Federal Communications Commission DA 20-1230 Before the FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of Requests for Waiver of Sections 90.1307(c) and (d) and Sections 90.1338(a) and (b) of the Commission’s Rules ) ) ) ) ) ) WT Docket No. 18-353 ORDER Adopted: October 16, 2020 Released: October 16, 2020 By the Chief, Wireless Telecommunications Bureau I. INTRODUCTION 1. By this Order, the Wireless Telecommunications Bureau (Bureau) of the Federal Communications Commission (Commission) grants requests for waiver of the requirements in sections 90.1307, 90.1311, 90.1338, and 96.21 of the Commission’s rules to allow the wireless broadband licensees identified in Appendices A and B additional time to transition their part 90 operations to part 96 operations in the 3650-3700 MHz band. 47 CFR §§ 90.1307, 90.1311, 90.1338, and 96.21. See also 47 CFR § 1.3 (allowing any provision of the Commission’s rules to be waived upon a showing of good cause); The Wireless Internet Service Providers Association and the Utilities Technology Council Request for Waiver of Sections 90.1307(c) and (d) and Sections 90.1338(a) and (b) of the Commission’s Rules, Order, 35 FCC Rcd 2750, 2754-2755, paras. 1-2, 9 (2020) (Extension Order); Amendment of the Commission’s Rules with Regard to Commercial Operations in the 3550-3650 MHz Band, Report and Order and Second Further Notice of Proposed Rulemaking, 30 FCC Rcd 3959, 4071-80, paras. 387-412 (2015) (2015 Report and Order). Each of these requests satisfies the three prongs articulated in the Bureau’s Extension Order and otherwise meets the Commission’s high bar for relief. Extension Order, 35 FCC Rcd at 2054, para. 11; see also, e.g., WAIT Radio v. FCC, 418 F.2d 1153. 1157 (D.C. Cir. 1969), cert denied, 409 U.S. 1027 (1972) (noting that “an applicant for waiver faces a high hurdle even at the starting gate”). Given the circumstances that caused delays for these licensees, and in the interest of keeping their customers connected amidst “a series of disruptions to the economic, educational, medical, and civic life of our country” See Press Release, FCC, Chairman Pai Launches the Keep Americans Connected Pledge (Mar. 13, 2020), https://www.fcc.gov/document/chairman-pai-launches-keep-americans-connected-pledge. that are unique and unprecedented in modern history, we find good cause to again extend, for limited periods of time, the deadline for these licensees to complete their transition to part 96-based operations. See Letter from Louis Peraertz, Vice President of Policy, WISPA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 18-353, at 1-2 (filed Oct. 15, 2020) (explaining that “the conditions that led to the Bureau’s grant of waiver in March remain in October”). The individual waiver requests we grant, to the extent described herein, are listed in Appendices A and B. II. BACKGROUND 2. In 2015, the Commission adopted rules for commercial use of the 3550-3700 MHz band that allow dynamic spectrum sharing through a three-tiered access and authorization framework to coordinate shared federal and non-federal use of the band among incumbents, Priority Access Licenses (PAL) and General Authorized Access (GAA) users. See 2015 Report and Order, 30 FCC Rcd at 3962, para. 4. Incumbent users comprise the highest priority tier and receive protection from all other users; they include federal users, Fixed Satellite Service earth stations and, for a finite period, grandfathered terrestrial wireless broadband licensees in the 3650-3700 MHz band. See 47 CFR § 96.3. Operations under the new framework already have commenced, and automated frequency coordinators, known as Spectrum Access System Administrators, facilitate sharing between and among the tiers of users. See 47 CFR §§ 96.15, 96.67; Extension Order, 35 FCC Rcd at 2751, para. 4. 3. In the 2015 Report and Order, the Commission also adopted a transition period for certain part 90 incumbent grandfathered wireless broadband licensees in the 3650-3700 MHz band to transition to part 96 rules. See 2015 Report and Order, 30 FCC Rcd at 4071-80, paras. 387-412. See also 47 CFR §§ 90.1307, 90.1311, 90.1338. Wireless broadband licensees in the 3650-3700 MHz band operate under part 90, subpart Z, on a nationwide, non-exclusive basis. 47 CFR § 90.1307(a). Consistent with the Commission’s rules and the Extension Order, the transition periods for 3650-3700 MHz band wireless broadband licensees end between October 17, 2020 and January 8, 2023, depending on the grant and expiration dates of each individual license. To ensure customers are able to stay connected to broadband and essential services during the declared state of national emergency because of the COVID-19 pandemic, all licensees in the 3650-3700 MHz band that would have had to transition from part 90 to part 96 rules between April 17, 2020 and October 17, 2020 must now transition by October 17, 2020. See Extension Order, 35 FCC Rcd at 2750, para. 1; see also 47 CFR §§ 90.1307, 90.1311, 90.1338. 4. To qualify as a grandfathered wireless broadband licensee, the licensee must have registered its stations on or before April 17, 2015, and the registered stations must have been “constructed, in service, and fully compliant with the rules in Part 90, subpart Z as of April 17, 2016.” 47 CFR § 90.1338(a). During the transition period, grandfathered licensees are granted incumbent status with respect to Citizens Broadband Radio Service operations in their protection zones. See 2015 Report and Order, 30 FCC Rcd at 4076, para. 402. Non-grandfathered licensees, i.e., part 90 licensees that did not apply for grandfathered status or did not have qualifying sites, have the right to operate at existing registered sites under part 90 (on a non-exclusive, unprotected basis) until the date for which each licensee would have qualified for grandfathered status had they applied. See Wireless Telecommunications Bureau Announces Filing Window and Procedures for 3650-3700 MHz Band Licensees to File Supplemental Information Necessary for Creating Grandfathered Wireless Protection Zones, GN Docket No. 12-354, Public Notice, 32 FCC Rcd 2977 (WTB 2017); Extension Order, 35 FCC Rcd at 2752-53, para. 5. For most of these licensees, this date is the same as the end of their license term. For any license issued or renewed after January 8, 2013, grandfathered status (and the right to operate under part 90) initially extended only until April 17, 2020—and was later extended —regardless of when each license terminates. See generally 2015 Report and Order, 30 FCC Rcd at 4075-76, paras. 399-412. 5. Specifically, in March 2020, the Bureau extended this deadline by six months to October 17, 2020. It found that this extension was warranted by “the evolving and unpredictable nature of the [COVID-19] pandemic, and its potential to cause delays for even diligent licensees.” Extension Order, 35 FCC Rcd at 2052-53, para. 5. The Bureau noted that licensees seeking a further extension of the transition period would be required to “‘plead with particularity the facts and circumstances which warrant such action’” See Extension Order, 35 FCC Rcd at 2054, para. 11 (quoting Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C. Cir. 1968)). and would be expected to “describe: (1) the licensee’s good faith efforts to purchase, install, and test the necessary upgrades or equipment required to operate their networks pursuant to part 96 prior to the transition deadline; (2) the unique or unusual circumstances that prevented them from completing the part 96 transition by October 17, 2020; and (3) the specific steps—including the time required to complete those steps—that the licensee will take to complete its transition expeditiously.” Id. The Bureau also reminded licensees that “‘an applicant for waiver faces a high hurdle even at the starting gate.’” See id. (quoting WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), cert denied, 409 U.S. 1027 (1972)). III. DISCUSSION 6. The Commission may waive any of its rules for good cause shown and where a request establishes that unique or unusual factual circumstances warrant relief. 47 CFR §§ 1.3, 1.925. We find good cause to waive the requirements in sections 90.1307, 90.1311, 90.1338, and 96.21 of the Commission’s rules Id. at §§ 90.1307, 90.1311, and 90.1338. for the wireless broadband licensees listed in Appendices A and B. Specifically, we find that it would serve the public interest to grant a limited, 60-day extension (to December 16, 2020) to the licensees listed in Appendix A and a limited, 120-day extension (to February 14, 2021) to the licensees listed in Appendix B to transition their part 90 operations to part 96 operations. 7. Each of these licensees submitted a waiver request before October 17, 2020 and made an individual showing that addressed the specific circumstances described in the Extension Order. See Extension Order, 35 FCC Rcd at 2054, para. 11 During their applicable extension periods, licensees will be permitted to continue operating consistent with their current status (i.e., grandfathered or non-grandfathered). Specifically, grandfathered licensees may continue to operate within their designated protection zones and operational frequencies consistent with the technical rules in part 90, subpart Z; non-grandfathered licensees may continue to operate at existing registered sites under part 90 on a non-exclusive and unprotected basis. All 3650-3700 MHz band licensees listed in Appendix A are required to complete the transition of their part 90 operations to part 96 rules or cease operating at non-transitioned sites by December 16, 2020, and licensees listed in Appendix B are required to do the same no later than February 14, 2021. Consistent with the Commission’s usual practices, the Bureau performed a case-by-case review of each request. See Extension Order, 35 FCC Rcd at 2054, para. 10 8. Good Faith Efforts. The licensees’ requests describe in varying detail their good faith efforts to complete the transition from part 90 to part 96 operations. The efforts described include, but are not limited to: placing orders for required equipment; making staffing decisions to facilitate the transition, such as hiring additional workers to install equipment; starting customer premise equipment replacement installations; and successfully programming new equipment. See, e.g., SmarterBroadband, Inc., Request for Limited Waiver, ULS File No. 0009250640 (filed Oct. 5, 2020); Virginia Everywhere, LLC dba All Points Broadband, Request for Limited Waiver, ULS File No. 0009259590 (filed Oct. 13, 2020); Q-Wireless, LLC, Request for Limited Waiver, ULS File No. 0009260419 (filed Oct. 13, 2020). 9. For example, JAB Wireless, Inc., on behalf of its license-holding subsidiaries (collectively, Rise Broadband) explains that, notwithstanding its having ordered (and received) some equipment and having changed out more than 50% of its access points and nearly 70% of its customer premise equipment, it will need additional time to complete the transition. See, e.g., JAB Wireless, Inc., on behalf of LP Broadband, Inc., Petition for Limited Waiver at iii-v, ULS File No. 0009228893 (filed Sept. 18, 2020). Rise Broadband requested an additional 90 days, until January 15, 2021, by which to complete the transition. Other actors have taken some steps toward meeting the transition deadline, but not acted in a manner that merits additional relief beyond 120 days. For example, Neptuno Media, Inc. (Neptuno) requests an extension until April 17, 2021, to meet the transition deadline. See, e.g., Neptuno Media, Inc. d/b/a Neptuno Networks, Request for Waiver, ULS File No. 0009237301 (filed Sept. 23, 2020). Neptuno only recently identified and selected a manufacturer to supply equipment for its transition, has not yet finalized agreements with contractor teams for deployment of CPE points, or commenced deployment of tower technicians to migrate access points. See, e.g., Neptuno Media, Inc. d/b/a Neptuno Networks, Request for Waiver at 5, 8-9, ULS File No. 0009237301 (filed Sept. 23, 2020). We do not agree that an extension of six months is warranted based on these facts. We deny in part other requests for longer extensions for similar reasons. For example, Worrell Enterprises LLC (Wave2Net) requests a six-month extension of time but provides no details on its efforts to secure part 96 equipment other than to say that it “is diligently working with its vendors . . . to obtain the required equipment, and [ ] will, upon receipt, immediately commence sourcing and testing the Part-96 compatible equipment, as well as registering with the SAS.” Worrell Enterprises LLC, Petition for Waiver at 6-7, ULS File No. 0009236244 (filed Sept. 23, 2020). We find no justification in support of requests for much longer periods of time. See, e.g., Southeast Colorado Power Ass’n, Petition for Waiver, ULS File No. 0009218036 (filed Sept. 10, 2020) (requesting “a short waiver, up to and including October 17, 2021” of the transition deadline) (emphasis added). 10. Unique and Unusual Circumstances. Each of the licensees requesting waivers described in varying detail the unique and unusual intervening circumstances, events or other factors that prevented them from timely completing the transition. For example, licensees explained that restrictions and safety precautions related to the COVID-19 pandemic posed a significant barrier to operations and, in some cases, caused a halt to transition plans. See, e.g., Southeast Colorado Power Ass’n, Petition for Waiver, ULS File No. 0009218036 (filed Sept. 10, 2020). Meanwhile, an increased demand for broadband forced some licensees to divert resources to accommodate new service requests and increase capacity to existing sites in order to allow new and existing customers to work, go to school, and procure healthcare from home. See, e.g., Worrell Enterprises LLC, Petition for Waiver, ULS File No. 0009236244 (filed Sept. 23, 2020). In addition, many licensees did not learn until late 2019 or early 2020 that their existing equipment is not part 96 compliant, and their filings describe the individual challenges encountered in procuring new equipment. See, e.g., Softcom Internet Comm’ns, Inc., Request for Limited Waiver, ULS File No. 0009252825 (filed Oct. 6, 2020). Licensees asserted that the process of ordering, receiving, programing, and installing replacement equipment could not be completed by the October 17, 2020 deadline. They advised that equipment was often delivered late, and, in some cases, has not arrived yet because demand for part 96 equipment exceeds supply. See, e.g., Southern Ohio Comm’n Servs., Request for Limited Waiver, ULS File No. 0009243713 (filed Sept. 29, 2020); North Coast Wireless Comm’ns, LLC, Request for Waiver, ULS File No. 0009249140 (filed Oct. 2, 2020). The COVID-19 pandemic has interrupted the supply chain by hampering vendor manufacturing capabilities and by causing a surge in shipping delays. See, e.g., Visionary Commc’n Inc. and SkyWerx Industries, LLC, Request for Waiver, ULS File No. 0009219129 (filed Sept. 11, 2020); Colorado Central Telecom, Inc., Petition for Waiver, ULS File No. 0009242630 (filed Sept. 28, 2020). Moreover, several licensees were impacted by natural disasters, including wildfires and hurricanes, that halted or impaired operations and required resource diversion. See, e.g., Arizona Pub. Serv., Petition for Waiver, ULS File No.0009226208 (filed Sept. 17, 2020); Donna J. Olson, Petition for Waiver, ULS File No. 0009260889 (filed Oct. 13, 2020); Cal-Ore Comm’n, Inc., Petition for Temporary Waiver, ULS File No. 0009247011 (filed Oct. 1, 2020). 11. Specific Steps. The licensees also explained the specific steps that they will take to complete the transition expeditiously from part 90 to part 96 operations. For instance, the licensees described what equipment they still need to replace, when they expect to be able to replace it, how they plan to hire additional employees and contractors to increase workload capacity, and what they will do to respond to potential delays caused by events like severe weather and employee illness. See, e.g., JAB Wireless, Inc., on behalf of Air Canopy Internet Servs., Petition for Limited Waiver, ULS File No. 0009228727 (filed Sept. 18, 2020); W.A.T.C.H. TV Company, Request for Limited Waiver, ULS File No. 0009260171 (filed Oct. 13, 2020). 12. We find that, in several cases, licensees are likely to be able to complete the remaining transition steps earlier than their requested extension periods. For example, Colorado Central Telecom, Inc. requested a waiver until December 31, 2020, notwithstanding the fact that it received replacement CPE hardware in late August, merely stating—without further detail—that it “fully expects that its Part 96 transition will be completed by December 31, 2020.” Colorado Central Telecom, Inc., Petition for Waiver at 2, 7, ULS File No. 0009242630 (filed Sept. 28, 2020). Visionary Communications, Inc. and SkyWex Industries, LLC (collectively, Visonary) have similarly requested an extension until December 31, 2020 to complete the transition and outlined several steps that they will take during November and December to complete the transition. Visionary Commc’n Inc. and SkyWerx Industries, LLC, Request for Waiver at 13-14, ULS File Nos. 0009219129 and 0009219184 (filed Sept. 11, 2020); see also ACS Wireless License Sub., LLC, Alaska Comm’ns, Petition for Extension of License Term and Waiver of Commission Rules at 1, ULS File No. 000956689 (filed Oct. 9, 2020) (seeking relief to continue operating Wireless Broadband Service radios “until they are replaced, which will occur no later than the end of 2020.”). Visionary does not explain with specificity what actions would fall in the last 15 days of the month and we are doubtful that the necessary work could not be completed prior to December 16. Indeed, it is worth noting that, in its initial waiver request filed earlier this year, Visionary “stated its belief that it would take until April 17, 2021 to complete the transition process.” Visionary Commc’n Inc. and SkyWerx Industries, LLC, Request for Waiver at 6, ULS File Nos. 0009219129 and 0009219184 (filed Sept. 11, 2020). 13. In conclusion, we find that the limited extensions of time we grant in this Order strike an appropriate balance between affording licensees additional time to complete their transitions to part 96-compliant equipment (in light of their good faith efforts to date and unique circumstances, as presented in their waiver requests) while encouraging licensees to act with appropriate diligence and not creating incentives for undue delay. IV. ORDERING CLAUSES 14. Accordingly, pursuant to Sections 1, 2, 4(i), 4(j), 302a, 303, 304, 307(e), 308(a), and 316 of the Communications Act, as amended, 47 U.S.C. §§ 151, 152, 154(i), 154(j), 302a, 303, 304, 307(e), 308(a), and 316, and Sections 0.131, 0.331, 1.3, and 1.925 of the Commission’s rules, 47 CFR.§§ 0.131, 0.331, 1.3, and 1.925, the waiver requests listed in Appendices A and B are GRANTED to the extent described above and are otherwise DENIED. The part 90 wireless broadband licensees listed in Appendix A are hereby granted a limited waiver of the transition period in Sections 90.1307, 90.1311, 90.1338, and 96.21 of the Commission’s rules, 47 CFR §§ 90.1307, 90.1338(a), and 96.21, until December 16, 2020. The part 90 wireless broadband licensees listed in Appendix B are hereby granted a limited waiver of the transition period in Sections 90.1307, 90.1311, 90.1338, and 96.21 of the Commission’s rules, 47 CFR §§ 90.1307, 90.1338(a), and 96.21, until February 14, 2021. The expiration date of affected licenses will be modified, where necessary, to reflect this limited waiver. FEDERAL COMMUNICATIONS COMMISSION Donald K. Stockdale Chief Wireless Telecommunications Bureau Federal Communications Commission DA 20-1230 APPENDIX A Transition Date Extended to December 16, 2020 ULS File Number Call Sign Licensee 0009243713 WQLU282 Southern Ohio Communication Services, Inc. 0009260419 WQLN535 Q-Wireless, LLC 0009260171 WQNB971 W.A.T.C.H. TV Company 0009259590 WQIX997 Virginia Everywhere, LLC 0009242630 WQTJ623 Colorado Central Telecom Inc. 0009219129 WQIS540 SkyWerx Industries, LLC 0009219184 WQJK717 Visionary Communications, Inc 0009256689 WQKR607 ACS Wireless License Sub, LLC 0009261361 WQLX338 Internet Communications Inc. APPENDIX B Transition Date Extended to February 14, 2021 ULS File Number Call Sign Licensee 0009236244 WQLL491 Worrell Enterprises LLC 0009258859 WQKF909 Cloudburst9 LLC 0009252825 WQIG223 Softcom Internet Communications, Inc. 0009226208 WQKM394 Arizona Public Service Company 0009237301 WQHW752 Neptunomedia, Inc. 0009247011 WQLL480 Cal-Ore Communications 0009260889 WQHX870 Olson, Donna J 0009218036 WQOA482 Southeast Colorado Power Association 0009249140 WQLB653 North Coast Wireless Communications LLC 0009250640 WQLM532 SmarterBroadband Inc. 0009258883 WQJT704 Country Wireless LLC 0009261808 WQKH680 Minnesota Valley TV Improvement Corporation 0009228727 WQIP473 Air Canopy Internet Services Inc. 0009228752 WQJI704 Air Canopy Internet Services Inc. 0009228831 WQJC234 Digis, LLC. 0009228880 WQLU285 Essex Telcom, Inc. 0009228869 WQJA669 Essex Telecom, Inc 0009229003 WQLX341 Essex Telecom, Inc 0009228898 WQJC216 LP Broadband 0009228971 WQJC241 LP Broadband 0009228893 WQIX998 LP Broadband, Inc. 0009228944 WQJC236 LP Broadband, Inc. 0009228978 WQJE591 LP Broadband, Inc. 0009228986 WQJM423 LP Broadband, Inc. 0009229216 WQUQ272 Rhino Communications 0009229241 WQIU804 Skybeam Acquisition Corporation 0009229259 WQJA664 Skybeam Acquisition Corporation 0009229280 WQJA665 Skybeam Acquisition Corporation ULS File Number Call Sign Licensee 0009229294 WQMC623 Skybeam Acquisition Corporation 0009261192 WQQI560 Williamson Enterprise, LLC dba Winchester Wireless 0009262950 WQSG754 Avangrid Networks, Inc. 0009262621 WQMQ231 Exelon Energy 0009263037 WQVI978 Texoma Broadband Services, LLC 2