41 Petition at 2.
42 Colorado Radio Corp. v. FCC, 118 F.2d 24, 26 (D.C. Cir. 1941).
43 Extension Request at 2.
44 Id.
45 Id. 
Federal Communications Commission DA 07-288 
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Beach’s assertions regarding the validity of the Station WMH841 license but does not object to extending 
the negotiation period.46
14. Palm Beach is correct that the process for applying the “splitting the football” mechanism 
established by the Commission in this case is unclear because both WBSWP and Palm Beach have the 
identical service area.  Splitting the football assumes that the licensees have different but overlapping 
service areas and requires that a line be drawn between the intersection points of the service area.  Here, 
since the service areas are identical, the intersection points are not obvious.  We agree with Palm Beach 
that it is unreasonable to require the parties to conclude a negotiation period without knowing what the 
position of the parties will be in the absence of an agreement.
15. Under these circumstances, we clarify the process by which the parties can determine the 
intersection points to split the service area between Palm Beach and WBSWP if the parties fail to 
negotiate an alternative solution.  This mechanism for establishing the intersection points in any case 
where the parties have identical service areas will provide both parties – as in other “splitting the football” 
cases -- with an equal service area and involves both parties in the creation of those areas.  The process is 
as follows:
· Within ten days of the release of the order, WBSWP shall serve both Palm Beach and the Bureau 
with a proposed division of the service area. WBSWP’s proposed division shall result in the 
creation of two areas equal in size.
· Within ten days after WBSWP serves its proposed division, Palm Beach shall select which of the 
areas created by WBSWP it will choose as its default geographic service area, if the parties do not 
reach an alternative solution.  Palm Beach shall serve its selection on WBSWP and the Bureau.
· The parties will have ninety days after Palm Beach chooses its area to negotiate an alternative 
solution.  We remind WBSWP and Palm Beach that in negotiating, the parties “have an explicit 
duty to work to accommodate each other’s communications requirements.”47  If the parties do not 
negotiate an alternative solution within that ninety-day period, the Bureau will split the service 
areas in the manner defined by the parties under the first part of the process outlined here.
Accordingly, Palm Beach’s request for an extension of the mandatory negotiation period is granted to the 
extent indicated, conditioned on the use of the mechanism established in this Memorandum Opinion and 
Order for establishing the intersection points for “splitting the football”.
IV. CONCLUSION AND ORDERING CLAUSES
16. We dismiss Palm Beach’s Petition as an untimely attempt to seek reconsideration of 
actions that it previously supported.  In any event, Palm Beach has not provided a basis for reversing the 
grant of WBSWP’s applications.  We grant Palm Beach’s request for an extension of the mandatory 
negotiation period, conditioned upon the use of a mechanism to split the service area if the parties are 
unable to negotiate an alternative solution.
17. Accordingly IT IS ORDERED, pursuant to Sections 4(i) and 405 of the Communications 
Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the Commission’s Rules, 47 
  
46 Letter from Robert H. McNamara, Director, Spectrum Management to John J. Schauble, Deputy Chief, 
Broadband Division, Wireless Telecommunications Bureau (Oct. 11, 2006).
47 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5750 ¶ 350.
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C.F.R. §§ 1.106, that the petition for reconsideration filed by the School Board of Palm Beach County on
April 14, 2005 IS DISMISSED.
18. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 
1934, as amended, and Section 27.1216(b) of the Commission’s Rules, 47 C.F.R. § 27.1216(b), that the 
request for extension of the mandatory negotiation period filed by the School Board of Palm Beach 
County on October 22, 2006 IS GRANTED, and the time for WBSWP and Palm Beach to negotiate an 
alternative division of their service area IS EXTENDED until ninety days after Palm Beach makes the 
selection described in Paragraph 20, infra.
19. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 
1934, as amended, and Section 27.1216(b) of the Commission’s Rules, 47 C.F.R. § 27.1216(b), that 
within ten days of the release of this Memorandum Opinion and Order, WBSWP shall serve both Palm 
Beach and the Bureau with a proposed division of the service area.  WBSWP’s proposed division shall 
result in the creation of two areas equal in size.
20. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 
1934, as amended, and Section 27.1216(b) of the Commission’s Rules, 47 C.F.R. § 27.1216(b), that 
within ten days after WBSWP serves its proposed division, Palm Beach shall select which of the areas 
created by WBSWP it will choose as its default geographic service area if the parties do not reach an 
alternative solution.
21. 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
John J. Schauble
Deputy Chief, Broadband Division 
Wireless Telecommunications Bureau