Federal Communications Commission DA 09-867
Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of
DAKOTA CENTRAL 
TELECOMMUNICATIONS COOPERATIVE
FESSENDEN PUBLIC SCHOOL
MIDKOTA PUBLIC SCHOOL
GACKLE/STREETER PUBLIC SCHOOL
WIMBLEDON/COURTENAY PUBLIC 
SCHOOL
JAMESTOWN PUBLIC SCHOOL
PINGREE/BUCHANAN PUBLIC SCHOOL
FESSENDEN-BOWDON PUBLIC SCHOOL
TAPPEN PUBLIC SCHOOL
MEDINA PUBLIC SCHOOL
Request for Partial Waiver of Commission Rules 
Regarding Transition of Broadband Radio Service 
and Educational Broadband Service Stations in the 
Carrington, North Dakota Geographic Service 
Area to the Revised Band Plan
DAKOTA CENTRAL 
TELECOMMUNICATIONS COOPERATIVE
Request for Special Temporary Authority
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File No. 0003004682
MEMORANDUM OPINION AND ORDER
Adopted:  April 17, 2009 Released:  April 17, 2009
By the Associate Chief, Wireless Telecommunications Bureau:
I. INTRODUCTION
1. The Wireless Telecommunications Bureau (WTB or Bureau) has before it a request by Dakota 
Central Telecommunications Cooperative (DCTC), licensee of Broadband Radio Service (BRS) Stations 
Federal Communications Commission DA 09-867 
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WLW751, WLW752, WNTB718, WNTE464, and WNTF478, in the Brush Hill, North Dakota Geographic 
Service Area (GSA) for waiver of Sections 27.1230 – 27.1239 of the Commission’s Rules1 for itself2 and 
its Educational Broadband Service (EBS) lessors.3 DCTC also filed an application seeking special 
temporary authority (STA) to operate on EBS Channels C2, C3, and D3 to provide video programming 
and broadband services to rural customers in and around Brush Hill, North Dakota.4 For the reasons 
discussed below, the Bureau denies the STA Request.  DCTC has demonstrated that a waiver is necessary 
for it to continue serving its video customers as it has since 1991.  We therefore grant DCTC’s Waiver 
Request to the extent indicated herein.5
II. BACKGROUND
2. On July 29, 2004, the Commission released a Report and Order and Further Notice of 
Proposed Rulemaking (BRS/EBS R&O) that transformed the rules and policies governing the licensing of 
services in the 2500-2690 MHz band.6 Prior to the BRS/EBS R&O, the technical rules and band plan for 
the 2500-2690 MHz band were designed primarily to promote wireless cable and educational television 
services, which resulted in licensees receiving interleaved channel groups instead of contiguous channel 
blocks.7 In most areas of the country, however, the deployment of wireless cable was not successful.
  
1 Request for Partial Waiver (filed Apr. 25, 2007) (Waiver Request).  Sections 27.1230-27.1239 of the 
Commission’s rules concern the transition of Broadband Radio Service (BRS) and Educational Broadband Service 
(EBS) to the band plan adopted by the Commission in the BRS/EBS Report and Order.  47 C.F.R. §§ 27.1230-
27.1239.  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, Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 19 FCC Rcd 
14165 (2004) (BRS/EBS R&O and FNPRM as appropriate).
2 DCTC is the licensee of BRS Stations WLW751 (Channels E1-E4), WLW752 (Channels F1-F4), WNTB718 
(Channel H1), WNTE464 (Channel H2), and WNTF478 (Channel H3).
3 DCTC’s lessors are as follows: Station WLX921 (Channel A1/Fessenden Public School); Stations WLX899 and 
WNC543 (Channels B1, G3-4/Midkota Public School); Station WLX959 (Channel A2/Gackle/Streeter Public 
School); Stations WLX902 and WLX909 (Channels B2, C4/Wimbledon/Courtenay Public School); Stations 
WLX942 and WLX439 (Channels A3, G1-2/Jamestown Public School); Stations WLX970 and WLX982 (Channels 
B3, D4/Pingree/Buchanan Public School); Station WLX944 (Channel A4/Fessenden-Bowdon Public School); 
Station WLX901 (Channel B4/Tappen Public School); and Station WLX973 (Channel C1/Medina Public School).  
Unless specifically noted otherwise, we herein refer to the parties collectively as DCTC.    
4 File No. 0003004682 (filed Apr. 24, 2007); see also id., Exhibit 1, Justification for Special Temporary Authority 
(STA Request).   
5 On May 24, 2007, the Broadband Division/WTB released a Public Notice seeking comment on the waiver request.  
Comments were due on June 25, 2007 and replies were due on July  10, 2007.  Wireless Telecommunications 
Bureau Seeks Comment on Request by Dakota Central Telecommunications Cooperative for Waiver of the 
Requirement to Transition to the New BRS/EBS Band Plan and for Special Temporary Authority on Certain EBS 
Channels in Brush Hill, North Dakota, Public Notice, 22 FCC Rcd 9371 (WTB BD 2007).  
6 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, 
Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 19 FCC Rcd 14165 (2004) 
(BRS/EBS R&O and FNPRM as appropriate).
7 In the EBS and BRS services, channels are usually licensed in groups of four.  When EBS was created, EBS 
reception equipment could not receive on adjacent channels without interference.  Thus, the Commission interleaved 
the A block channels with the B block channels, the C block channels with the D block channels, the E block 
channels with the F block channels and the G block channels with the H block channels.  See Amendment of Parts 1, 
(continued....)
Federal Communications Commission DA 09-867 
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3. Consequently, in the BRS/EBS R&O, the Commission developed a new band plan and 
technical rules that permit a range of new and innovative wireless services in the 2500-2690 MHz band 
and give licensees contiguous channel blocks.8 The new band plan consists of two low-power segments, 
the Lower Band Segment (LBS) and the Upper Band Segment (UBS), and a high-power segment, the 
Middle Band Segment (MBS).9 The channel configuration and the technical rules for the LBS and UBS 
are designed to permit a range of wireless services.10 The MBS, in contrast, consists of seven high-power 
channels and is designed for the transmission of video programming, for those licensees that still wish to 
provide such programming.11 The BRS/EBS R&O further established a plan to transition EBS and BRS 
licensees from their interleaved channel locations to their new channel locations in the LBS, UBS, or 
MBS.12 Not all licensees, however, are required to transition to the new band plan and technical rules.  
The BRS/EBS R&O permitted a limited number of Multichannel Video Programming Distributors 
(MVPDs) to seek a waiver from the Commission to “opt-out” of the transition, thus permitting them to 
continue their high-power, high-site operations throughout the entire 2500-2690 MHz band.13 On April 
27, 2006, the Commission released the Third Memorandum Opinion and Order and Second Report and 
Order (3rd MO&O), in which it affirmed its decision to consider these waivers on a case-by-case basis.14
4. DCTC is a rural telecommunications cooperative formed in 1952 to bring local exchange 
services to rural communities in central North Dakota.15 DCTC established a wireless cable television 
system at Brush Hill, North Dakota in 1991 and assembled rights to 17 of the BRS and EBS channels in 
the Brush Hill GSA.16 DCTC’s service includes five local channels that many customers cannot receive 
over the air.17 DCTC charges $10.00/month for the five local channels, $24.50/month for its 17 channel 
package, and $10.00/month for HBO.18 DCTC provides multi-channel video programming to 
approximately 585 subscribers.19  
  
(...continued from previous page)
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, Notice of Proposed 
Rulemaking and Memorandum Opinion and Order, WT Docket No. 03-66, 18 FCC Rcd 6722, 6744 ¶ 47 (2003) 
(NPRM).
8 See BRS/EBS R&O, 19 FCC Rcd at 14168 ¶ 4.
9 Id. at 14169 ¶ 6.
10 Id. at 14168 ¶ 4.
11 Id. at 14185-14186 ¶ 4.
12 Id. at 14197-14198 ¶ 72.
13 Id. at 14199-14200 ¶ 77.
14 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, 
Third Memorandum Opinion and Order and Second Report and Order, WT Docket No. 03-66, 21 FCC Rcd 5606, 
5645 ¶ 72 (2006) (BRS/EBS 3rd MO&O).  In the 3rd MO&O, the Commission also granted WATCH TV’s request 
to opt-out of the transition of the 2.5 GHz band in Lima, Ohio.  Id. at 5649-5650 ¶¶ 82-84.
15 Waiver Request at 3.
16 Waiver Request at 3.  
17 Waiver Request at 3.
18 Waiver Request at 3.
19 Waiver Request at 3.
Federal Communications Commission DA 09-867 
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5. In 2001, DCTC began offering a high-power, high-speed broadband service using EBS 
channels C3 and D3, which were not licensed anywhere within the Brush Hill GSA.20 DCTC claims that it 
was “unaware” that it was not authorized to use those channels.21 DCTC currently provides broadband 
service to approximately 265 subscribers.22 Since 1991, DCTC has invested more than $1.5 million to 
design, construct and operate its wireless MVPD and wireless broadband systems.23
6. On April 24, 2007, DCTC filed a request for an STA to utilize vacant EBS channels C2, C3 
and D3 within a 35-mile GSA centered on the coordinates N. Lat. 47-13-41.0 and W. Long. 99-12-02.0 to 
provide MVPD and broadband services from a transmit site located in Brush Hill, North Dakota.24 The 
STA is requested for an initial period of six months so that DCTC will be able to continue to provide 
MVPD and broadband service to its customers until the Brush Hills, North Dakota GSA transition is 
completed and the existing services on the unlicensed spectrum can be migrated to authorized spectrum.25
7. DCTC asks on behalf of itself and lessors to partially “opt-out” of the transition of the 2500 -
2690 MHz band in the Brush Hill, North Dakota GSA, and seeks a waiver of Section 27.1230-27.1239 of 
the Commission’s rules for itself and its lessors.26 Specifically, DCTC proposes to replace a point-to-point 
distance learning network used by DCTC’s EBS lessors with a T-1 based landline service.27 Seven of the 
nine schools would either submit their licenses for cancellation or lease their excess capacity to a 
commercial operator.28 The other two schools would move their distance learning system to channels A4 
and B4 in the MBS.29 DCTC would move its services to the MBS and UBS, and would leave the LBS 
available for other services.30 DCTC does not anticipate being the transition proponent in its area, but it 
agrees to cooperate with the proponent.31 DCTC requests that the waiver state that:  
(1) DCTC and its channel lessors will have permanent authority to operate within the 
Brush Hill GSA pursuant to Section 27.1209 on the “pre-transition” BRS/EBS band plan 
set forth in Section 27.5(i)(2)(ii) and (iii);
(2) The Licensees and DCTC’s channel lessors must participate in good faith in any 
transition planning process relating to any geographic area that overlaps their GSAs.  In 
conjunction with any transition, the Licensees and DCTC’s channel lessors will 
subsequently make such modifications to their facilities at the proponent’s expense 
(unless otherwise agreed) as the proponent may reasonably request in an effort to reduce 
interference to licensees in other markets that are transitioning, provided that such 
  
20 Waiver Request at 3.
21 Waiver Request at 4.
22 Waiver Request at 4.
23 Waiver Request at 4. 
24 STA Request at 1.
25 STA Request at 1.
26 Waiver Request at 1.
27 Waiver Request at 5.
28 Waiver Request at 6.
29 Waiver Request at 6.
30 Waiver Request at 6.
31 Waiver Request at 6.
Federal Communications Commission DA 09-867 
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modifications can be accomplished without cumulatively resulting in more than a de 
minimis reduction in DCTC’s ability to serve its then-existing subscribers;
(3) Every main, booster, and base station currently used in conjunction with the 
Licensees’ systems shall be permitted to continue operating under the maximum EIRP 
limits set forth for “pre-transition” operations in Section 27.50(h)(1)(i) and (ii) until such 
time as the EBS licensees’ facilities are migrated to an alternative system and after such 
time, every main, booster, and base station currently used in conjunction with DCTC’s 
system shall be permitted to continue operating under the maximum EIRP limits set forth 
for “pre-transition” operations in Sections 27.50(h)(1)(i) and (ii) on the “post-transition” 
BRS/EBS band plan set forth in Sections 27.5(i)(2)(ii) and (iii);
(4) Any channels used for the transmission of digital video programming on DCTC’s 
system shall be permitted to continue operating under the “pre-transition” emission limits 
for digital video programming channels set forth in Section 27.53(l)(3); 32
(5) Consistent with Section 27.55(a)(4)(i), all of the BRS and EBS channels in DCTC’s 
Brush Hill system will be permitted to operate at any point along their respective GSA 
boundaries at the greater signal strength of 47 dBu or the strength authorized in their 
underlying licenses as of January 10, 2005; 
(6) Sections 27.1220 (regarding 5.5 MHz wide channels in the UBS) and 27.1222 
(regarding the establishment of guard bands around the MBS) shall not be applicable to 
DCTC and its channel lessors operating on the “post transition” BRS/EBS band plan set 
forth in Sections 27.5(i)(2)(ii) and (iii); and
(7) DCTC and its channel lessors shall not be subject to the height benchmarking obligations set 
forth in Section 27.1221.33
DCTC contends that their acceptance of these conditions confirms that they will participate in good faith in 
any transition planning process and will make reasonable modifications to their facilities “to reduce 
interference and rationalize spectrum use, so long as those modifications do not result in more than a de 
minimis reduction in DCTC’s ability to serve is then-existing subscribers.”34
8. DCTC also proposes the following additional conditions relating to the EBS licenses:35
(1) Upon replacement of their existing point-to-point EBS facilities, the 
licensees of two of the EBS point-to-point stations will, consistent with 
the spectrum plan depicted in Appendix C, swap or assign (subject to 
Commission approval) the licenses so that they are licensed on channels 
A4 and B4 as designated by the “post-transition” BRS/EBS band plan set 
forth in Section 27.5(i)(2)(ii); 
  
32 In fact, because DCTC is operating an analog video system, the applicable rule is 47 C.F.R. § 27.53(l)(1), which 
sets forth the pre-transition out-of-band emission limits for analog video systems.
33 Waiver Request at 18-19.
34 Waiver Request at 19.  
35 Waiver Request at 19.
Federal Communications Commission DA 09-867 
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(2) Upon replacement of their existing point-to-point EBS facilities, the 
licensees of the remaining seven EBS point-to-point stations will make 
available their channels for excess capacity lease at nominal 
consideration to the holder of the BTA authorization where their licensed 
GSA centerpoint is situated.  If the holder of the BTA authorization  does 
not desire to lease any or all of the excess capacity of such stations, such 
licensees will submit their authorizations for cancellation; and  
(3) The two EBS licensees that migrate to MBS channels A4 and B4 will 
apply to the Commission to conform their GSAs to the GSA of the 
channels that compose DCTC’s MVPD system, and will request waiver 
of the Commission’s rules to the extent necessary.
9. Approximately 410 DCTC subscribers submitted form letters supporting the STA Request and 
Waiver Request.36 On June 25, 2007, the National Telecommunications Cooperative Association (NTCA) 
filed comments in support of DCTC’s Waiver Request.37 Also on June 25, 2007, Clearwire Corporation 
(Clearwire)38 filed an opposition to the Waiver Request.  Clearwire opposes the Waiver Request and the 
STA Request.  Clearwire argues that DCTC has failed to explain why the services it offers cannot be 
accommodated under the post-transition band plan.39 In addition, Clearwire contends that DCTC has also 
failed to demonstrate that compliance with the transitional rules would be unduly burdensome or contrary 
to the public interest.40 Clearwire  asserts that grant of the Waiver Request will hinder Clearwire’s ability 
to provide competitive broadband service in areas affected by the waiver and will also cause interference 
to Clearwire’s operations in adjacent areas.41 Clearwire also argues that granting the waiver will 
negatively impact Clearwire’s ability to transition the surrounding market area.42 Clearwire specifically 
objects to a waiver that would permit DCTC to: (1) operate under the maximum EIRP limits set forth for 
“pre-transition” operations;43 (2) operate under the pre-transition emission limits;44 (3) operate with field 
strengths along adjacent services area boundaries at the greater signal strength of 47 dBu or the strength 
authorized in underlying licenses as of January 10, 2005;45 and (4) disregard the height benchmarking 
obligations set forth in Section 27.1221 of the Commission’s Rules.46 Moreover, Clearwire urges that any 
waiver granted to DCTC expire no later than December 31, 2008 so that the Commission can reevaulate 
  
36 See Letter from Stephen E. Coran, Esq. to Marlene H. Dortch, Secretary, Federal Communications Commission 
(filed Jun. 25, 2007) and accompanying letters.
37 Comments of the National Telecommunications Cooperative Association (NTCA) (filed Jun. 25, 2007).
38 Clearwire Corporation, Opposition to and Comments on Request for Waiver (filed June 25, 2007) (Clearwire 
Opposition).
39 See, e.g., Clearwire Opposition at 4-7.  
40 See, e.g., Clearwire Opposition at 4-5.  For example, Clearwire notes that DCTC is intending to migrate its 
distance learning services to wireline based facilities.  See id. at 5.  
41 Clearwire Opposition at 6-7.
42 Clearwire Opposition at 7.
43 See 47 C.F.R. § 27.50(h)(1)(i), (ii).
44 See 47 C.F.R. § 27.53(1)(3).
45 See 47 C.F.R. § 27.55(a)(4)(i).
46 47 C.F.R. § 27.1221.
Federal Communications Commission DA 09-867 
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such waiver in light of advances in technology.47 In addition, Clearwire strongly opposes extending any 
relief to DCTC for its unauthorized operations on channels that DCTC was not and could not have been 
authorized to use pursuant to the Commission’s Rules.48
10. Also on June 25, 2007, Clearwire, Sprint Nextel Corporation (Sprint Nextel), Xanadoo, LLC 
(Xanadoo), and NextWave Wireless, Inc. (NextWave) filed comments49 addressed to the eleven opt-out 
waiver requests on which the Bureau had sought comment.50 On July 10, 2007, the National ITFS 
Association (NIA) and the Catholic Television Network (CTN) filed comments addressed to the eleven 
opt-out waiver requests on which the Bureau had sought comment.51 Also on July 10, 2007, DCTC, C&W 
Enterprises, Inc. (C&W), Central Texas Communications, Inc. (CTC), Choice Communications LLC 
(Choice), CNI Wireless, Inc. (CNI), Northwest Communications Cooperative (NCC), Evertek, Inc. 
(Evertek), Northern Wireless Communications Inc. (Northern), RC Technologies Corporation (RC 
Technologies), Starcom, Inc. (Starcom), and United Telephone Mutual Aid Corporation (United) 
  
47 Clearwire Opposition at 9.
48 See Clearwire Opposition at 5.
49 Letter from Terri B. Natoli, Vice President, Regulatory Affairs & Public Policy, Clearwire Corporation, Trey 
Hanbury, Director Spectrum Proceedings, Sprint Nextel Corporation, Cheryl Crate, Vice President, Government and 
Public Relations, Xanadoo, LLC, and Jennifer M. McCarthy, Vice President, Regulatory Affairs, NextWave 
Wireless, Inc. to Marlene H. Dortch, Secretary, Federal Communications Commission (dated Jun. 25, 2007) (Joint 
Comments).
50 On June 25, 2007, the Commission had pending before it opt-out waiver requests from DCTC; C&W Enterprises, 
Inc.; Central Texas Communications, Inc.; Choice Communications LLC; CNI Wireless, Inc.; Northwest 
Communications Cooperative; Evertek, Inc.; Northern Wireless Communications Inc.; RC Technologies 
Corporation; Starcom, Inc.; and United Telephone Mutual Aid Corporation.  See Wireless Telecommunications 
Bureau Seeks Comment on Request by Dakota Central Telecommunications Cooperative et al for Waiver of the 
Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9371 (WTB BD 2007);  
Wireless Telecommunications Bureau Seeks Comment on Request by C&W Enterprises, Inc. for Waiver of the 
Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9410 (WTB BD 2007);  
Wireless Telecommunications Bureau Seeks Comment on Request by Central Texas Communications, Inc. for 
Waiver of the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9414 (WTB 
BD 2007); Wireless Telecommunications Bureau Seeks Comment on Request by Choice Communications LLC for 
Waiver of the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9357 (WTB 
BD 2007); Wireless Telecommunications Bureau Seeks Comment on Request by CNI Wireless, Inc. for Waiver of 
the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9368 (WTB BD 2007);   
Wireless Telecommunications Bureau Seeks Comment on Request by Northwest Communications Cooperative for 
Waiver of the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice,  22 FCC Rcd 9378 (WTB 
BD 2007); Wireless Telecommunications Bureau Seeks Comment on Request by Evertek, Inc. for Waiver of the 
Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9361 (WTB BD 2007);   
Wireless Telecommunications Bureau Seeks Comment on Request by Northern Wireless Communications Inc. for 
Waiver of the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9394 (WTB 
BD 2007); Wireless Telecommunications Bureau Seeks Comment on Request by RC Technologies Corporation for 
Waiver of the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9364 (WTB 
BD 2007); Wireless Telecommunications Bureau Seeks Comment on Request by Starcom, Inc. for Waiver of the 
Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9401 (WTB BD 2007); 
Wireless Telecommunications Bureau Seeks Comment on Request by United Telephone Mutual Aid Corporation 
for Waiver of the Requirement to Transition to the New BRS/EBS Band Plan, Public Notice, 22 FCC Rcd 9404 
(WTB BD 2007).  
51 Letter from Todd D. Gray, National ITFS Association and Edwin N. Lavergne, Catholic Television Network to 
Marlene H. Dortch, Secretary, Federal Communications Commission (filed Jul. 10, 2007) (CTN/NIA Letter).
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(collectively, Waiver Proponents) filed a letter in reply to the Joint Commenters.52 In addition to 
participating in the Joint Reply Comments, NCC filed its individual reply comments on July 10, 2007.53  
On July 17, 2007, DCTC, C&W, CTC, Choice, NCC, Evertek, Northern, RC Technologies, Starcom, and 
United responded to the comments filed by CTN and NIA.54 On July 19, 2007, Clearwire, Sprint Nextel, 
Xanadoo, and NextWave, Inc. filed comments in response to the Joint Reply.55 On July 25, 2007, NCC, 
CTC, Dakota Central, Evertek, Northern, RC Technologies, Starcom, and United responded to the Second 
Joint Comments.56
11. The Joint Commenters, along with CTN and NIA, oppose the grant of permanent, 
unconditioned opt-out waivers of the transition rules going forward.57 The Joint Commenters argue that 
the permanent opt-out waiver requests granted to date have foreclosed the ability of 2.5 GHz licensees and 
consumers in service areas covered by opt-out grants to benefit from changes in technology that may 
enable transition while still accommodating MVPD operator needs.  They request that any opt-out waiver 
requests deemed meritorious should only be granted a waiver limited in time to no later than December 31, 
2008.58 The Joint Commenters also argue that any waiver should be conditioned upon compliance with 
existing Part 27 operational and technical rules.59 The National ITFS Association and the Catholic 
Television Network support the position of the Joint Commenters.60 The Waiver Proponents argue that the 
Joint Commenters are attempting to contravene the Commission’s repeated and consistent determinations 
that waivers of the BRS/EBS band plan transition rules should be considered on a case-by-case basis in 
  
52 Letter from Stephen E. Coran, Counsel to RC Technologies Corporation, Dakota Central Telecommunications 
Cooperative, Northern Wireless Communications Inc., Starcom, Inc., and United Telephone Mutual Aid 
Corporation, Paul J. Sinderbrand, Counsel to CNI Wireless, Inc., Cheryl A. Tritt, Counsel to Choice 
Communications LLC, Donald L. Herman, Jr., Counsel to Central Texas Communications, Inc., David L. Nace, 
Counsel to Evertek, Inc. and NCC, and Suzanne S. Goodwyn, Counsel to C&W Enterprises, Inc. to Marlene H. 
Dortch, Secretary, Federal Communications Commission (dated Jul. 10, 2007) (Joint Reply Comments).
53 Reply Comments (filed Jul. 10, 2007). 
54 Letter from Stephen E. Coran, Counsel to RC Technologies Corporation, Dakota Central Telecommunications 
Cooperative, Northern Wireless Communications Inc., Starcom, Inc., and United Telephone Mutual Aid 
Corporation, Cheryl A. Tritt, Counsel to Choice Communications LLC, Donald L. Herman, Jr., Counsel to Central 
Texas Communications, Inc., David L. Nace, Counsel to Evertek, Inc. and NCC, and Suzanne S. Goodwyn, Counsel 
to C&W Enterprises, Inc. to Marlene H. Dortch, Secretary, Federal Communications Commission (dated Jul. 17, 
2007) (Second Joint Reply Comments).
55 Letter from Terri B. Natoli, Vice President, Regulatory Affairs & Public Policy, Clearwire Corporation, Trey 
Hanbury, Director Spectrum Proceedings, Sprint Nextel Corporation, Cheryl Crate, Vice President, Government and 
Public Relations, Xanadoo, LLC, and Jennifer M. McCarthy, Vice President, Regulatory Affairs, NextWave 
Wireless, Inc. to Marlene H. Dortch, Secretary, Federal Communications Commission (dated Jul. 19, 2007) (Second 
Joint Comments).
56 Letter from Stephen E. Coran, Counsel to RC Technologies Corporation, Dakota Central Telecommunications 
Cooperative, Northern Wireless Communications Inc., Starcom, Inc., and United Telephone Mutual Aid 
Corporation, Donald L. Herman, Jr., Counsel to Central Texas Communications, Inc., and David L. Nace, Counsel 
to Evertek, Inc. and NCC to Marlene H. Dortch, Secretary, Federal Communications Commission (dated Jul. 25, 
2007) (Third Joint Reply Comments).
57 Joint Comments at 3.
58 Id. at 3.
59 Id. at 3-4.
60 CTN/NIA Letter.
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light of the facts and circumstances of the particular waiver requests.61 The Joint Commenters respond that 
applying a time limitation to any waivers granted would be entirely consistent with the Commission’s prior 
determination that it would follow a case-by-case approach, because it could revisit and extend any 
waivers if subsequent conditions were to justify doing so.62
12. In a separate reply to Clearwire, DCTC argues that Clearwire’s interference claims are not 
supported by any reliable documentation.63 DCTC also asserts that there is a public need for continuation 
of the MVPD and wireless broadband services it provides in the Brush Hill, North Dakota GSA.64  
III. DISCUSSION
A. STA Request
13. Pursuant to Section 1.931(a)(1) of the Commission’s Rules, applicants may request special 
temporary authority (STA) in circumstances requiring immediate or temporary use of a station in the 
wireless telecommunications services to operate new or modified equipment.65 STA requests must be filed 
prior to the proposed date of operations.66  
14. We disagree with DCTC that grant of an STA is appropriate in this instance.  DCTC has been 
transmitting video programming on EBS channel C2 since approximately 1994 and providing broadband 
services on EBS channels C3 and D3 since 2001 without authorization.67  Section 301 of the 
Communications Act of 1934, as amended,68 and Section 1.903(a) of the Rules69 prohibit the use or 
operation of any apparatus for the transmission of energy or communications or signals by a wireless radio 
station except under, and in accordance with, a Commission granted authorization.  DCTC failed to file the 
instant STA Request or any request prior to the operation of services on EBS Channels C2, C3, and D3 
and has been operating without authority on EBS Channel C2 for approximately 13 years and on EBS 
Channels C3 and D3 for approximately six years.       
15. Moreover, DCTC fails to satisfy the criteria for granting an STA.  Although DCTC cites to the 
lack of competition in video programming and the general need for broadband services in the rural areas 
within the Brush Hill BTA,70 we find such justifications do not qualify as “circumstances which are of 
such extraordinary nature that delay in the institution of temporary operation would seriously prejudice the 
  
61 Joint Reply Comments at 2-3, citing BRS/EBS R&O, 19 FCC Rcd at 14199¶ 76, and BRS/EBS 3rd MO&O, 21 
FCC Rcd at 5645-5646 ¶¶ 72-73.
62 Second Joint Comments at 3.
63 Reply Comments of Dakota Central Telecommunications Cooperative (filed Jul. 10, 2007) at 7-8 (DCTC Reply).
64 DCTC Reply at 11-12.
65 47 C.F.R. § 1.931(a)(1).  
66 See 47 C.F.R. § 1.931(a)(1).  
67 See STA Request at 1-3. 
68 47 U.S.C. § 301.
69 47 C.F.R. § 1.903(a).
70 See, e.g., STA Request at 3.  DCTC cites to a number of cases that do not involve STA requests, including 
instances where the Commission has waived the application filing freeze.  See, e.g., STA Request at 7-9.  We find 
such cases inapplicable to the instant matter.  
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public interest.”71 Rather, the circumstances described by DCTC are circumstances which, as DCTC itself 
notes, generally describe the rural community in central North Dakota.72 Such circumstances, which face 
other rural communities as well, are more appropriately addressed through the Commission’s application 
or, if necessary, rulemaking processes.  Furthermore, DCTC is not eligible to hold spectrum in the EBS, 
where eligibility is limited to educational institutions and qualified non-profit educational organizations.73  
We find that the public interest would not be served by rewarding DCTC for operating without authority 
on frequencies that it was not eligible to hold and thereby inviting other parties to act in a similar manner.  
Accordingly, we deny the STA Request.  Since DCTC has no authorization to operate its broadband 
system, we will deny the Waiver Request with respect to its broadband system.
B. Waiver Request
16. In the BRS/EBS R&O, the Commission found that it is in the public interest to consider 
waivers of the rules requiring licensees to transition to the new band plan and to comply with the new 
technical rules.74 Specifically, the Commission found that it is in the public interest to consider waivers on 
a case-by-case basis for those operators or their affiliates that meet the definition of a multichannel video 
programming distributor in Section 522 of the Communications Act of 1934, as amended, and that provide 
MVPD service to five percent or more of the households within their respective geographic service areas 
(GSAs).75 The Commission further found that it is in the public interest to consider waivers for any BRS 
or EBS licensee that is co-located with any qualified MVPD licensee that elects to opt-out.76 In addition, 
the Commission found that it is in the public interest to consider waivers for those BRS licensees that have 
a viable business for high-powered operations, but who need more than seven digitized high-powered 
MBS channels to deliver their service to their customers.77  
17. The Commission stated that, in reviewing requests to waive the rules, it would consider the 
actions taken by MVPD or BRS licensees to minimize the effect of interference on neighboring markets, 
as well as the licensee’s explanation as to why it cannot work within the transition rules adopted by the 
Commission.78 The Commission stated that waivers will be granted if it is shown that: (i) the underlying 
purpose of the rules(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; or (ii) in view of the 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.79 DCTC has 
not attempted to demonstrate that it satisfies either of the specific bases for waiver established in the 
  
71 See 47 C.F.R. § 1.931(a)(2)(iv); see also STA Request at 3.
72 See STA Request at 3-8.  
73 See 47 C.F.R. § 27.1201(a).
74 BRS/EBS R&O, 19 FCC Rcd at 14199 ¶ 77.
75 BRS/EBS R&O, 19 FCC Rcd at 14199 ¶ 77.  This calculation is made in accordance with the requirements of 47 
C.F.R. § 76.905(c).
76 BRS/EBS R&O, 19 FCC Rcd at 14199 ¶ 77.
77 Id.
78 Id.
79 Id. at 14199-14200 ¶ 77; 47 C.F.R. § 1.925(b)(3).
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BRS/EBS R&O.  We therefore consider DCTC’s request under the general waiver standard contained in 
Section 1.925 of the Commission’s Rules.80
18. At the outset, we agree with the Joint Commenters that opt-out waiver requests should be 
closely scrutinized to determine what effect such waivers would have on the ability of nearby operators to 
provide service.  With the exception of Clearwire, however, none of the Joint Commenters has alleged that 
it would be harmed if DCTC is granted a waiver.  Furthermore, the proposals to terminate any waivers at 
the end of 2008 and to require compliance with the post-transition technical rules are made without 
individual analyses of DCTC’s situation.  Neither Clearwire nor the Joint Commenters have established 
that December 31, 2008 is an appropriate date with respect to DCTC, nor do they attempt to show that 
DCTC could operate its video system under the post-transition rules.81 Furthermore, we agree with DCTC 
and the other Waiver Proponents that arbitrarily establishing December 31, 2008 as the outer deadline for 
any waiver would be inconsistent with the Commission’s decision to evaluate waiver requests on a case-
by-case basis.  Clearwire and the Joint Commenters’ suggestion that a waiver could be renewed after the 
end of 2008 if circumstances supported an extension at that time would fail to provide DCTC with the 
certainty it needs to conduct its operations.  Thus, we deny all requests to place a time limitation on any 
waiver granted to DCTC and proceed with an individual analysis of the merits of the instant Waiver 
Request.
19. DCTC has shown that, in view of its unusual circumstances, requiring it to transition to the 
new band plan and technical rules would be inequitable, unduly burdensome, and contrary to the public 
interest.  First, DCTC has shown that it has developed a viable MVPD business.  DCTC has provided 
declarations from Keith Larson, General Manager of DCTC, and from Kathy McCracken, Director of 
DCTC, attesting to the facts contained in the Waiver Request.82 In light of the detailed information 
presented by DCTC, the Commission finds that DCTC has developed a viable business.  
20. We also conclude that granting DCTC a waiver to continue its authorized operations would 
serve the public interest.  DCTC, which was founded in 1952, has provided MVPD service to rural 
subscribers in central North Dakota for more than 17 years.  According to DCTC, it is the only terrestrial 
MVPD service provider in most areas and is the only competitor to DBS services.83 DCTC also states that 
it provides five local channels that for many consumers in the GSA cannot be received using off-air 
antennas and are not provided by the Direct Broadcast Satellite or cable operators.84 In addition, DCTC 
asserts that compliance with the Commission’s transition rules would end its ability to provide consumers 
with MVPD services, and the cost of rebuilding its system would not be feasible.85 These factors 
demonstrate that DCTC provides an important service to the consumers in the Brush Hill community, and 
that it would be forced to shut down if it is not granted a waiver.  In contrast, Clearwire has not provided 
any meaningful information about the areas where it plans to provide service or the time frame within 
which such service will be established.  Consequently, we find that on balance, the public interest favors 
granting DCTC a waiver request with respect to those frequencies it is currently authorized to operate.
  
80 47 C.F.R. § 1.925.
81 See, e.g., DCTC Reply at 11-12.
82 Waiver Request, Appendix A.
83 Waiver Request at 4. 
84 Waiver Request at 4, 9.   
85 Waiver Request at 9-10.
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21. We find that the conditions that DCTC asks to be placed on its waiver request are more than it 
requires to continue its current operations.  With regard to DCTC’s EIRP limits, we note that Section 
27.50(h)(1)(i) and (ii), the pre-transition emission limits are 33 dBW.  DCTC indicates that it currently 
operates at 26.2 dBW at a center radiation of approximately 493 feet above ground level (AGL), that it 
does not plan any upgrades that would increase the EIRP, and that it commits to maintaining its current 
facilities.86 In light of this information, we will condition DCTC’s waiver on operating at a maximum 
EIRP of 26.2 dBW.  
22. With regard to DCTC’s field strength limits, DCTC indicates that it does not generally exceed 
the 47 dB µV/m87 limit at any point beyond its GSA contiguous with Clearwire’s territory with the 
exception of a few hilltops covering no more than 20 square miles.88 Under Section 27.55(a)(4) of our 
Rules, licensees may exceed the 47 dB µV/m signal level where there is no affected party providing 
service.89 Because Clearwire is not constructed and providing service, and because Clearwire has not 
shown that it would be harmed by allowing DCTC to maintain its current operations, we will grant DCTC 
a limited waiver of Section 27.55(a)(4) of the Commission’s Rules to maintain its current operations.  
23. We also agree with DCTC’s indication that it can comply with Section 27.1221 of the 
Commission’s Rules, the height benchmarking rule.90 Accordingly, we conclude that it is unnecessary to 
grant DCTC a waiver of that rule.  Clearwire’s contentions regarding potential interference into its 
operations in adjacent areas stem from its line of sight analysis, and assume a base station antenna height 
of 150 feet AGL.91 DCTC’s analysis correctly notes that Clearwire’s base stations would have to comply 
with the height benchmarking rule with respect to DCTC’s existing transmitter.  Because that requirement 
limits Clearwire’s ability to place base stations near the boundary of its GSA, DCTC estimates that the 
area where Clearwire could place a base station consistent with the height benchmarking rule would 
constitute only about a 130 square mile area with a population of only 110 households.92 Furthermore, the 
height benchmarking rule does not restrict the heights of antennas per se.93 Instead, it limits the signal that 
a noncompliant transmitting antenna can place at a base station receive antenna that complies with the 
height benchmark.94 Given that DCTC operates with less than the maximum allowable power (26.2 
dBW), and considering the distance from DCTC’s transmitter to the edge of its GSA, it appears that DCTC 
could maintain its existing service while providing the appropriate protection to any Clearwire base station 
that meets the height benchmark.  Accordingly, we will not grant DCTC a waiver of Section 27.1221 of 
  
86 DCTC Reply, Engineering Statement of John Dalager, P.E. (Dalager Statement) at 2.
87 In the BRS/EBS 4th MO&O, the Commission corrected an error in Section 27.55(a)(4)(i) of the Commission’s 
rules changing the reference from 47 dB[mµ]V/m to 47 dBµV/m.  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, Fourth Memorandum Opinion and Order and 
Second Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 23 FCC Rcd 5992, 6023 ¶ 84 (2008).
88 Dalager Statement at 2.
89 47 C.F.R. § 27.55(a)(4).
90 DCTC Reply at 5.
91 Clearwire Opposition, Engineering Statement of George W. Harter, at 1.
92 Dalager Statement at 1-2.
93 47 C.F.R. § 27.1221(a).
94 47 C.F.R. § 27.1221(c).
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the Commission’s Rules because it has not shown that a waiver is necessary to continue its operations.  In 
the absence of a waiver, Clearwire cannot show any harm to its ability to provide service.95  
24. With respect to potential aggregate harm resulting from the collective grant of pending 
opt-out waiver requests, we conclude that our grant of opt-out waivers will not, separately or in the 
aggregate, result in any meaningful harm to Sprint, Clearwire, or other entities that wish to provide 
advanced broadband services in the 2.5 GHz band.  A total of fifteen MVPD opt-out waiver requests have 
been filed.  Those systems collectively serve fewer than 50,000 subscribers and cover only approximately 
160 out of 5,289 active BRS and EBS licenses.  Given the largely rural locations for which waivers have 
been sought, and our conclusions that the waivers we have granted to date will have relatively minimal 
impact on nearby licensees, we believe our decisions will not adversely impact licensees who wish to use 
this band for low-power, cellularized broadband services, even if all of the waivers were ultimately 
granted.  If the licensees requesting opt-out waivers had chosen instead to provide low-power cellularized 
services, nearby licensees would still have been required to protect the service areas of the opting-out 
licensees.  Finally, since the deadline for filing opt-out waiver requests has expired,96 licensees who wish 
to offer low-power, cellularized broadband services can now plan with certainty knowing that no other 
such requests will be entertained.
25. Therefore, we grant DCTC’s waiver request to the following extent with the following 
conditions:
· DCTC and its channel lessors will have permanent authority to operate in the UBS within the 
Brush Hill GSA pursuant to Section 27.1209 on the “pre-transition” BRS/EBS band plan set forth 
in Section 27.5(i)(1);
· DCTC must participate in good faith in any transition planning process relating to any geographic 
area that overlaps its GSAs.  In conjunction with any transition, DCTC will subsequently make 
such modifications to its facilities at the proponent’s expense (unless otherwise agreed) as the 
proponent may reasonably request in an effort to reduce interference to licensees in other markets 
that are transitioning, provided that such modifications can be accomplished without cumulatively 
resulting in more than a de minimis reduction in DCTC’s ability to serve its then-existing 
subscribers;
· Every main, booster, and base station currently used in conjunction with DCTC’s system shall be 
permitted to continue operating with the EIRP as operated on April 25, 2007;
· Any channel used for the transmission of digital video programming on DCTC’s system shall be 
permitted to continue operating under the “pre-transition” emission limits for analog video 
programming channels set forth in Section 27.53(l)(1);
· Sections 27.1220 (regarding the 5.5 MHz wide channels in the UBS) and 27.1222 of the 
Commission’s Rules (regarding the establishment of guardbands around the MBS) shall not be 
applicable to DCTC and its channel lessors.
  
95 While Clearwire also objects to allowing DCTC to operate pursuant to the pre-transition out-of-band emission 
limitations (Clearwire Opposition at 4), Clearwire has not shown how it can be harmed by such a waiver because it 
does not allege it has any adjacent channel operations within the Brush Hill, North Dakota GSA.
96 See 47 C.F.R. § 27.1231(g) (establishing April 30, 2007 deadline).
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· Section 27.55(a)(4)(i) of the Commission’s Rules is waived to allow DCTC and its channel 
lessors to continue their current operations within the Brush Hill Geographic Service Area.
IV. CONCLUSION AND ORDERING CLAUSES
26. DCTC has failed to demonstrate that an STA is appropriate or warranted to cover its 
unauthorized operation.  With respect to its MVPD operations, DCTC has justified a waiver by 
demonstrating that it has a viable business for high-powered operations and that it needs more than seven 
digitized high-powered MBS channels to deliver its service to its customers.  The Commission also 
concludes that requiring DCTC to transition to the new band plan would be inequitable, unduly 
burdensome and contrary to the public interest because it would be required to discontinue its existing 
service to customers.    
27. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i) of the Communications Act of 
1934, as amended, 47 U.S.C. §§ 154(i), and Section 1.931 of the Commission’s Rules, 47 C.F.R. § 1.931, 
that the Request for Special Temporary Authority, File No. 0003004682, filed by Dakota Central 
Telecommunications Cooperative on April 24, 2007 IS DENIED. 
28. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, 47 
U.S.C. § 154(i), and Sections 1.925 and 27.1231(g) of the Commission’s Rules, 47 C.F.R. §§ 1.925, 
27.1231(g),  that the Request for Waiver filed by Dakota Central Telecommunications Cooperative on 
April 25, 2007 IS GRANTED to the extent indicated and is otherwise DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Jane E. Jackson
Associate Chief, Wireless Telecommunications Bureau