Federal Communications Commission DA 12-936 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of 
Gateway Telecom LLC dba
STRATUSWAVE COMMUNICATIONS
Notifications of Completion of Construction of 
Educational Broadband Service Stations 
WQHJ858 and WQHJ859
Application to Modify Educational Broadband 
Service Station WQHJ859
Application for Special Temporary Authority
Gateway Telecom LLC dba
STRATUSWAVE COMMUNICATIONS, 
Assignor
WHEELING JESUIT UNIVERSITY, Assignee
Application for Commission Consent to Assign 
Educational Broadband Service Station WQHJ858
Gateway Telecom LLC dba
STRATUSWAVE COMMUNICATIONS, 
Assignor
DAVIS & ELKINS COLLEGE, Assignee
Application for Commission Consent to Assign 
Educational Broadband Service Station WQHJ859
UTOPIAN WIRELESS CORPORATION
Application for New Broadband Radio Service 
Licenses
VERMONT TECHNICAL COLLEGE, 
CASTLETON STATE COLLEGE, LYNDON 
STATE COLLEGE, Lessors
UW-RUTLAND, LLC, Lessee
Application for Commission consent to long-term 
de facto transfer lease arrangements for 
Educational Broadband Service Stations 
WQCI646, WQCN270, and WQCN711
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File Nos. 0003872836, 0004079884
File No. 0004040579
File No. 0004254759
File No. 0004320696
File No. 0004281076
File No. 0004040539
File Nos. 0004300112, 0004300140, 
0004300155
Federal Communications Commission DA 12-936 
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MEMORANDUM OPINON AND ORDER AND ORDER ON RECONSIDERATION
Adopted:  June 13, 2012 Released:  June 14, 2012
By the Chief, Wireless Telecommunications Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order and Order on Reconsideration, we act on a series 
of interconnected wireless license applications and petitions involving Gateway Telecom LLC dba 
StratusWave Communications (StratusWave), Utopian Wireless Corporation (Utopian) and its subsidiary 
UW-Rutland, LLC (UW-Rutland), and Vermont Telephone Company (VTel).  By acting on these 
applications, we help ensure that consumers and students in West Virginia, Ohio, and Vermont can 
receive wireless broadband service using Broadband Radio Service (BRS) and Educational Broadband 
Service (EBS) spectrum.  Specifically, we take the following actions:
StratusWave
· We conclude that StratusWave has demonstrated substantial service for EBS Stations WQHJ858 
and WQHJ859.  
· We authorize processing of an application to add facilities to Station WQHJ859 within the radio 
“quiet zone.”
· We authorize processing of applications to assign EBS Stations WQHJ858 and WQHJ859 from 
StratusWave to Wheeling Jesuit University and Davis & Elkins College, respectively.  We deny 
requests to remove certain conditions associated with those licenses upon assignment.
Utopian
· We find that Utopian must provide additional information to allow the Bureau to evaluate 
Utopian’s eligibility for an entrepreneur bidding credit for its Auction 86 BRS licenses.  We 
direct Utopian to provide that information.  
· We reject allegations of abuse of process that StratusWave and Utopian have made against each 
other.
VTel  
· We dismiss VTel’s petition to deny the Vermont State Colleges’ applications seeking consent to 
lease EBS spectrum to UW-Rutland.
II. BACKGROUND
A. Parties
2. Formed in 1998, StratusWave is a facilities-based provider of local telephone service, long 
distance telephone service, and Internet dial-up and broadband services to residential and business 
customers in the northern panhandle of West Virginia.1 As of 2005, StratusWave served over 3,000 dial-
  
1 See Waiver Requests, File Nos. 0002362083 and 0002362089 (filed Oct. 25, 2005) at 2.
Federal Communications Commission DA 12-936 
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up customers and 500 broadband residential and business customers, and had over 1,300 business 
telephone local lines and more than 500 resale local residential lines.2
3. Utopian is a wireless broadband service provider that was formed in 2006 to bring fourth-
generation wireless broadband service to unserved and underserved areas throughout the United States.3  
In Auction 86, an auction of BRS spectrum, Utopian was the winning bidder for the Clarksburg-Elkins, 
West Virginia; Fairmont, West Virginia; Harrisonburg, Virginia; and Wheeling, West Virginia Basic 
Trading Areas (BTAs).4 Utopian also leases, inter alia, EBS spectrum from three licensees in the 
Rutland, Vermont area.5
4. VTel is an independent telephone company providing telephone service to rural towns and 
villages throughout southern Vermont.6 VTel provides local exchange and other services to 
approximately 50,000 Vermonters over 19,000 telephone lines, and has provided service to rural areas in 
Vermont for more than a decade.7
B. StratusWave’s Conditional Licenses
5. In 2007, the Commission granted several requests for waiver to allow StratusWave to obtain 
licenses for four vacant A-group and four vacant B-group EBS channels in Centerville, Ohio and Arden, 
West Virginia.8 In allowing StratusWave to obtain these licenses, the Commission waived the filing 
freeze and eligibility and electronic filing requirements, concluding it would be in the public interest to do 
so because it “would increase the availability of competitive broadband services to consumers in north 
central West Virginia and the upper Ohio River Valley.”9 In granting the waivers, the Commission 
imposed a series of conditions to ensure that the anticipated public interest benefits materialized and that 
StratusWave would not receive a windfall without delivering its proposed service.10 Specifically, the 
Commission required that StratusWave: (1) make a showing of substantial service by December 31, 2009; 
  
2 Id. at 2-3.  
3 See Petition to Deny of Utopian Wireless Corporation, File No. 0004040579 (filed Dec. 28, 2009) (Quiet Zone 
Petition) at 2.
4 See Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Public 
Notice, 24 FCC Rcd 13572, 13582, 13585 (WTB 2009) (Auction 86 Closing PN).
5 See Lease Identifiers L000001967, L000001968, L000001969.  These licenses are for Stations WQCI646 
(Vermont Technical College), WQCN711 (Lyndon State College), and WQCN270 (Castleton State College) 
(collectively, Vermont State Colleges).
6 See Petition to Deny of Vermont Telephone Company, Inc., File Nos. 0004300112, 0004300140, 0004300155 
(filed Jul. 21, 2010) (VTel Petition) at 2.
7 Id.
8 See Gateway Telecom LLC d/b/a StratusWave Communications, Applications For New Educational Broadband 
Service Stations on the A and B Group Channels in Centerville, Ohio; and A and B Group Channels in Arden, West 
Virginia, Memorandum Opinion and Order, 22 FCC Rcd 15789 (2007) (StratusWave Waiver Order).
9 Id. at 15798 ¶ 20.  Specifically, the Commission waived: (a) the filing freeze that was imposed by the Commission 
in 2003 on new EBS applications (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, Notice of Proposed Rulemaking and Memorandum Opinion and Order, WT 
Docket No. 03-66, 18 FCC Rcd 6722, 6811 ¶ 226, 6825 ¶ 260 (2003)); (b) Section 27.1201(c)(3) of the 
Commission’s rules to permit StratusWave to hold licenses for EBS channels despite the fact that StratusWave did 
not meet the eligibility requirements to hold such licenses; and (c) Section 1.913(b) of the Commission’s rules to 
permit manual filing of the applications.  StratusWave Waiver Order, 22 FCC Rcd at 15789-15790, 15799 ¶¶ 1, 24.
10 StratusWave Waiver Order, 22 FCC Rcd at 15799 ¶ 23.
Federal Communications Commission DA 12-936 
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(2) not assign or transfer the license until the Commission accepted its substantial service showing; (3) 
not be permitted to renew the license; and (4) reduce, modify, or terminate operations in any areas in 
which a new co-channel or adjacent-channel EBS licensee begins service.11 On August 16, 2007, the 
Wireless Telecommunications Bureau (Bureau) issued StratusWave its EBS authorizations pursuant to 
the StratusWave Waiver Order with the conditions imposed by the Commission.12 StratusWave did not 
protest or note any objection to these conditions.
III. DISCUSSION
A. Introduction
6. In this Memorandum Opinion and Order and Order on Reconsideration, we address six 
issues relating to StratusWave, Utopian, and VTel.  First, we determine whether StratusWave has 
demonstrated substantial service for Stations WQHJ858 and WQHJ859.  Second, we determine whether 
StratusWave should be permitted to add facilities for Station WQHJ859 within the Quiet Zone.  Third, we 
address the assignment applications for Stations WQHJ858 and WQHJ859 and the request to remove 
certain conditions on those licenses.  Fourth, we address issues relating to Utopian’s Auction 86 long 
form application.  Fifth, we address VTel’s petition to deny the lease applications filed by the Vermont 
State Colleges.  Finally, we address the allegations of abuse of process that StratusWave and Utopian 
have lodged against each other and VTel.  In taking these actions today, we dismiss as moot 
StratusWave’s request for expedited action.13
B. StratusWave’s Substantial Service Showings 
1. Station WQHJ858
7. As a condition of its license, StratusWave had to demonstrate substantial service for its 
stations by December 31, 2009.14 The Commission defines substantial service as a level of service that is 
sound, favorable, and substantially above a level of mediocre service which just might minimally warrant 
renewal.15 A BRS or EBS licensee may make a showing based on meeting the definition of substantial 
service or based on meeting one of the general safe harbors provided by the Commission in Section 
  
11 Id. at 15800 ¶ 27.
12 Call Signs WQHJ858 and WQHJ859.  See Wireless Telecommunications Bureau Market-Based Applications 
Action, Report No. 3387, Public Notice (rel. Aug. 22, 2007) at 3. See Authorizations for EBS Stations WQHJ858 
and WQHJ859.
13 See Letter from Stephen Coran, Counsel, Gateway Telecom LLC dba StratusWave Communications, to Blaise 
Scinto, Chief, Broadband Division, Wireless Telecommunications Bureau, FCC, File Nos. 0003872836, 
0004040539, 0004040579, 0004079884,  0004281076, 0004320696 (filed Aug. 27, 2010) (Request for Expedited 
Action).
14 StratusWave filed a demonstration of substantial service for Station WQHJ858 on June 16, 2009.  File No. 
0003872836 (filed Jun. 16, 2009).  It amended its buildout notification to provide updated information about this 
station on December 30, 2009.  File No. 0003872836, Amendment (filed Dec. 30, 2009) (WQHJ858 Buildout 
Notification).  StratusWave also filed pleadings arguing that Bureau actions accepting substantial service filings 
made by other licensees, including Utopian, demonstrate that it has demonstrated substantial service for its licenses.  
See Petitions for Leave to File Requests for Official Notice of Gateway Telecom LLC dba StratusWave 
Communications; Requests for Official Notice of Gateway Telecom LLC dba StratusWave Communications (filed 
Dec. 9, 2011).
15 47 C.F.R. § 27.14(o).
Federal Communications Commission DA 12-936 
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27.14(o)(1) of the Commission’s rules.16 BRS and EBS licensees offering point-to-point services may 
demonstrate substantial service by constructing six permanent links per one million people.17
8.  In its Buildout Notification, StratusWave reports that it has constructed six point-to-point 
links within Station WQHJ858’s geographic service area (GSA).18 StratusWave is using the station to 
establish point-to-point microwave links that “provide broadband connectivity to public school facilities” 
in Brooke, Hancock, and Wetzel Counties, West Virginia.19 Utopian filed a request claiming that one of 
the sites from which StratusWave was operating – the Archer Heights site – is located outside of the GSA 
and therefore is unauthorized, and as such, Utopian asserts that the site should not be counted for 
purposes of determining substantial service.20  In response, StratusWave filed a Motion to Strike and 
Opposition to Utopian’s request.21 StratusWave argues that Utopian lacks standing because Utopian is 
not eligible for an EBS license and does not hold licenses for the overlapping BTAs, and therefore 
Utopian’s request should be stricken.22 StratusWave admits, however, that although it believed it was 
properly constructing its Archer Heights facilities within the GSA boundary, its consulting engineer made 
an error in mapping StratusWave’s GSA.23 StratusWave notified the Commission that it was taking 
immediate steps to construct alternative facilities to ensure continuous service to the Archer Heights 
site.24 In the meantime, StratusWave filed a request for special temporary authority (STA) to continue its 
operations at the Archer Heights site.25 The Bureau dismissed the STA Request, finding that under the 
terms of its license, StratusWave is permitted to continue operations at the Archer Heights site.26  The 
  
16 An EBS or a BRS licensee could meet the substantial service requirement by showing that it meets one or more of 
the following five general safe harbors: that it constructed six permanent links per one million people for licensees 
providing fixed point-to-point services; that it provided coverage of at least 30 percent of the population of the 
licensed area for licensees providing mobile services or fixed point-to-multipoint services; that it provided service to 
“rural areas” or areas with limited access to telecommunications services; that it provided specialized or 
technologically sophisticated service; or that it provided service to niche markets.  47 C.F.R. § 27.14(o)(1). In order 
to demonstrate substantial service, a licensee must show that it is actually providing service. See BRS/EBS 2d R&O, 
21 FCC Rcd at 5735-5736 ¶¶ 308-310. Transmitting signals that are not being used to provide service in some way 
does not constitute substantial service.  Id. Accordingly, all licensees must demonstrate that their facilities are being 
used in some fashion to provide service to customers, students, or others.
17 See 47 C.F.R. § 27.14(o)(1)(i).
18 WQHJ858 Buildout Notification, Supplement to Demonstration of “Substantial Service” at 2.  This GSA has a 
population of between 313,150 and 347,595 people, depending on the specific channel.  Id.    
19 Id. at 1.
20 Specifically, Utopian alleges that the Archer Heights site, which is supposed to be in the GSA of StratusWave’s 
Station WQHJ858 is actually within the GSA of co-channel EBS Station WQFY338.  See Request for Commission 
Action; Notice of Unauthorized Operations, Utopian Wireless Corporation (filed Apr. 26, 2010) (Utopian WQHJ858 
Request) at 6-8.  
21 See StratusWave Motion to Strike and Opposition to Request for Commission Action and Response to Notice of 
Unauthorized Operations (filed May 6, 2010).
22 Id. at 4-6.
23 According to StratusWave, its consulting engineer made an error in mapping the GSA because the program used 
to generate the maps for this station failed to identify a new station license granted in 2006.  Id. at 17-18.
24 See id. at Exhibit 3, Declaration of Jeffrey C. Gehman.
25 Request for Special Temporary Authority, File No. 0004254759 (filed May 19, 2010) at 2 (STA Request).
26 In dismissing the request, the Bureau stated: “The request for special temporary authority is dismissed as 
unnecessary. The operation described in the request is authorized under the terms of the license for Station 
WQHJ858 pursuant to Section 27.55(a)(4) of the Commission’s Rules.” Notice of Dismissal, Reference No. 
4986467 (Jun. 8, 2010).
Federal Communications Commission DA 12-936 
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operations are permitted under Section 27.55(a)(4) of our rules, which permits licensees to exceed signal 
strengths where there is no affected licensee.27 Here, there is no evidence that the Archer Heights site 
ever affected other licensees.  Utopian filed a petition for reconsideration of the STA Dismissal Letter, 
arguing that StratusWave was not authorized to provide service to a point outside its GSA and within the 
GSA of another station.28
9. Since petitions to deny cannot be filed against construction notifications, we will treat 
Utopian’s request as an informal objection.29 Since standing is not a prerequisite to filing an informal 
objection, we need not reach StratusWave’s standing argument.  Further, we conclude that StratusWave 
has adequately demonstrated substantial service for Station WQHJ858.  Under the point-to-point “safe 
harbor,” an EBS licensee can demonstrate substantial service by constructing six permanent links per one 
million people.30 As explained above, StratusWave constructed six permanent links for its GSA, which 
has a population of less than 500,000, and it therefore satisfies the safe harbor threshold of six permanent 
links per one million people.  Even if we disregard the path including the Archer Heights site, 
StratusWave was operating five point-to-point paths within its GSA and therefore exceeded the threshold 
as measured proportionally on a per-link basis.31 Utopian contends that StratusWave has not met the safe 
harbor because it must construct six permanent links for each of its two channel groups.32 We reject 
Utopian’s argument because the Commission’s rules specify that substantial service determinations are 
made on a per-license basis, rather than a per-channel basis.33 We therefore find that StratusWave has 
met the point-to-point safe harbor for this license.34 Furthermore, we find that the schools’ use of these 
links adequately demonstrates the provision of service, and therefore StratusWave has met its substantial 
service showing for Station WQHJ858. 
  
27 See 47 C.F.R. § 27.55(a)(4).
28 Utopian Wireless Corporation Petition for Reconsideration (filed Jun. 24, 2010).
29 See 47 C.F.R. § 1.41.  Construction notifications are not subject to the petition to deny process established in 47 
U.S.C. § 309.
30 See 47 C.F.R. § 27.14(o)(1)(i).  
31 See WQHJ858 Buildout Notification, Supplement to Demonstration of “Substantial Service.”  Excluding the 
Archer Heights site, StratusWave was operating five point-to-point paths at the buildout deadline.  Although the rule 
is stated in terms of six links per million people, the Bureau has allowed licensees with populations of less than one
million to meet a similar safe harbor for 39 GHz common carrier licensees by providing a proportionate number of 
links.  Specifically, 39 GHz common carrier licensees, who have a safe harbor of four links per million population, 
are deemed to meet the safe harbor by providing at least one link for each 250,000 people in their service area.  See 
Wireless Telecommunications Service Grants 321 Renewals in the CF Radio Service, Public Notice, 16 FCC Rcd 
15358 (WTB PS&PWD 2001).  In BRS and EBS, the equivalent requirement would be one link per 166,667 people.  
StratusWave’s five links each served fewer than 166,667 people (calculated by dividing the total population served –
347,595 by five).
32 Utopian WQHJ858 Request at 6.
33 See 47 C.F.R. § 27.14(o).  Indeed, when it adopted this rule, the Commission specifically rejected the idea of 
requiring that substantial service showings must be made for each channel group of a license.   See BRS/EBS 2nd
R&O, 21 FCC Rcd at 5731 ¶ 298 (“While Clearwire proposes that licensees demonstrate substantial service on a per 
channel group basis, we believe it is more appropriate to require demonstration of substantial service on a per 
license basis.”)
34 We conclude that StratusWave has demonstrated substantial service solely based on its compliance with the point-
to-point safe harbor.  We do not address the other bases StratusWave offers to demonstrate substantial service, nor 
Utopian’s arguments in opposition.  We also conclude that Utopian’s Petition for Reconsideration of StratusWave’s 
STA Request is moot because it was improperly based on Utopian’s belief that StratusWave failed to demonstrate 
substantial service for WQHJ858.  Furthermore, StratusWave has long since ceased the operations that were the 
subject of the STA.  
Federal Communications Commission DA 12-936 
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2. Station WQHJ859
10. StratusWave reports it has constructed and is operating three point-to-point links, used 
for communications by first responders, within the GSA of Station WQHJ859, located in Fairmont and 
Marion County, West Virginia (population 336,835).35 Utopian argues that StratusWave does not comply 
with the point-to-point safe harbor because it has not constructed links for each channel, and it asserts that 
the use by first responders of those links that StratusWave has constructed does not constitute “providing 
service” for purposes of determining substantial service.36 We reject Utopian’s arguments.  As noted 
above, StratusWave must demonstrate substantial service on a per-license rather than a per-channel 
basis.37 Furthermore, we find that the use of the links by first responders constitutes “providing service.”  
In determining what constitutes “providing service,” the Commission has explained that a provider needs, 
“at a minimum, … a customer or other person to serve.”38 The Commission did not further define who 
must be served but rather emphasized that the purpose of this requirement is to prevent spectrum 
warehousing, concluding that the transmission of test signals or color bars would not constitute 
substantial service.39 Therefore, we conclude that StratusWave can meet the “providing service” 
component of substantial service by serving first responders.  As a result, we find that StratusWave’s 
operation of Station WQHJ859 complies with the point-to-point safe harbor contained in Section 
27.14(o)(1)(i) of the Commission’s rules.40  We therefore conclude that StratusWave has demonstrated 
substantial service for Stations WQHJ858 and WQHJ859, and direct processing of its notifications.  
C. StratusWave’s Quiet Zone Application
11. StratusWave has filed a modification application seeking authority to operate four point-to-
point links on the campus of Davis and Elkins College, located inside the National Radio Astronomy 
Observatory’s Quiet Zone (Quiet Zone)41 and the GSA of WQHJ859.42 StratusWave also provided the 
requisite notice of intended operations with the National Radio Astronomy Observatory, which in turn 
reported that it did not object to StratusWave’s application, and recommended the Commission approve 
it.43  Utopian has filed a petition to deny StratusWave’s Quiet Zone Application, arguing that 
  
35 File No. 0004079884 (filed Dec. 30, 2009) (WQHJ859 Buildout Notification).  StratusWave states that these links 
enable “first responders to communicate in a bidirectional fashion between each of the specified locations.” See
WQHJ859 Buildout Notification, Demonstration of Substantial Service at 2.  We do not consider the facilities 
proposed in the pending Quiet Zone Application because those facilities are not yet authorized.  
36 Request for Commission Action, Utopian Wireless Corporation, File No. 0004079884 (filed Apr. 26, 2010) 
(Utopian WQHJ859 Request) at 7.
37 See BRS/EBS 2nd R&O, 21 FCC Rcd at 5731 ¶ 298; see also Utopian WQHJ859 Request at 5-6.
38 See BRS/EBS 2nd R&O, 21 FCC Rcd at 5736 ¶ 310, quoting San Diego MDS Company, Memorandum Opinion 
and Order, 19 FCC Rcd 23120, 23124 ¶ 10 (2004).
39 Id.
40 See 47 C.F.R. § 27.14(o)(1)(i).  
41 Part of the GSA of StratusWave’s Station WQHJ859 is located within the zone that requires coordination with the 
National Radio Astronomy Observatory in Green Bank, West Virginia, and the Naval Radio Research Observatory 
at Sugar Grove, West Virginia. See 47 C.F.R. § 1.924(a)(1).
42 See File No. 0004040579 (filed Nov. 20, 2009, amended Dec. 8, 2009) (Quiet Zone Application).  
Notwithstanding BRS and EBS’s conversion to geographic area licensing, a BRS or EBS station must be 
individually licensed if the station would affect radio quiet zones.  See 47 C.F.R. § 27.1209(b)(1)(iii).
43 Letter from Paulette W. Woody, Interference Office, NRQZ Administrator, to Gateway Telecom LLC (Dec. 8, 
2009), submitted as attachment to December 8 amendment to Quiet Zone Application.
Federal Communications Commission DA 12-936 
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StratusWave’s proposed operations would fail to comply with the substantial service requirement.44 We 
find that Utopian lacks standing to file a petition to deny against the Quiet Zone application.  Although 
Utopian is a winning bidder and prospective BRS licensee in the area covered by StratusWave, it is not 
yet a licensee in the area.45  The Commission has previously found that the mere fact that a petitioner has 
applied to be a competing licensee of the applicant does not confer standing.46 As a result, we treat 
Utopian’s pleading as an informal objection.47  Utopian argues that we should dismiss the Quiet Zone 
application as moot because StratusWave has failed to demonstrate substantial service, and therefore its 
license for Station WQHJ859 should be canceled.48 Because we find above that StratusWave has 
demonstrated substantial service for Station WQHJ859, we reject Utopian’s argument.  We grant 
StratusWave’s Quiet Zone application, and authorize processing of an application to add facilities to 
Station WQHJ859 within the radio “Quiet Zone.”  
D. Assignment of Stations WQHJ858 and WQHJ859 and Request for Removal of 
Conditions 
12. StratusWave has applied to assign its authorizations for EBS Stations WQHJ858 and 
WQHJ859 to Wheeling Jesuit University (WJU) and Davis & Elkins College (Davis & Elkins), 
respectively.49 Under the terms of its license, StratusWave must demonstrate substantial service before it 
can assign or transfer Stations WQHJ858 and WQHJ859.  We have already found above that StratusWave 
has demonstrated substantial service for these stations, and accordingly, it can now assign these licenses.50  
Based on the record before us, WJU and Davis & Elkins are fully qualified to become EBS licensees.51  
StratusWave also asks the Commission to approve a de facto spectrum transfer leasing arrangement by 
which Davis & Elkins College will lease a portion of its excess capacity to StratusWave.52 We have also 
  
44 Petition to Deny filed by Utopian Wireless Corporation against Gateway Telecom LLC, dba StratusWave 
Communications, Application For Modification of Educational Broadband Service Station WQHJ859 (filed Dec. 28, 
2009) (Petition to Deny Quiet Zone Application) at 1.
45 File No. 0004040539 (filed Nov. 23, 2009, amended Dec. 16, 2009) (Long Form Application).  Utopian will 
become a licensee in the area at the time its Long Form Application is granted.
46 See Pittsburgh Partners, L.P., Memorandum Opinion and Order, 10 FCC Rcd 2715 ¶ 4 (1994) (mere status as 
applicant in one proceeding does not confer standing as a party in interest in another proceeding); WIBF 
Broadcasting Co., Memorandum Opinion and Order, 17 F.C.C. 2d 876, 877 (1969).  In fact, even a prospective 
assignee of a station that has been approved for a license but has not yet consummated the transaction lacks 
standing.  See Syracuse Channel 62, Inc., Assignor, and Thomas J. Flatley, Assignee, Memorandum Opinion and 
Order, 60 Rad. Reg. 2d (P & F) 1161, 1165 ¶ 10 (1986).
47 See 47 C.F.R. § 1.41.
48 See Petition to Deny Quiet Zone Application at 1.
49 File No. 0004320696, Application for Assignment to Wheeling Jesuit University of Educational Broadband 
Service Station WQHJ858; File No. 0004281076, Application for Assignment of Educational Broadband Service 
Station WQHJ859 to Davis & Elkins College (filed Jun. 30, 2010) (StratusWave Assignment Applications).
50 Utopian argues that StratusWave improperly filed these assignment applications because under the terms of the 
conditional license, StratusWave cannot file assignment applications until its substantial service notifications are 
accepted.  See Petition to Deny of Utopian Wireless Corporation, File Nos. 0004320696 and 0004281076) (filed 
Aug. 4, 2010) (Utopian Assignment Petition) at 7-8.  In fact, the condition only prohibits the actual assignment of 
the license prior to acceptance of the substantial service notifications.  See StratusWave Waiver Order, 22 FCC Rcd 
at 15800 ¶ 27 (“StratusWave shall not assign or transfer this license … until the Commission has accepted a 
demonstration of substantial service for this authorization.”).  We therefore find that the applications were properly 
filed.
51 See 47 U.S.C. § 308(a).
52 StratusWave Assignment Applications, Public Interest Statement, Request for Removal of License Conditions and 
Contingent Request for Waiver (Request to Delete Conditions) at 1.
Federal Communications Commission DA 12-936 
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reviewed the proposed lease applications, and find that the proposed arrangements comply with the 
Commission’s rules.53
13. Request for Removal of Conditions.  In connection with the assignment applications, the 
parties seek removal of the conditions that were placed on StratusWave’s licenses that prohibited renewal 
of the license and that required StratusWave to reduce, modify, or terminate operations in any areas in 
which a new co-channel or adjacent-channel EBS licensee begins service.54 To the extent necessary, the 
parties seek waivers of Sections 1.110 and 1.945(e) of the Commission’s rules to allow them to seek 
reconsideration of these license conditions outside of the 30-day deadline.55 StratusWave claims it has 
been unable to develop a long-term sustainable business model to expand educational broadband services, 
in part because of the special conditions.56 The parties further argue that once the license is assigned to 
WJU and Davis & Elkins, the conditions placed on the licenses to preserve the primary educational 
purpose of EBS will be irrelevant and unnecessary.57 StratusWave argues it has demonstrated its 
commitment to education by meeting its substantial service obligation, providing service to educators, 
and agreeing to assign the licenses to local educators.58 The parties further contend that the Bureau’s 
decision to grant a waiver of the EBS filing freeze to Northern Michigan University supports their request 
to delete these conditions.59  
14. Utopian has filed a petition to deny these assignment applications and the associated waiver 
requests.60 We find that Utopian lacks standing to file a petition for the same reasons described above 
with respect to the Quiet Zone Application.61 We therefore dismiss Utopian’s pleading as a petition to 
deny, and consider Utopian’s arguments as an informal objection.62 Utopian generally argues that 
StratusWave has provided no unique circumstances that would justify a waiver.63 It contends that 
StratusWave’s assigning the licenses to WJU and Davis & Elkins is “window dressing” because it is 
leasing spectrum back from these entities.64 According to Utopian, economic hardship is not a unique or 
unusual factor justifying a waiver.65 Finally, Utopian believes that the waiver grant to Northern Michigan 
University is readily distinguishable because Northern Michigan University agreed not to lease its 
spectrum and to use the spectrum solely for educational purposes.66  
  
53 See 47 C.F.R. § 1.9030.
54 Request to Delete Conditions at 1; see also, StratusWave Waiver Order at 15800 ¶ 27.
55 Request to Delete Conditions at 6-10.  These rules provide that grants – including partial grants – of license 
applications are final unless the applicant rejects the grant or files a petition for reconsideration within 30 days of the 
action.  See 47 C.F.R. §§ 1.110, 1.945(e). 
56 Request to Delete Conditions at 5.
57 Id.
58 Id. at 4-5.
59 Id. at 6, citing The Board of Trustees of Northern Michigan University For a New Educational Broadband Service 
Station, Memorandum Opinion and Order, 23 FCC Rcd 11832 (WTB 2008) (Northern Michigan University).
60 Utopian Assignment Petition.
61 See ¶ 11, supra.
62 See 47 C.F.R. § 1.41.
63 Utopian Assignment Petition at 5.
64 Id. at 8.
65 Id. at 9.
66 Id. at 9-10.
Federal Communications Commission DA 12-936 
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15. Section 1.945(e) of the Commission rules states that partial or conditional grants of 
applications for Wireless Radio Services are final unless a petition for reconsideration is filed within 30 
days after the partial grant.67 Although StratusWave seeks a waiver of this rule, the 30-day 
reconsideration deadline in the rule reflects a statutory requirement.  Section 405(a) of the 
Communications Act, as implemented by Section 1.106(f) of the Commission’s rules, requires that a 
petition for reconsideration be filed within thirty days from the date of public notice of Commission 
action.68 The United States Court of Appeals for the District of Columbia Circuit has held that the 
Commission cannot extend or waive this statutory thirty-day filing period, except where “extraordinary 
circumstances indicate that justice would thus be served,”69 such as where the late-filing is due to the 
Commission’s failure to give a party timely notice of the action for which reconsideration is sought.70  
Since such extraordinary circumstances do not exist in this case, StratusWave has failed to provide 
sufficient basis for a waiver of Section 1.945.71
16. We further do not find that StratusWave has met its burden to justify a waiver of Section 
1.110 of our rules.  Section 1.110 provides that a Commission order granting an application with 
conditions not requested by the applicant is deemed a grant unless the applicant rejects the conditions in 
writing within 30 days, which will result in a Commission order vacating the grant and designating the 
application for hearing.72 The Commission has previously held that “Section 1.110 does not allow an 
  
67 47 C.F.R. § 1.945(e) (“The FCC may grant applications in part, and/or subject to conditions other than those 
normally applied to authorizations of the same type. When the FCC does this, it will inform the applicant of the 
reasons therefor. Such partial or conditional grants are final unless the FCC revises its action in response to a 
petition for reconsideration. Such petitions for reconsideration must be filed by the applicant within thirty days after 
the date of the letter or order stating the reasons for the partial or conditional grant, and must reject the partial or 
conditional grant and return the instrument of authorization.”).
68 47 U.S.C. § 405(a); 47 C.F.R. § 1.106(f).  
69 Gardner v. FCC, 530 F.2d 1086, 1091 (D.C. Cir. 1976).
70 See Reuters Ltd. v. FCC, 781 F.2d 946, 951-52 (D.C. Cir. 1986); Gardner v. FCC, 530 F.2d at 1091; Applications 
of Stephen E. Powell, Memorandum Opinion and Order, 11 FCC Rcd 11925, 11926 ¶ 5 (1996) (Powell); Satellite 
Signals of New England, Inc., Memorandum Opinion and Order, 24 FCC Rcd 10919, 10924 ¶ 14 (WTB 2009).  
70 See Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976). In such circumstances, the petitioner must demonstrate that 
the delay in filing is attributable to Commission error in giving notice and that it acted promptly upon discovering
the adoption of the Commission's decision.  Powell, 11 FCC Rcd at 11926 ¶ 5
71 The two cases StratusWave cites in support of its request for waiver of Section 1.110 of the Commission’s rules 
are distinguishable. See Request to Delete Conditions at 9, citing Mobile Communications Corp. of America v. FCC, 
77 F.3d 1399, 1403 (D.C. Cir. 1996) (reviewing Nationwide Wireless Network Corp., Memorandum Opinion and 
Order, 9 FCC Rcd 3635 (1994)); Shareholders of Tribune Company, Transferors, and Sam Zell, et al., Transferees, 
MB Docket No. 07-119, Memorandum Opinion and Order-Corrected, 22 FCC Rcd 21266, 21278-21279 n.72 
(2007) (Tribune). In those cases, the Commission issued waivers at the same time as it conditioned the grants in 
question so that the applicants could seek immediate judicial review of the conditional grants without rejecting the 
conditions, which otherwise would have been a prerequisite to the filing of a petition for judicial review and would 
have resulted in vacatur of the conditional grant and issuance of a hearing designation order.  See Nationwide 
Wireless Network Corp., 9 FCC Rcd at 3644 ¶ 39; Tribune, 22 FCC Rcd at 21279 n.72.  Here, in contrast, 
StratusWave seeks permission to request reconsideration years after the Commission conditionally granted its 
application.
72 47 C.F.R §1.110 (“Where the Commission without a hearing grants any application in part, or with any privileges, 
terms, or conditions other than those requested, or subject to any interference that may result to a station if 
designated application or applications are subsequently granted, the action of the Commission shall be considered as 
a grant of such application unless the applicant shall, within 30 days from the date on which such grant is made or 
from its effective date if a later date is specified, file with the Commission a written request rejecting the grant as 
made. Upon receipt of such request, the Commission will vacate its original action upon the application and set the 
application for hearing in the same manner as other applications are set for hearing.”). 
Federal Communications Commission DA 12-936 
11
applicant to first accept a conditional grant and later seek reconsideration of the conditions therein.”73  
StratusWave clearly accepted its conditional license by constructing facilities and filing substantial 
service notifications for those licenses and it has not demonstrated that a waiver would be warranted. 
17. An applicant seeking a waiver must show that (i) the underlying purpose of the rules(s) 
would not be served or would be frustrated by application to the instant case and 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.74 Because StratusWave fails to demonstrate 
any public interest element to granting the waiver over a strict application of the rules, we reject 
StratusWave’s application. 
18. Addressing the first prong, StratusWave asserts that the underlying purpose of Section 1.110 
would not be served because the reasons for imposing the conditions will no longer exist after 
StratusWave assigns the licenses to these educational entities.75 StratusWave further asserts that removal 
of the conditions would advance the public interest goals of expanding wireless broadband services to 
unserved and underserved areas.76  The underlying purpose of Section 1.110 is to protect “the 
Commission’s valid interest in the finality of its decisions.”77 Allowing applicants to collaterally attack 
conditions years after the fact, absent evidence of a material change in circumstances rendering the 
conditions no longer necessary in the public interest,78 would introduce uncertainty into the Commission’s 
decision-making process.  Further, granting the waiver would create an incentive for licensees to engage 
in gamesmanship by accepting the benefits of a conditional grant, only to challenge it later to try to make 
the license grant unconditional.  We therefore believe that a waiver would be inconsistent with the 
underlying purpose of the rule and contrary to the public interest.
19. With respect to the second prong of the waiver standard, StratusWave claims the unique 
circumstances surrounding its license make application of Section 1.110 unduly burdensome and contrary 
to the public interest.79  StratusWave contends that “[t]he 10-year, nonrenewable nature of the License 
coupled with the potential that new licensees can disrupt existing service have deterred investment at the 
levels needed to sustain the service.”80  In accepting the conditional license, however, StratusWave 
accepted the costs and risks associated with undertaking this project with the conditions prescribed.81  
  
73 See Western Cities Broadcasting, Inc., MM Docket No. 90-424, Hearing Designation Order, 5 FCC Rcd 6177, 
6179 ¶ 16 (1990), citing Central Television, Inc. v. FCC, 834 F.2d 186 (D.C. Cir. 1987) (“Section 1.110 . . . does not 
allow applicants first to accept a partial grant, yet later to seek reconsideration of its conditions.”); Capital 
Telephone Co. v. FCC, 498 F.2d 734, 739 (D.C. Cir.1974).
74 47 C.F.R. § 1.925(b)(3).
75 Id. at 7.  StratusWave directs its arguments to waiver of Sections 1.110 and 1.945(e), but since we have found that 
StratusWave has not met the stringent standard for waiver of the statutory deadline embodied in section 1.945(e), we 
limit our discussion here to Section 1.110.
76 Id. at 1.
77 See Central Television, Inc. v. FCC, supra, 834 F.2d at 190-191; Capital Telephone Co. v. FCC, 498 F.2d 734, 
739 (D.C. Cir.1974).
78 See General Motors Corporation, Hughes Electronics Corp., Transferors and The News Corporation, Limited, 
Transferee, Memorandum Opinion and Order, 24 FCC Rcd 8674, 8678, ¶ 8 (2009) (News Corp.-Hughes).
79 Request to Delete Conditions at 9.
80 See id at 5.
81 See StratusWave, WJU, and Davis & Elkins’ Joint Consolidated Motion to Strike and Opposition to Petition to 
Deny of Utopian Wireless Corporation (filed Aug. 23, 2010) at 9.  StratusWave asserts that its assessment of“the 
inability to sustain a successful long-term business model [without removal of the conditions] are based on [its] years of 
(continued....)
Federal Communications Commission DA 12-936 
12
Further, StratusWave’s voluntary decision to assign the license with an associated lease-back to 
StratusWave, an event that happens regularly with spectrum licenses, does not amount to a “unique or 
unusual factual circumstance.”82 In that regard, we agree with Utopian that Northern Michigan 
University is readily distinguishable from StratusWave because, unlike StratusWave, Northern Michigan 
University was eligible to hold an EBS license, intended to use the license solely for educational 
purposes, and agreed not to lease the spectrum.83 Thus, StratusWave has not shown that strict application 
of the reconsideration deadline would be contrary to the public interest or that waiver would serve the 
public interest.
20. To the extent StratusWave seeks removal of the conditions due to changed circumstances,84
as opposed to reconsideration of the order imposing the conditions, we disagree that assigning the licenses 
to educational institutions amounts to a substantial change in the original circumstances warranting 
removal of the conditions.  Although assigning the licenses to EBS-eligible entities supports the 
Commission’s goal of providing broadband service for educational purposes, the Commission 
conditioned its grant to StratusWave not only to achieve this goal but also to ensure that StratusWave 
would not receive a windfall, either by indefinitely utilizing spectrum that other similarly situated 
commercial operators could not access, or by selling its long-term lease rights to a third party.  In granting 
StratusWave a waiver, the Commission determined that the conditions in question were necessary to meet 
the public interest in ensuring that educators could access the spectrum in the future.85 We also agree 
with Utopian that granting a waiver under these circumstances would allow the parties to improperly 
circumvent the EBS filing freeze to the detriment of other educators who could not apply for EBS 
spectrum.86 In short, StratusWave has failed to demonstrate that changes in circumstances since the 
licenses were granted now make the conditions contrary to the public interest. 
21. For the foregoing reasons, we deny the request to delete certain conditions from the licenses 
for Stations WQHJ858 and WQHJ859.  Although the parties may decide not to consummate the 
assignment and associated lease of these conditional licenses,87 we direct the Broadband Division to 
process the assignment applications, and we give the parties the opportunity to determine whether they 
would like to proceed with the applications.
  
(...continued from previous page)
operating wireless businesses in West Virginia, decades of experience in the wireless business generally, a deep 
understanding of the terrain and foliage challenges and a firm understanding of the financial wherewithal required to 
construct, operate and support educational broadband access in rural communities.”  Id.  StratusWave has not shown why 
it could not have used its expertise in this regard to anticipate at the outset that the conditions would likely deter 
investment.
82 47 C.F.R. § 1.925(b)(3).
83 Northern Michigan University, 23 FCC Rcd at 11836-11837 ¶¶ 11-12.
84 See, e.g., Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations by Time 
Warner Inc. and America Online, Inc., Transferors, to AOL Time Warner, Inc., Transferee, Order, 27 FCC Rcd 638 
(2012) (conditions removed due to corporate restructuring); News Corp.-Hughes, supra (same).
85 StratusWave Waiver Order, 22 FCC Rcd at 15796 ¶ 15.
86 See Utopian Assignment Petition at 8.  In 2007, StratusWave received a waiver of the EBS filing freeze, which 
would have normally precluded any entity, including StratusWave, WJU, and Davis & Elkins, from applying for this 
EBS spectrum.  See StratusWave Waiver Order.
87 See Request to Delete Conditions at 10.
Federal Communications Commission DA 12-936 
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E. Utopian’s Auction 86 License Application
22. Utopian filed a license application for four Auction 86 BRS licenses, and seeks a bidding 
credit as a very small business.88 To qualify for the bidding credit, Utopian must file ownership 
information to demonstrate it qualifies under the applicable gross revenues threshold.89 StratusWave 
opposes Utopian’s license application, asserting that the Commission should deny Utopian’s application 
because Utopian misrepresented its gross revenues and is thus not entitled to this bidding credit.  
StratusWave further argues that because of this misrepresentation, Utopian does not have the character 
qualifications to hold a Commission license.90 Although Utopian challenges StratusWave’s standing on 
the basis that StratusWave did not demonstrate any injury from Utopian’s alleged conduct,91 because 
StratusWave was a bidder for the markets in question, we find that StratusWave has standing to challenge 
this application.92
23. Designated Entity (DE) rules.  The award of bidding credits to small businesses is the 
principal means by which the Commission promotes the objective of disseminating licenses to a wide 
variety of entities designated in the Communications Act.93 In determining an applicant’s eligibility for a 
bidding credit under the DE rules, the gross revenues of any entity that individual controls are attributable 
to the applicant under the affiliation rules.94  In its short form application, Utopian listed ITFS Spectrum 
Consultants, LLC (ISC) as its affiliate.95 In its Long Form Application, Utopian reported that ISC was a 
consulting entity for which Rudy Geist, Utopian’s President, Director, and 43.33 percent owner, held a 50 
percent ownership interest, but it further noted that ISC has had no activity or income since 2007 and is 
no longer in existence.96  Utopian also argues that ISC’s revenues are not attributable to Utopian because 
ISC is “not a going concern.”  According to Utopian, ISC ceased transacting business prior to December 
31, 2006, except for the distribution of property in the liquidation/winding up of its affairs.97 Utopian 
  
88 Utopian was the winning bidder in Auction 86 for four BRS licenses in the Clarksburg-Elkins, West Virginia; 
Fairmont, West Virginia; Harrisonburg, Virginia; and Wheeling, West Virginia BTAs.  See Auction 86 Closing PN, 
24 FCC Rcd at 13582, 13585; Long Form Application.
89 See 47 C.F.R. § 1.2110.
90 Petition to Deny or Dismiss of Gateway Telecom LLC, dba StratusWave Communications (filed Mar. 8, 2010) 
(StratusWave Petition) at 4.
91 See Utopian Opposition and Motion to Strike at 1-2 n.1. 
92 See Alaska Native Wireless, L.L.C., Order, 18 FCC Rcd 11640, 11643-11645 ¶¶ 9-12 (2003).
93 See 47 U.S.C. § 309(j)(3)(B).
94 Revision of Part 22 and Part 90 of the Commission’s Rules to Facilitate Future Development of Paging Systems, 
WT Docket No. 96-18, Memorandum Opinion and Order on Reconsideration and Third Report and Order, 14 FCC 
Rcd 10030, 10086 ¶ 100 (1999); see also PVT Networks, Inc., Order, 15 FCC Rcd 19105, 19107-19108 ¶ 8 (WTB 
PS&PWD 2000) (although the personal income of PVT’s Treasurer Robert Mayberry, which was derived from 
Mayberry’s personal farm, was not attributable to PVT, the gross revenues of the farm itself were found 
attributable).  
95 Utopian listed ISC as its affiliate by virtue of Rudy Geist’s 50 percent ownership interest in ISC and his status as 
Managing Member of ISC.  Mr. Geist is Utopian’s President and Director, and owns 43.33 percent of Utopian.  File 
No. 0003938120 (Short Form Application), Exhibit 2:  Ownership Information Addendum (filed Sep. 18, 2009).  An 
affiliate’s gross revenues are attributable to the applicant.  See 47 C.F.R. § 1.2110(b).
96 Long Form Application, Exhibit C: Designated Entities (filed Dec. 16, 2009).
97 See Utopian Wireless Corporation Consolidated Opposition and Motion to Strike Gateway Telecom, LLC d/b/a 
StratusWave’s Petition to Deny (filed Mar. 15, 2010) at 7 (Utopian Opposition and Motion to Strike).
Federal Communications Commission DA 12-936 
14
admits, however, that ISC, a Delaware limited liability corporation, did not file a certificate of 
cancellation with Delaware until September 2009, after Utopian filed its short form application.98  
24. We disagree with Utopian, finding that ISC is an affiliate of Utopian with gross revenues 
attributable to Utopian.  The Commission’s DE rules provide that the gross revenues of Utopian, its 
affiliates, its controlling interests, and the affiliates of its controlling interests for the preceding three years 
must all be included in calculating Utopian’s gross revenues.99 An entity is considered an affiliate of 
Utopian’s if it is directly or indirectly controlled by a third party that also controls Utopian.100  
Furthermore, if Utopian’s officers are affiliates of other entities, the gross revenues of those other entities 
are attributed to Utopian.101  Mr. Geist is the President of Utopian and a controlling interest holder in 
Utopian; he is also a controlling interest holder of ISC.102 Because Mr. Geist controls both Utopian and 
ISC, ISC is considered an affiliate of Utopian, and its gross revenues are attributable to Utopian.103  Mr. 
Geist and ISC are two distinct entities for purposes of our bidding credit gross revenues analysis.  
Therefore, regardless of whether Mr. Geist received any personal income from ISC, ISC’s gross revenues 
are attributable to Utopian as Utopian’s affiliate.  
25. We also disagree with Utopian’s argument that ISC’s revenues are not attributable to 
Utopian because ISC was “not a going concern” at the time of the long form filing. Under Delaware law, 
a limited liability company continues to exist as a separate legal entity until cancellation of the limited 
liability company’s certificate of formation.104 Because ISC was still in existence at the time of the filing 
of the short form application,105 and because Mr. Geist was a controlling interest holder of both ISC and 
Utopian, ISC must be considered an affiliate of Utopian for purposes of Auction 86.106  Therefore, we 
direct Utopian, within 30 days from release of this Memorandum Opinion and Order and Order on 
Reconsideration, to amend its pending long form application to provide the gross revenues of ISC for 
2006, 2007, and 2008.  The Bureau will evaluate this information to determine whether Utopian is 
eligible for a bidding credit.
26. Character Qualifications. We reject StratusWave’s argument that Utopian misrepresented 
facts or lacked candor in connection with ISC.107 The sine qua non of misrepresentation or lack of candor 
is intent to deceive the Commission.108 The Commission has declined to infer intent to deceive the 
Commission when information is elsewhere disclosed or available in its records.109 Although Utopian’s 
  
98 See Supplement to Consolidated Opposition and Motion to Strike Gateway Telecom LLC d/b/a StratusWave’s 
Petition to Deny (filed Apr. 1, 2010), Affidavit of Rudolph J. Geist.
99 47 C.F.R. § 1.2110(b).
100 47 C.F.R. § 1.2110(c)(5)(i)(C).
101 47 C.F.R. § 1.2110(c)(2)(i)(F).
102 See n.95, supra.
103 See 47 C.F.R. § 1.2110(c)(5)(i)(C).
104 6 Del.C. § 18-201(b).  
105 An applicant seeking treatment as a designated entity must certify that it is qualified as a designated entity at the 
time it files it short form application.  See 47 C.F.R. § 1.2105(a)(2)(iv).
106 See 47 C.F.R. § 1.2110(c)(5)(i)(C).
107 See Petition to Deny or Dismiss of Gateway Telecom LLC dba StratusWave Communications, File No. 
0004040539 (filed Mar. 8, 2010) at 7-10.
108 See Fox River Broadcasting, Inc., Memorandum Opinion and Order, 93 FCC 2d 127, 129 ¶ 6 (1983).
109 See Joseph W. Bollinger and Donna M. Bollinger, Memorandum Opinion and Order, 16 FCC Rcd 18107, 18109 
¶ 5 (2001).
Federal Communications Commission DA 12-936 
15
disclosure was inadequate, we do not find sufficient evidence of intent to deceive the Commission when 
Utopian initially disclosed ISC in its short form application, and StratusWave has failed to provide any 
additional support for it claims.  Further, as explained in Section G below, we reject StratusWave’s claim 
of abuse of process against Utopian.  Accordingly, based on the record currently before us, we find that 
Utopian has the character qualifications to be a Commission licensee.
F. UW-Rutland EBS Spectrum Lease 
27. The Vermont State Colleges (Vermont Technical College, Castleton State College, and 
Lyndon State College) have filed applications for new spectrum leasing arrangements for EBS stations 
WQC1646, WQCN270, and WQCN711, in the Rutland-Bennington, Vermont Basic Trading Area.110  
These applications assign the existing leases from Utopian to UW-Rutland, LLC, a wholly owned 
subsidiary of Utopian.111 VTel filed a petition to deny the Vermont State Colleges’ lease applications, 
claiming that the applications are procedurally defective and that Utopian lacks the necessary character 
qualifications to hold these licenses.112 We agree with Utopian that VTel lacks standing to file a 
petition.113 Although VTel was the winning bidder for the Rutland, Vermont, BRS BTA license, that 
status is insufficient to confer standing.114 We therefore consider VTel’s filing as an informal 
objection.115
28. VTel first claims that the applications should be denied because they raise a number of 
unanswered questions procedurally.116 We disagree.  As noted above, the instant applications propose to 
assign Utopian’s lease rights to UW-Rutland, LLC, a wholly-owned subsidiary of Utopian.117 Although 
these are pro forma assignments, the parties must submit a new lease filing due to the limitations of the 
form used to notify the Commission of leasing arrangements, Form 608.118 We reject VTel’s contention 
that we need additional information to determine compliance with the Commission’s rules before granting 
the leases.119 While VTel appears to believe that there may have been an improper transfer of control, 
  
110 Utopian has been leasing EBS stations WQC1646, WQCN270, and WQCN711 from Vermont Technical 
College, Castleton State College, and Lyndon State College, respectively, since 2007.  See File Nos. 0004300112 
(Vermont Technical College), File No. 0004300140 (Castleton State College), and File No. 0004300155 (Lyndon 
State College) (filed Jun. 28, 2010). The applications propose to assign Utopian’s lease rights to UW-Rutland, LLC, 
a wholly-owned subsidiary of Utopian.  Although these are pro forma assignments, the parties must submit a new 
lease filing due to the limitations of the form used to notify the Commission of leasing arrangements, Form 608.  See
The Wireless Telecommunications Bureau Announces FCC Form 608 Is Available for Filing Spectrum Leasing 
Notifications and Applications and Private Commons Arrangements, Public Notice, 21 FCC Rcd 9748, 9750 (WTB 
2006).  Form 608 does not provide a purpose for assigning a lease.
111 See File Nos. 0004300112 (Vermont Technical College), File No. 0004300140 (Castleton State College), and 
File No. 0004300155 (Lyndon State College) (filed Jun. 28, 2010).
112 See Petition to Deny of Vermont Telephone Company, Inc., File Nos. 0004300112, 0004300140, 0004300155 
(filed Jul. 21, 2010) (VTel Petition) at 2.
113 See Consolidated Opposition and Motion to Strike of Utopian Wireless Corporation to Petition to Deny, File No. 
0004300155 (filed Aug. 4, 2010).
114 See ¶11, supra.   We note that VTel became a licensee after it filed the VTel Petition.  See Wireless 
Telecommunications Bureau Grants Broadband Radio Service Licenses, Public Notice, 26 FCC Rcd 6990 (WTB 
2011).
115 See 47 C.F.R. § 1.41.
116 See VTel Petition at 6.
117 See n.110, supra.
118 See id.
119 VTel Petition at 6-7.
Federal Communications Commission DA 12-936 
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and asks for further information concerning the transfers and the leases,120 our review shows that the 
Vermont State Colleges have valid lease notifications on file with Utopian, and that the instant filings 
merely propose to assign the lease rights to a new subsidiary.  
29. VTel also asserts that the lease applications should be denied because the Vermont State 
Colleges failed to follow proper procedure under Vermont state law in entering into leases to Utopian, 
and therefore it may not be in the public interest to allow the leases to remain with Utopian/UW-
Rutland.121 We find that the Vermont State Colleges’ alleged procedural mistakes do not have any 
bearing on this case.  VTel has not alleged that these defects were challenged or adjudicated in any state 
court of competent jurisdiction.122 Moreover, VTel has not asserted that Utopian or the Vermont State 
Colleges have violated the Communications Act or our rules.  Additionally, because we conclude herein 
that Utopian has the requisite character qualifications to be a Commission licensee, we render moot 
VTel’s request that the application be held in abeyance until Utopian’s character qualifications are 
resolved.123 We therefore deny the VTel Petition and direct the Broadband Division to process the lease 
filings made by the Vermont State Colleges and UW-Rutland, LLC.
G. Abuse of Process Allegations 
30. StratusWave, Utopian, and VTel have repeatedly accused each other of filing abusive and 
frivolous pleadings that lack merit.  In our view, the parties have filed an excessive number of pleadings 
that are repetitive and overly contentious in nature.124  The Bureau has the authority to impose sanctions
on parties whose primary purpose is to abuse the Commission’s processes.  Given the Commission’s goal 
of encouraging participation in FCC proceedings, however, we impose sanctions only “in egregious cases 
where the abusive nature of the pleadings is clear.”125 The Commission examines whether the petitioner 
filed a pleading for the primary purpose of delay using a number of factors, including statements by the 
licensee’s principals or officers admitting the obstructive purpose, the withholding of information relevant 
to disposition of the requested issues, and the absence of any reasonable basis for the allegations raised in 
  
120 Id.
121 VTel Petition at 4-7.  Specifically, the Vermont State Auditor concluded that the Vermont State Colleges should 
have: (1) sought a professional appraisal of the potential lease value of its licenses, (2) bid the lease opportunity 
publicly, and (3) engaged expert counsel to review any proposed lease agreement. Id. at 4-5; Vermont State 
Colleges—Leasing of Educational Broadband Service (EBS) Spectrum & Competitive Bidding Review, Report of the 
Vermont State Auditor, RPT. No. 07-11 (Nov. 2, 2007) (Auditor Report).
122 The Commission has traditionally declined to interfere in questions of alleged State law violations where no 
challenge has been made in the State courts and the determination is one that is more appropriately a matter of State 
resolution See Abundant Life, Inc., Memorandum Opinion and Order, 16 FCC Rcd 4972, 4974 (2001); North 
American Broadcasting, Inc., Memorandum Opinion and Order, 15 FCC 2d 979, 983 (Rev. Bd. 1969).  In addition, 
the Vermont State Auditor found no violation of state law.  See Auditor Report at 4.  
123 See VTel Petition at 7-8. VTel did not raise any new character qualifications issues against Utopian but simply 
referred to the allegations made by StratusWave.  Id.
124 For example, StratusWave argues that Utopian’s Petition should be stricken because it is a frivolous pleading that 
was designed to cause harm or delay. Consolidated Motion to Strike and Opposition of Gateway Telecom LLC, dba 
StratusWave Communications, to Petition Deny of Utopian Wireless Corporation, (filed Jan. 12, 2010) at 11-12. 
Utopian argues that the StratusWave Petition filed against its Long Form Application is a strike petition designed to 
delay licensing of Utopian’s BTA authorizations “unless and until Utopian adheres to StratusWave’s demands to 
withdraw from participating in an unrelated licensing proceeding, and should immediately be stricken from the 
record.”  Utopian Opposition and Motion to Strike at 1.  Utopian accuses VTel of abuse of process for allegedly 
filing the VTel Petition to Deny solely for purposes of delay.  Consolidated Opposition and Motion to Strike of 
Utopian Wireless Corporation to Petition to Deny, File Nos. 0004300112, 0004300140, 0004300155 (filed Aug. 4, 
2010) at 3 (Utopian Lease Opposition).
125 Litigation Recovery Trust, Memorandum Opinion and Order, 17 FCC Rcd 21852, 21857-58 ¶ 11 (2002).
Federal Communications Commission DA 12-936 
17
the pleadings.126 The evidentiary standard is high:  the party filing the petition to strike the pleading must 
make a strong showing of an improper purpose.127  
31. Extrinsic Evidence against StratusWave.  Utopian presents evidence that it believes 
demonstrates that StratusWave has filed a pleading in abuse of process.128 Utopian provides an email 
from Rusty Irvin, StratusWave’s President, to Rudy Geist, Utopian’s President, which references 
StratusWave’s intent to file against Utopian’s Long Form Application if a settlement between the parties 
is not reached.129 Although the email raises concern, it does not prove that StratusWave filed an 
opposition to Utopian’s license application in order to delay the licensing process.  Further, 
StratusWave’s actions exhibit no other factors that demonstrate its pleading’s primary purpose was to 
delay. In fact, StratusWave’s petition raises legitimate factual and legal questions about whether ISC’s 
gross revenues are attributable to Utopian.130 Utopian has therefore failed to meet its high burden of 
showing that StratusWave filed its pleadings for an improper purpose.  Further, after reviewing all of the 
other pleadings and the arguments presented therein, we conclude that none of the parties has engaged in 
conduct so egregious to merit striking pleadings or imposing sanctions.  We therefore deny all motions to 
strike pleadings in these collective proceedings. 
IV. CONCLUSION AND ORDERING CLAUSES
32. For the reasons discussed above, we conclude that StratusWave has demonstrated substantial 
service for EBS Stations WQHJ858 and WQHJ859.  We authorize processing of an application to add 
facilities to Station WQHJ859 within the radio “Quiet Zone.”  We authorize processing of applications to 
assign EBS Stations WQHJ858 and WQHJ859 from StratusWave to Wheeling Jesuit University and 
Davis & Elkins College, respectively, but we deny requests to remove certain conditions associated with 
those licenses.  We direct Utopian to provide additional information necessary for staff to determine 
Utopian’s eligibility for a bidding credit and process its long form application for BRS licenses for which 
it was the winning bidder in Auction 86. In other respects, we deny StratusWave’s petition to deny filed 
against Utopian.  We dismiss as moot StratusWave’s request for expedited action.  We deny VTel’s 
petition to deny the Vermont State Colleges’ lease applications seeking consent to lease EBS spectrum 
from the Vermont State Colleges to UW-Rutland.  We reject allegations of abuse of process the parties in 
this proceeding have made against each other.  
33. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of 
1934, as amended, 47 U.S.C. § 154(i) and Sections 1.946(d) and 27.14(o) of the Commission’s rules, 47 
C.F.R. §§ 1.946(d), 27.14(o), that the construction notifications filed by Gateway Telecom, LLC dba 
StratusWave Communications for Educational Broadband Service Stations WQHJ858 and WQHJ859 
(File Nos. 0003872836, 0004079884) ARE ACCEPTED, and it IS FOUND that EBS Stations WQHJ858 
and WQHJ859 are providing substantial service.
34. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, 
as amended, 47 U.S.C. § 154(i),  and Section 1.41 of the Commission’s rules, 47 C.F.R. § 1.41, that the 
two Requests for Commission Action filed by Utopian Wireless Corporation on April 26, 2010, filed 
concerning Stations WQHJ858 and WQHJ859, respectively, ARE DENIED.  
  
126 Radio Carrollton, Memorandum Opinion and Order, 69 FCC 2d 1139, 1152 ¶ 26 (1978), recon. denied, 72 FCC 
2d 264 (1979) (Radio Carrollton); Greater Portland Broadcasting Corp., Letter, 3 FCC Rcd 1953, 1954 (1988).
127 Radio Carrollton, 69 FCC 2d at 1151-1152 ¶ 25.
128 Utopian Opposition and Motion to Strike at 2-4.
129 Id. at Exhibit 1.
130 See StratusWave Petition.
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35. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 405 and Sections 1.106, and 1.931 of the Commission’s rules, 
47 C.F.R. §§ 1.106, 1.931, that the Petition for Reconsideration filed by Utopian Wireless Corporation on 
June 24, 2010, IS DISMISSED AS MOOT.
36. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.41 and 1.939 of the Commission’s rules, 
47 C.F.R. §§ 1.41, 1.939, that the Petition to Deny filed by Utopian Wireless Corporation on December 
28, 2009, IS DISMISSED as a petition to deny and IS DENIED as an informal objection.
37. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, 
as amended, 47 U.S.C. § 154(i), and Sections 1.110 and 1.945(e) of the Commission’s rules, 47 C.F.R. §§ 
1.110, 1.945(e), that the request to delete conditions from the licenses for Stations WQHJ858 and 
WQHJ859 contained in application File Nos. 0004320696 and File No. 0004281076 filed by Wheeling 
Jesuit University and Davis & Elkins College, respectively, on July 15, 2010, ARE DENIED.
38. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.41 and 1.939 of the Commission’s rules, 
47 C.F.R. §§ 1.41, 1.939, that the Petition to Deny of Utopian Wireless Corporation filed on August 4, 
2010, IS DISMISSED as a petition to deny and IS GRANTED IN PART and is otherwise DENIED as an 
informal objection.
39. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Section 1.2110 of the Commission’s rules, 47 C.F.R. 
§ 1.2110, that within 30 days of the release of this Memorandum Opinion and Order and Order on 
Reconsideration, Utopian Wireless Corporation SHALL AMEND its pending Long Form Application 
(File No. 0004040539) to provide the gross revenues of ITFS Spectrum Consultants, LLC, for 2006, 
2007, and 2008.  
40. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.41 and 1.939 of the Commission’s rules, 
47 C.F.R. §§ 1.41, 1.939, that the Petition to Deny or Dismiss of Gateway Telecom LLC dba 
StratusWave Communications filed on March 8, 2010, IS GRANTED IN PART and is otherwise 
DENIED.
41. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.41 and 1.939 of the Commission’s rules, 
47 C.F.R. §§ 1.41, 1.939, that the Petition to Deny filed by Utopian Wireless Corporation on December 
28, 2009, IS DISMISSED as a petition to deny and IS DENIED as an informal objection.
42. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.41 and 1.939 of the Commission’s rules, 
47 C.F.R. §§ 1.41, 1.939, that the Petition to Deny of Vermont Telephone Company, Inc. filed on July 21, 
2010, IS DISMISSED as a petition to deny and IS DENIED as an informal objection.
43. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act 
of 1934, as amended, 47 U.S.C. §§ 154(i), 309 that the Broadband Division of the Wireless 
Telecommunications Bureau SHALL PROCESS the following applications in accordance with this 
Memorandum Opinion and Order and Order on Reconsideration:  File Nos. 0004040579, 0004281076, 
0004300112, 0004300140, 0004300155, and 0004320696.
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44. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, 
as amended, 47 U.S.C. § 154(i), that the Request for Expedited Action filed by Gateway Telecom LLC 
dba StratusWave Communications on August 27, 2010, IS DISMISSED AS MOOT.
45. 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, 0.331.
FEDERAL COMMUNICATIONS COMMISSION
Rick Kaplan
Chief, Wireless Telecommunications Bureau