Federal Communications Commission DA 10-1378 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Requests of Ten Licensees of 191 Licenses in the Multichannel Video and Data Distribution Service for Waiver of the Five-Year Deadline for Providing Substantial Service ) ) ) ) ) ) File Nos. 0003516339 et al. ORDER Adopted: July 27, 2010 Released: July 28, 2010 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we grant the requests of ten Multichannel Video and Data Distribution Service (MVDDS) licensees (Licensees) for waiver and extension of the five-year buildout deadlines for a total of 191 MVDDS licenses.1 This will allow additional time for the development of MVDDS equipment for the provision of innovative wireless services, including broadband. II. BACKGROUND 2. MVDDS is a fixed wireless terrestrial service at 12.2-12.7 GHz that may be used for any digital fixed non-broadcast service, including one-way direct-to-home/office wireless service.2 MVDDS is authorized on a co-primary, non-harmful interference basis with incumbent Direct Satellite Services (DBS) providers and on a co-primary basis with non-geostationary satellite orbit fixed-satellite service (NGSO FSS) stations.3 MVDDS is licensed on a geographic area basis according to Nielsen’s 2002 Designated Market Areas and several FCC-defined areas.4 The Commission adopted specific service and 1 Bruce E. Fox, Request for Waiver (filed Jul. 25, 2008) (“Bruce E. Fox Waiver Request”). Cass Cable TV, Inc., Request for Waiver (filed May 26, 2009) (“Cass Cable Waiver Request”). DTV Norwich, LLC, Request for Waiver (filed Jul. 25, 2008) (“DTV Norwich Waiver Request”). MDS Operations, Inc., Request for Waiver (filed Apr. 21, 2009) (“MDS Operations Waiver Request”). MVD Number 53 Partners, Request for Waiver (filed Jan. 28, 2009) (“MVD Number 53 Partners Waiver Request”). Satellite Receivers, Ltd., Request for Waiver (filed Jan. 7, 2009) (“Satellite Receivers Waiver Request”). SOUTH.COM LLC, Request for Waiver (filed Dec. 18, 2009) (“SOUTH.COM Waiver Request”). Story Communications, LLC, Request for Waiver (filed Jul. 17, 2009) (“Story Communications Waiver Request”). Vision Broadband, LLC, Request for Waiver (filed Jun. 9, 2009) (“Vision Broadband Waiver Request”). WCS Communications, Inc., Request for Waiver (filed Jun. 19, 2009) (“WCS Communications Waiver Request”). 2 See 47 C.F.R. § 101.1407. Two way services can be provided using spectrum in other bands for the return link. See id. 3 See, e.g., Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range, ET Docket No. 98-206, First Report and Order and Further Notice of Proposed Rule Making, 16 FCC Rcd 4096, 4099-4100 ¶ 2 (2000) (First R&O); see also 47 C.F.R. § 2.106. 4 See 47 C.F.R. § 101.1401. Designated Market Area (DMA®) is a registered trademark of Nielsen Media Research, Inc. (Nielsen). Although Nielsen revises DMAs periodically, the MVDDS license areas remain fixed to (continued....) Federal Communications Commission DA 10-1378 2 technical rules to permit MVDDS operators to share the 12.2-12.7 GHz band with DBS and NGSO FSS without causing harmful interference.5 3. In 2002, the Commission adopted a ten-year license term for MVDDS and gave licensees a renewal expectancy upon a showing of substantial service at license renewal, i.e., ten years after license grant.6 Substantial service means “service that is sound, favorable, and substantially above a level of mediocre service which might minimally warrant renewal.”7 The Commission also adopted safe harbors to assist MVDDS licensees in satisfying the substantial service requirement, as well as additional factors that it would take into consideration in determining whether a licensee satisfies the substantial service standard.8 The Commission declined to adopt an interim deadline, stating that because of various operating restrictions and the complexity and contention surrounding the issues involving band sharing, a ten-year buildout period was appropriate.9 However, in 2003 the Commission added a five-year interim build out requirement to prevent spectrum warehousing and to promote the rapid deployment of service to the public, at the request of a few industry commenters.10 If a given licensee fails to construct, the Commission noted that having a five-year build out period would allow for the auctioning of a new license in a more compressed timeframe.11 The Commission applies a renewal expectancy to MVDDS licenses based on a showing of substantial service within five years into the license term and again at ten years into the license term.12 (...continued from previous page) the boundaries of the 2002 DMAs. To avoid confusion with Nielsen’s current DMAs, MVDDS license areas are designated as “MVDs” in the Universal Licensing System. 5 See Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operations of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku-Band with Frequency Range; ET Docket No. 98-206, 17 FCC Rcd 9614 (2002) (Second Report and Order). 6 Second Report and Order, 17 FCC Rcd 9614, 9684 ¶ 177. See also, 47 C.F.R. § 101.1413(b). 7 47 C.F.R. §101.1413(b). 8 Second Report and Order, 17 FCC Rcd 9614, 9684 ¶ 177. See also, 47 C.F.R. § 101.1413(b). 9 Second Report and Order, 17 FCC Rcd at 9684 ¶ 176. 10 Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range, ET Docket No. 98-206, Third Report and Order, 18 FCC Rcd 13468, 13475 ¶¶ 15-16 (2003) (Third Report and Order). Earlier in 2003, the Commission sought further comment on the appropriate MVDDS service area. And, in response to a concern that ten years was too long, the Commission also took this opportunity to seek limited comment on the timing of the ten- year build out requirement. See Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range, ET Docket No. 98-206, Second Further Notice of Proposed Rulemaking, 18 FCC Rcd 7589, 7595 ¶¶ 16-17 (2003) citing Letter from Helen E. Disenhaus, Counsel for MDS America, Inc., to Marlene H. Dortch, Secretary, FCC (Oct. 3, 2002 Notice of Ex Parte Meeting); Letters from Nancy Killien Spooner, Counsel for MDS America, Inc., to Marlene H. Dortch, Secretary, FCC (Oct. 11, 2002, Mar. 7, 2003 and Mar. 25, 2003 Notice of Ex Parte Meeting). 11 Id., 18 FCC Rcd at 13475 ¶ 16. “Although we previously believed that a longer build out period was necessary in order to provide MVDDS licensees ample time and flexibility to work with other service providers in the 12 GHz band, the commenters contend that a five-year period is sufficient time to deploy MVDDS services in this band.” Id. at 13475 ¶¶ 15, 16, citing comments of MDS America (an affiliate of MDS Operations Inc., which holds 60 of the licenses that are the subject of the instant proceeding), and two other commenters that did not bid in the MVDDS auctions. See id., n.33. MDS America also argued that a shorter build out deadline would prevent spectrum warehousing and promote the rapid deployment of service to the public. See id. at 13470, 13475 ¶¶ 5, 16. 12 47 C.F.R. § 101.1413(a). Federal Communications Commission DA 10-1378 3 4. In 2004, the Commission held Auction No. 53,13 and awarded 192 of the 214 MVDDS licenses to the Licensees listed in the Appendix or their predecessors.14 The Commission granted the licenses won at Auction No. 53 on July 26, 2004, August 18, 2004, and September 23, 2004,15 with each license granted for a period of ten years. The five-year deadlines for demonstrating substantial service for licenses won at Auction No. 53 were July 26, 2009,16 August 18, 2009,17 and September 23, 2009,18 as applicable, and the ten year deadlines are July 26, 2014,19 August 18, 2014,20 and September 23, 2014,21 as applicable. 5. Between July 2008 and July 2009, the Commission received ten timely-filed requests for waiver of Section 101.1413 of the Commission’s Rules and for an extension of time to construct under Section 1.946(e)(1) of the Commission’s Rules.22 Most Licensees ask for a five-year extension of time to construct, which would be ten years from license grant and is the original construction deadline adopted by the Commission in the Second Report and Order.23 All of the Licensees maintain that they cannot construct their respective systems because there is no viable, affordable equipment that is capable of 13 Auction of Multichannel Video Distribution and Data Services Licenses, Public Notice, DA 02-1258 (rel. WTB May 24, 2002). 14 One of the 192 licenses sold at Auction 53, Call Sign WQAR709 (MVD202 – Zanesville) was assigned to Blumenthal DTV LLC (BDTV) in 2005. See File No. 0002022243. BDTV did not report that it satisfied the five- year buildout requirement or request an extension of time to meet the five-year deadline. Accordingly, the license for Call Sign WQAR709 cancelled automatically and was terminated effective July 26, 2009. 15 See Wireless Telecommunications Bureau Grants Multichannel Video Distribution and Data Service Licenses; Auction Event No. 53, Public Notice, 19 FCC Rcd 14083 (WTB 2004); Wireless Telecommunications Bureau Grants Multichannel Video Distribution and Data Service Licenses; Auction Event No. 53, Public Notice, 19 FCC Rcd 15615 (WTB 2004); DTV Norwich, LLC, Application for Multichannel Video Distribution and Data Service License, MVD001-New York, Order, 19 FCC Rcd 18701 (WTB BD 2004). 16 Bruce E. Fox (24 licenses), Cass Cable TV, Inc. (2 licenses), DTV Norwich, LLC (44 licenses), MDS Operations (60 licenses), MVD Number 53 Partners (10 licenses), Satellite Receivers, Ltd. (3 licenses), Vision Broadband, LLC (7 licenses), Story Communications, LLC (2 licenses), and WCS Communications, Inc. (1 license). See also Appendix. 17 SOUTH.COM (37 licenses). See also Appendix. 18 DTV Norwich, LLC (1 license). See also Appendix. 19 Bruce E. Fox (24 licenses), Cass Cable TV, Inc. (2 licenses), DTV Norwich, LLC (44 licenses), MDS Operations (60 licenses), MVD Number 53 Partners (10 licenses), Satellite Receivers, Ltd. (3 licenses), Vision Broadband, LLC (7 licenses), Story Communications, LLC (2 licenses), and WCS Communications, Inc. (1 license). See also Appendix. 20 SOUTH.COM (37 licenses). See also Appendix. 21 DTV Norwich, LLC (1 license). See also Appendix. 22 47 C.F.R. § 1.946(e). 23 Bruce E. Fox Waiver Request at 1. DTV Norwich Waiver Request at 1-2. MDS Operations Waiver Request at 1. MVD Number 53 Partners Waiver Request at 1. Satellite Receivers Waiver Request at 1. SOUTH.COM Waiver Request at 5. Vision Broadband Waiver Request at 1. WCA Communications Waiver Request at 4. MDS Operations asks for a five-year extension if we deny its separate request for waiver of certain MVDDS technical rules, or a two-year extension if we grant it. The Bureau recently granted MDS Operations technical-rules waiver request in part and otherwise denied it. See MDS Operations, Inc., Order, DA 10-1103 (WTB, rel. Jun. 22, 2010) (MDS Operations Order). Because this grant was partial, we consider MDS Operations to be seeking a five-year extension of time for each of its licenses. Cass Cable requests a two-year extension of time to July 26, 2011. Cass Cable Waiver Request at 1. Federal Communications Commission DA 10-1378 4 operating under the technical requirements applicable to the 12.2-12.7 GHz band.24 Citing their own or other MVDDS licensees’ experiences, most of the Licensees state that a number of manufacturers have cited the difficult coordination rules, the stringent power limits, and perceived resistance to alternative technologies by incumbents as reasons for terminating support of development projects.25 Two Licensees provide additional reasons for an extension of time to construct. DTV Norwich asks for additional time to conduct two trials of MVDDS equipment.26 Vision Broadband (Vision) contends that it should be granted additional time, in part, because a regulatory delay in the approval of its applications to acquire MVDDS licenses made compliance impossible in light of the prior coordination requirements of the MVDDS rules.27 Licensees maintain that an extension of time to construct furthers the Commission’s goal of providing broadband access, multichannel video, and other advanced services to consumers given the ongoing experiences and efforts towards developing the service (as compared to the delay and uncertainty of recovering and reassigning all of the licenses).28 Most Licensees note that a five-year extension of time would result in the construction deadline that the Commission originally adopted for MVDDS.29 They further argue that in other instances where the Bureau has granted an extension of time to construct under Section 1.946(e) of the Rules, the licensees had originally had ten years rather than five years to construct their facilities.30 6. DIRECTV opposes grant of the extension requests. DIRECTV argues that a grant of a five-year extension of time to construct would allow Licensees to warehouse spectrum, cause a significant delay in re-auctioning licenses, and prevent other parties from achieving more rapid deployment of service to the public.31 Moreover, DIRECTV argues, it is not a lack of equipment that has prevented Licensees from deploying MVDDS in the 12.2-12.7 GHz band, but a business decision by Licensees to seek regulatory relief because Licensees are unconvinced by the economics of operating under existing technical limitations.32 In fact, DIRECTV disputes whether there is a lack of commercially available equipment that complies with the Commission’s Rules.33 While Dish Network states that it neither 24 Bruce E. Fox Waiver Request at 4-5. Cass Cable Waiver Request at 3. DTV Norwich Waiver Request at 6. MDS Operations Waiver Request at 3. MVD Number 53 Partners Waiver Request at 4. Satellite Receivers Waiver Request at 3-4. SOUTH.COM Waiver Request at 5. Story Communications Waiver Request at 3. Vision Broadband Waiver Request at 3. WCS Communications Waiver Request at 3. 25 SOUTH.COM Waiver Request at 6-8. MDS Operations Comments at 2-3. MVD Partners Waiver Request at 7. Bruce E. Fox Waiver Request at 7-8. Satellite Receivers, Ltd. Waiver Request at 6-7. DTV Norwich Waiver Request at 8-9. 26 DTV Norwich Waiver Request at 7. DTV Norwich Comments at 1. DTV Norwich subsequently reported that it has completed these field tests. See para. 7, infra. 27 Vision Broadband Waiver Request at 1, 5 (stating that it applied for authority to acquire MVDDS licenses in 2005 but did not receive FCC approval until less than 90-days prior to July 26, 2009, which made compliance impossible in light of the 90-day satellite coordination provisions of 47 C.F.R. §§ 101.1409, 101.1440(d)(1)). Vision “acknowledges that the Commission’s rules do not permit an extension of time based on [unusual regulatory delay] alone,” id., Waiver Request at 1, and our records reflect that the Commission granted consent to the assignment application in 2008. See Application for Assignment of Authorizations from Edward A. Shergalis III, to Vision Broadband, LLC., File No.0002056604 (filed Feb. 24, 2005, amended, Oct. 17, 2007, and Jul. 21, 2008, consented Dec. 24, 2008, consummated April 13, 2009). Accordingly, we are not considering this argument. See also 47 C.F.R. § 1.946(e)(3) (extension requests will not be granted due to assignments or transfers). 28 MDS Operations Waiver Request at 5. 29 Second Report and Order, 17 FCC Rcd 9614, 9684-9685 ¶ 177. 30 See, e.g., MDS Operations Waiver Request at 5. 31 DIRECTV Opposition at 8. 32 Id. at 7. 33 Id. at 5-6. Federal Communications Commission DA 10-1378 5 opposes nor supports the extension requests, it indicates that it seeks to ensure that MVDDS Licensees do not misuse the buildout extension process to reopen the DBS/MVDDS interference and sharing rules to the detriment of the 30 million DBS subscribers nationwide.34 DIRECTV and Dish Network allege that Licensees seek an additional five years, not to construct MVDDS systems, but to lobby for relief from the technical rules and interference coordination obligations currently applicable to MVDDS.35 Dish Network recommends that we require each individual licensee that has not initiated at least one DBS/MVDDS coordination to demonstrate with specificity what steps have been taken to deploy services, including which specific equipment vendor inquiries were made, the results of those inquiries, and what specific investments in compliant MVDDS equipment and/or technology have been made in the past five years.36 7. On May 4, 2010, DTV Norwich reported that it had successfully completed field trials that confirm the technical feasibility of MVDDS services and requested that the Bureau act on its Waiver Request and extension of time to construct.37 DTV Norwich stated that its next step is to conduct a market-trial to assess the commercial viability of MVDDS, but that assessment cannot begin until the Bureau acts on its Waiver Request and removes the regulatory uncertainty surrounding its licenses.38 DTV Norwich further stated it anticipates starting a market trial in the first quarter of 2011 with a feasibility evaluation completed by the middle of 2012, if its extension request is granted.39 8. On June 23, 2010, MDS Operations reported that it would be able to make a prompt assessment of its MVDDS deployment plans within 90-120 days following the Bureau’s recent action on MDS Operations’ technical-rules waiver request.40 Following the market assessment, MDS Operations stated that it will establish construction and deployment priorities for all 60 of its licensed markets.41 MDS Operations indicated that it may deploy wireless broadband services rather than wireless cable programming services.42 MDS Operations indicated that it could begin deploying MVDDS operation in some markets as early as the first quarter of 2011 depending on market assessments and favorable weather and financial conditions for the balance of 2010.43 MDS Operations concludes that construction and deployment of a majority of its 60 stations could be accomplished as soon as two years following the Bureau’s action on its Waiver Request.44 34 Dish Network Comments at 1. 35 DIRECTV Opposition at 9. Dish Network Reply at 1-2 citing, e.g., MDS Operations’ [then-pending] request for permanent waiver of the power level limits for one site in the Albuquerque, New Mexico MVD. See generally note 23, supra. 36 Dish Network Comments at 3. 37 Ex Parte Letter from Wayne D. Johnsen, Counsel to DTV Norwich to Marlene H. Dortch, Federal Communications Commission at 1 (dated May 5, 2010). 38 Id. 39 Id. 40 Ex Parte Letter from Frederick M. Joyce, Counsel to MDS Operations, Inc. to Marlene H. Dortch, Federal Communications Commission at 2 (dated Jun. 23, 2010). See also note 23 , supra. 41 Id. 42 Id. 43 Id. 44 Id. Federal Communications Commission DA 10-1378 6 III. DISCUSSION 9. Section 1.946(e) provides that licensees may request to extend a construction period or coverage period before the expiration of the construction or coverage period and that an extension request may be granted if the licensee shows that failure to meet the construction or coverage deadline is due to involuntary loss of site or other causes beyond its control.45 However, extension requests will not be granted for failure to meet a construction or coverage deadline due to delays caused by a failure to obtain financing, to obtain an antenna site, or to order equipment in a timely manner.46 If we were to deny the instant requests, all 191 licenses would terminate automatically under Section 1.946(c) of the Commission’s Rules, which automatically terminates an authorization for failure to meet a substantial service obligation on the date the construction period expires.47 Section 1.925 of the Commission’s Rules provides that a waiver of the Commission’s Rules may be granted if it is shown that either (1) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (2) in view of the unique or unusual 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.48 10. Here, we find that the record demonstrates that there is a lack of viable, affordable equipment for MVDDS that can be deployed in the 12.2-12.7 GHz band. Moreover, we find that the lack of equipment and the resulting challenge in deploying MVDDS service affects every MVDDS Licensee and is thus widespread. Accordingly, we conclude that Licensees have met the requirements of Section 1.946(e) because it is well-established that the lack of viable, affordable equipment is a factor beyond a licensee’s control.49 In considering equipment availability, we note the distinction between cost- prohibitive “prototype” equipment and viable, affordable, commercially available equipment.50 We further find that, given the lack of viable, affordable equipment, there is no reason to conclude that re- auctioning the licenses would result in more expeditious build out than allowing the Licensees to continue their efforts towards deployment. Under these circumstances, we determine that strict enforcement of the five-year buildout deadline would tend to slow, rather than accelerate, equipment development and service deployment. We believe the public interest would best be served by granting these MVDDS 45 47 C.F.R. § 1.946(e)(1). 46 47 C.F.R. § 1.946(e)(2). 47 47 C.F.R. § 1.946(c). 48 Id.; see also Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (1972), cert. denied, 409 U.S. 1027 (1972); 47 C.F.R. § 1.3. 49 Applications Filed by Licensees in the Local Multipoint Distribution Service (LMDS) Seeking Waivers of Section101.1011 of the Commission’s Rules and Extensions of Time to Construct and Demonstrate Substantial Service, Memorandum Opinion and Order, 23 FCC Rcd 5894, 5905 ¶ 24 (WTB 2008) (LMDS MO&O). Consolidated Request of the WCS Coalition for Limited Waiver of Construction Deadline for 132 WCS Licenses, Order, 21 FCC Rcd 14134, 14140 ¶ 11 (WTB 2006) (WCS Order). In both the LMDS MO&O and WCS Order, the Bureau granted extensions of time to construct under Section 1.946(e) of the Commission’s Rules because LMDS and WCS licensees could not obtain viable, affordable equipment. See also Requests of Progeny LMS, LLC and PCS Partners, L.P. for Waiver of Multilateration Location and Monitoring Service Construction Rules, Order, 23 FCC Rcd 17250 (WTB 2008) (LMS Order) (granted industry-wide extensions based on record developed by some licensees due to, inter alia, lack equipment). 50 See, e.g., LMDS MO&O, 23 FCC Rcd at 5896-97, 5905 ¶¶ 5, 24 (found that licensees had demonstrated factors beyond their control after, inter alia, licensees explained that the only equipment available was limited operationally or cost prohibitive and that vendors offered no timetable for the availability of affordable equipment and that to obtain a firm commitment for the production of a sufficient number of product units to ensure affordability would take years.) Federal Communications Commission DA 10-1378 7 licensees additional time in which to construct their licenses, to allow the equipment market to develop further.51 11. Eleven licensees won 192 licenses in Auction 53 to operate MVDDS service in the 12.2- 12.7 GHz band: yet, to date, none has been able to purchase viable, affordable MVDDS equipment that complies with the Commission’s technical rules, none has deployed service, and one licensee allowed its license to cancel automatically, despite their combined investment of over $118 million to purchase MVDDS licenses at two auctions.52 While DIRECTV is correct that MVDDS equipment is deployed overseas, the record reflects that this equipment does not comply with Commission’s MVDDS rules, and absent significant modifications, cannot be deployed in the United States. Specifically, MDS Operations reports that its affiliate MDS America has found that manufacturing equipment for the U.S. market has proven more difficult than it originally anticipated when it asked the Commission to adopt a five-year buildout period.53 Additionally, DTV Norwich states that to conduct field trials of MVDDS equipment, it spent a year and hundreds of thousands of dollars to develop prototype equipment and was required to purchase minimum amounts of equipment.54 SOUTH.COM states that it tried for more than four years purchase equipment, but was unable to do so because of “limited manufacturer interest, continuing technical limitations, and high per-unit costs.”55 SOUTH.COM further reports that although it aggressively pursued the possibility of funding the development of equipment it has been unable to reach mutually agreeable terms with any manufacturer and has been forced to reject proposals with prohibitively expensive non-recurring engineering costs and the scale of equipment order guarantees.56 Five additional licensees state that they have been working closely with an MVDDS equipment manufacturer that has been beta testing equipment that could be used with their respective licenses, but that this MVDDS equipment manufacturer has not yet deployed its MVDDS product in the United States on a commercial basis.57 Story Communications indicates that it has not been able to build out its licensed service area because of a lack of vendors.58 12. We conclude that granting Licensees a five year extension is appropriate. We note that by granting this relief, we retain the ten-year buildout requirement in Section 101.1413 of the Commission’s Rules, which is commensurate with the length of the license term and well within precedent. In other cases where the Bureau has granted extensions of time to construct under Section 1.946(e) of the Commission’s Rules, the Bureau has granted construction extensions beyond the license term. For instance, in the LMDS MO&O, the Bureau granted LMDS licensees a four-year extension 51 Accord, LMDS MO&O, 23 FCC Rcd at 5906 ¶ 26. 52 Multichannel Video Distribution and Data Service Spectrum Auction Closes, Public Notice, 19 FCC Rcd 1834 (WTB 2004), Report No. AUC-04-53-G, Attachment A. 53 MDS Operations Comments at 3. According to MDS Operations, MDS America initially thought that it could adapt the MVDDS equipment that it deployed overseas to the technical rules applicable to MVDDS in the United States, but has unable to do so because the overseas equipment is designed to operate under higher power than is permitted under the Commission’s Rules. Id. See also text accompanying notes 10 and 11, supra. 54 DTV Norwich Waiver Request at 5-6. DTV Norwich Comments at 4-5. DTV Norwich states that it tested two separate configurations, a point-to-multipoint configuration suitable for Cape Coral, Florida, and other similarly situated areas, and a point-to-point backhaul operation suitable for Long Island, New York, and other urban and suburban areas. Id. 55 SOUTH.COM Waiver Request at 5. 56 Id. at 7. 57 Cass Cable Waiver Request at 3-4. WCS Communications Waiver Request at 3. Bruce E. Fox Waiver Request at 4-5. MVD Number 53 Partners Waiver Request at 4-5. Satellite Receivers Waiver Request at 3-4. Vision Broadband Waiver Request at 3. 58 Story Communications Waiver Request at 2-3. Federal Communications Commission DA 10-1378 8 beyond the license term.59 In the WCS Order, the Bureau granted WCS licensees a three-year extension beyond the license term.60 We also note that, at this juncture, only four years remain on the relevant licenses. Thus, we find the request by Licensees for a five-year extension of time to construct to be reasonable. 13. Under the Commission’s Rules and Bureau precedent, the central question before us is whether the record demonstrates the need for an extension of time due to causes beyond each licensee’s control. As discussed above, we have found that the record so demonstrates. Accordingly, we reject DIRECTV’s and DISH Network’s allegations related to Licensees’ motivations for requesting extensions.61 Further, because the record establishes that there is no viable, affordable, commercial equipment available that meets the MVDDS technical rules, we also reject Dish Network’s recommendation to require each individual licensee to specificity the steps that it took to acquire equipment.62 IV. CONCLUSION 14. Granting extensions will enable DTV Norwich to conduct a market trial and feasibility analysis of deploying MVDDS service in the 12.2-12.7 GHz band and will permit MDS Operations to conduct a market assessment of its MVDDS operations, establish construction and deployment priorities for its licensed markets, and begin deploying service.63 As these efforts progress towards the development of viable, affordable equipment, we expect the remaining eight licensees also will progress toward providing substantial service in their licensed areas. 15. For the reasons discussed above, we grant the requests for extension of time to construct under Section 1.946(e) of the Commission’s Rules and waive the five-year build out requirement in Section 101.1413 of the Commission’s Rules. Thus, under the Order we adopt today, Licensees must demonstrate substantial service ten years from license grant, i.e., at license renewal, which is consistent with the second buildout requirement in Section 101.1413 of the Commission’s Rules. V. ORDERING CLAUSES 16. 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), that the above-captioned requests for waivers and extensions of time to demonstrate substantial service ARE GRANTED to the extent indicated and are otherwise DENIED, and the deadlines for the Multichannel Video and Data Distribution Service licenses listed in the Appendix are EXTENDED to the dates shown in the Appendix. 59 LMDS MO&O, 23 FCC Rcd 5894, 5906 ¶ 26. 60 WCS Order, 21 FCC Rcd 14134, 14139 ¶ 9. 61 See text accompanying note 35, supra. 62 See text accompanying note 36, supra. Accord, LMS Order, note 49, supra. 63 See paras. 7- 8, supra. Federal Communications Commission DA 10-1378 9 17. IT IS FURTHER ORDERED that the licensing staff of the Broadband Division SHALL UPDATE each license listed in the Appendix in accordance with this Order. 18. These actions are taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission’s Rules, 47 C.F.R. §§ 0.131 and 0.331. FEDERAL COMMUNICATIONS COMMISSION Ruth Milkman Chief, Wireless Telecommunications Bureau Federal Communications Commission DA 10-1378 10 APPENDIX LIST OF 191 MVDDS LICENSES GRANTED EXTENSION/WAIVER OF THE 5-YEAR BUILDOUT DEADLINE LICENSEE NAME FILE NUMBER OF EX REQUEST CALL SIGN 10-YEAR DEADLINE DTV Norwich, LLC 0003516339 WQAR665 07/26/2014 DTV Norwich, LLC 0003516340 WQAR666 07/26/2014 DTV Norwich, LLC 0003516341 WQAR667 07/26/2014 DTV Norwich, LLC 0003516342 WQAR668 07/26/2014 DTV Norwich, LLC 0003516343 WQAR669 07/26/2014 DTV Norwich, LLC 0003516344 WQAR670 07/26/2014 DTV Norwich, LLC 0003516345 WQAR671 07/26/2014 DTV Norwich, LLC 0003516346 WQAR672 07/26/2014 DTV Norwich, LLC 0003516347 WQAR673 07/26/2014 DTV Norwich, LLC 0003516348 WQAR674 07/26/2014 DTV Norwich, LLC 0003516349 WQAR675 07/26/2014 DTV Norwich, LLC 0003516350 WQAR676 07/26/2014 DTV Norwich, LLC 0003516351 WQAR677 07/26/2014 DTV Norwich, LLC 0003516352 WQAR678 07/26/2014 DTV Norwich, LLC 0003516353 WQAR679 07/26/2014 DTV Norwich, LLC 0003516354 WQAR680 07/26/2014 DTV Norwich, LLC 0003516355 WQAR681 07/26/2014 DTV Norwich, LLC 0003516356 WQAR682 07/26/2014 DTV Norwich, LLC 0003516357 WQAR683 07/26/2014 DTV Norwich, LLC 0003516358 WQAR684 07/26/2014 DTV Norwich, LLC 0003516359 WQAR685 07/26/2014 DTV Norwich, LLC 0003516360 WQAR686 07/26/2014 DTV Norwich, LLC 0003516361 WQAR687 07/26/2014 DTV Norwich, LLC 0003516362 WQAR688 07/26/2014 DTV Norwich, LLC 0003516363 WQAR689 07/26/2014 DTV Norwich, LLC 0003516364 WQAR690 07/26/2014 DTV Norwich, LLC 0003516365 WQAR691 07/26/2014 DTV Norwich, LLC 0003516366 WQAR692 07/26/2014 DTV Norwich, LLC 0003516367 WQAR693 07/26/2014 DTV Norwich, LLC 0003516368 WQAR694 07/26/2014 DTV Norwich, LLC 0003516369 WQAR695 07/26/2014 DTV Norwich, LLC 0003516370 WQAR696 07/26/2014 DTV Norwich, LLC 0003516371 WQAR697 07/26/2014 DTV Norwich, LLC 0003516372 WQAR698 07/26/2014 DTV Norwich, LLC 0003516373 WQAR699 07/26/2014 DTV Norwich, LLC 0003516374 WQAR700 07/26/2014 DTV Norwich, LLC 0003516375 WQAR701 07/26/2014 DTV Norwich, LLC 0003516376 WQAR702 07/26/2014 DTV Norwich, LLC 0003516377 WQAR703 07/26/2014 DTV Norwich, LLC 0003516378 WQAR704 07/26/2014 DTV Norwich, LLC 0003516379 WQAR705 07/26/2014 DTV Norwich, LLC 0003516380 WQAR706 07/26/2014 DTV Norwich, LLC 0003516381 WQAR707 07/26/2014 DTV Norwich, LLC 0003516382 WQAR708 07/26/2014 DTV Norwich, LLC 0003516418 WQBD526 09/23/2014 Federal Communications Commission DA 10-1378 11 LICENSEE NAME FILE NUMBER OF EX REQUEST CALL SIGN 10-YEAR DEADLINE FOX, BRUCE E 0003678779 WQAR535 07/26/2014 FOX, BRUCE E 0003678785 WQAR534 07/26/2014 FOX, BRUCE E 0003678789 WQAR533 07/26/2014 FOX, BRUCE E 0003678791 WQAR532 07/26/2014 FOX, BRUCE E 0003678803 WQAR531 07/26/2014 FOX, BRUCE E 0003678808 WQAR530 07/26/2014 FOX, BRUCE E 0003678817 WQAR529 07/26/2014 FOX, BRUCE E 0003678822 WQAR528 07/26/2014 FOX, BRUCE E 0003678824 WQAR527 07/26/2014 FOX, BRUCE E 0003678825 WQAR526 07/26/2014 FOX, BRUCE E 0003678828 WQAR525 07/26/2014 FOX, BRUCE E 0003678832 WQAR524 07/26/2014 FOX, BRUCE E 0003678846 WQAR523 07/26/2014 FOX, BRUCE E 0003678851 WQAR522 07/26/2014 FOX, BRUCE E 0003678906 WQAR521 07/26/2014 FOX, BRUCE E 0003678920 WQAR520 07/26/2014 FOX, BRUCE E 0003678922 WQAR519 07/26/2014 FOX, BRUCE E 0003678924 WQAR518 07/26/2014 FOX, BRUCE E 0003678926 WQAR517 07/26/2014 FOX, BRUCE E 0003678929 WQAR516 07/26/2014 FOX, BRUCE E 0003678931 WQAR515 07/26/2014 FOX, BRUCE E 0003678932 WQAR514 07/26/2014 FOX, BRUCE E 0003678936 WQAR513 07/26/2014 FOX, BRUCE E 0003678940 WQAR512 07/26/2014 SOUTH.COM LLC 0003682191 WQAW335 08/18/2014 SOUTH.COM LLC 0003682192 WQAW336 08/18/2014 SOUTH.COM LLC 0003682193 WQAW337 08/18/2014 SOUTH.COM LLC 0003682194 WQAW338 08/18/2014 SOUTH.COM LLC 0003682195 WQAW339 08/18/2014 SOUTH.COM LLC 0003682196 WQAW340 08/18/2014 SOUTH.COM LLC 0003682197 WQAW341 08/18/2014 SOUTH.COM LLC 0003682198 WQAW342 08/18/2014 SOUTH.COM LLC 0003682199 WQAW343 08/18/2014 SOUTH.COM LLC 0003682200 WQAW344 08/18/2014 SOUTH.COM LLC 0003682201 WQAW345 08/18/2014 SOUTH.COM LLC 0003682202 WQAW346 08/18/2014 SOUTH.COM LLC 0003682203 WQAW347 08/18/2014 SOUTH.COM LLC 0003682204 WQAW348 08/18/2014 SOUTH.COM LLC 0003682205 WQAW349 08/18/2014 SOUTH.COM LLC 0003682206 WQAW350 08/18/2014 SOUTH.COM LLC 0003682207 WQAW351 08/18/2014 SOUTH.COM LLC 0003682208 WQAW352 08/18/2014 SOUTH.COM LLC 0003682209 WQAW353 08/18/2014 SOUTH.COM LLC 0003682210 WQAW354 08/18/2014 SOUTH.COM LLC 0003682211 WQAW355 08/18/2014 SOUTH.COM LLC 0003682212 WQAW356 08/18/2014 SOUTH.COM LLC 0003682213 WQAW357 08/18/2014 SOUTH.COM LLC 0003682214 WQAW358 08/18/2014 SOUTH.COM LLC 0003682215 WQAW359 08/18/2014 SOUTH.COM LLC 0003682216 WQAW360 08/18/2014 Federal Communications Commission DA 10-1378 12 LICENSEE NAME FILE NUMBER OF EX REQUEST CALL SIGN 10-YEAR DEADLINE SOUTH.COM LLC 0003682217 WQAW361 08/18/2014 SOUTH.COM LLC 0003682218 WQAW362 08/18/2014 SOUTH.COM LLC 0003682219 WQAW363 08/18/2014 SOUTH.COM LLC 0003682220 WQAW364 08/18/2014 SOUTH.COM LLC 0003682221 WQAW365 08/18/2014 SOUTH.COM LLC 0003682222 WQAW366 08/18/2014 SOUTH.COM LLC 0003682223 WQAW367 08/18/2014 SOUTH.COM LLC 0003682224 WQAW368 08/18/2014 SOUTH.COM LLC 0003682225 WQAW369 08/18/2014 SOUTH.COM LLC 0003682226 WQAW370 08/18/2014 SOUTH.COM LLC 0003682227 WQAW371 08/18/2014 Satellite Receivers, Ltd. 0003695158 WQAR507 07/26/2014 Satellite Receivers, Ltd. 0003695159 WQAR506 07/26/2014 Satellite Receivers, Ltd. 0003695160 WQAR505 07/26/2014 MVD Number 53 Partners 0003719347 WQAR538 07/26/2014 MVD Number 53 Partners 0003719348 WQAR539 07/26/2014 MVD Number 53 Partners 0003719349 WQAR540 07/26/2014 MVD Number 53 Partners 0003719350 WQAR541 07/26/2014 MVD Number 53 Partners 0003719351 WQAR542 07/26/2014 MVD Number 53 Partners 0003719352 WQAR543 07/26/2014 MVD Number 53 Partners 0003719353 WQAR544 07/26/2014 MVD Number 53 Partners 0003719354 WQAR545 07/26/2014 MVD Number 53 Partners 0003719355 WQAR546 07/26/2014 MVD Number 53 Partners 0003719356 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