*Pages 1--5 from Microsoft Word - 6995.doc* Federal Communications Commission FCC 01- 63 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of PETROCOM LICENSE CORPORATION Applications For Extension and Modification Of Developmental Authority To Construct And Operate Facilities Using Multipoint Distribution Service and Instructional Fixed Service frequencies in the Gulf of Mexico ) ) ) ) ) ) ) ) ) File Nos. 50311- CM- P- 97 through 50315- CM- P- 97; 50317- CM- P- 97; 50319- CM- P-97; 50321- CM- P- 97; 50324- CM- P- 97 through 50333- CM- P- 97; 50335- CM- P- 97; 50336- CM- P- 97; 50314- CM- P- 98; 50349- CM- P- 98 through 50353- CM- P- 98 MEMORANDUM OPINION AND ORDER Adopted: February 15, 2001 Released: February 21, 2001 By the Commission: Commissioner Furchtgott- Roth issuing a statement. 1. The Commission has before it two applications for review filed by PetroCom License Corporation (“ PetroCom”) pursuant to Section 1.115 of the Commission's Rules. 1 PetroCom asks that the Commission review the action of the Mass Media Bureau (“ Bureau”), pursuant to delegated authority, denying PetroCom’s request for extension of its developmental authority to construct and operate facilities using Multipoint Distribution Service (“ MDS”) and Instructional Television Fixed Service (“ ITFS”) frequencies in the Gulf of Mexico. 2 In addition, PetroCom requests that the Commission review the Bureau’s action denying its application for interim operating authority and its request for special temporary authority to continue operation of its developmental system in the Gulf. 3 PetroCom has also filed an emergency request to stay the Bureau’s decision denying PetroCom’s request for special temporary authority and interim operating authority. 2. Background. On January 23, 1997, the Bureau first granted PetroCom’s predecessor, Gulf Coast MDS Service Company (“ Gulf Coast”), developmental authorizations to allow Gulf Coast to research and conduct tests regarding the technical feasibility and commercial viability of operating a wireless local loop (“ WLL”) system in the Gulf of Mexico using MDS and ITFS frequencies. 4 These 1 47 C. F. R. §§ 1.41, 1.44( e) and 1.115. 2 See Letter to Richard S. Myers, Esq., et al, from Charles E. Dziedzic, Assistant Chief, Video Services Division, Mass Media Bureau (May 15, 2000). 3 See Letter to Richard S. Myers, Esq., et al, from Charles E. Dziedzic, Assistant Chief, Video Services Division, Mass Media Bureau (August 15, 2000). 4 Authorization was granted pursuant to pursuant to 47 C. F. R. § 21.400. In addition, PetroCom petitioned for rulemaking to permit permanent licensing in the MDS Service and the ITFS Service for the Gulf, which is currently pending. See Amended Petition for Rulemaking to Amend Parts 21 and 74 of the Commission’s Rules (continued….) 1 Federal Communications Commission FCC 01- 63 2 developmental authorizations were limited to a period of one year. 47 C. F. R. § 21.404( a). The Bureau later granted PetroCom a one- year extension which expired on May 1, 1999. 5 PetroCom filed another request for an extension of its developmental authority for twenty- five sites in the Gulf on April 27, 1999. It also filed modification applications to relocate three of its stations, File Nos. 50328- CM- P- 97 (filed Feb. 11, 1999), 50321- CM- P- 97 (filed April 9, 1999), and 50332- CM- P- 97 (filed April 9, 1999). 3. On February 25, 1999, Shell Offshore Services Company 6 , Rig Telephones Inc. d/ b/ a Datacom, Barchow/ Coastel Operations, LLC, Sola Incorporated, and IWL Communications, Inc. (“ Petitioners”) filed a motion for cancellation of the developmental authorizations. Both PetroCom and the Petitioners filed numerous responsive pleadings. On May 15, 2000, the Bureau denied PetroCom’s request for extension of developmental authority for twenty- two separate platform sites (central and repeater stations) in the Gulf. PetroCom was given until August 15, 2000 to cease operation of existing services for its twenty- two sites. With regard to its three sites for which modification applications were outstanding, the Bureau granted PetroCom developmental authorization until November 15, 2000. 4. In denying PetroCom’s request for extension of developmental authority for twenty- two sites, the Bureau found that it would not be in the public interest to grant another developmental authorization for PetroCom to continue operation of its WLL system in the Gulf. The Bureau stated, “Although there may be technical problems which still need to be solved in running a system in the Gulf, PetroCom’s proposal goes beyond what is necessary to effectively study and analyze such technical issues. PetroCom has shown that a WLL system can be viable in the Gulf, and therefore, a move to commercialization of the spectrum and/ or system is appropriate.” On June 14, 2000, PetroCom filed an application for interim operating authority as well as a request for special temporary authority concerning its various developmental authorizations in the Gulf. On August 15, 2000, the Bureau denied PetroCom’s application for interim operating authority and its request for special temporary authority, finding that “PetroCom has not raised any new arguments to demonstrate emergency or extraordinary circumstances that would justify the issuance of interim operating authority or special temporary authority to continue servicing customers in the Gulf.” 5. Discussion. PetroCom has not specified, as required by our rules, any factors that warrant Commission reversal of the staff actions below. Instead, PetroCom essentially reiterates the matters alleged in its request for an extension of developmental authority, application for interim operating authority and its request for special temporary authority. 6. We find that the Bureau’s rulings were correct and that no basis exists to warrant reversal. We note that the Bureau’s engineering staff has reviewed PetroCom’s claims and determined that the technical issues presented by PetroCom have been resolved and that there is no evidence that further developmental testing in the Gulf is necessary. Moreover, the record indicates that customers in the Gulf have access to a full range of telecommunications services to satisfy their communications needs, including cellular, microwave and satellite services. PetroCom itself is licensed to provide such cellular, microwave (Continued from previous page) to Permit Licensing in the Multipoint Distribution Service and the Instructional Television Service for the Gulf of Mexico, RM- 9718 (Released: September 14, 1999). 5 See Letter to A. J. Wheelock from Sharon Bertelsen, Supervisory Attorney, MDS Section, Video Services Division, Mass Media Bureau (May 1, 1998). 6 Stratos Offshore Services Company is the successor in interest through acquisition of the telecommunications assets of Shell Offshore Services Company. 2 Federal Communications Commission FCC 01- 63 3 and satellite services. 7 In addition, Petitioners certify that, “If requested, they . . . can provide, with approximately 2 days notice, alternative communications service so that users of the developmental system can have a seamless transition to a new communications system.” 8 Based on the record before us, we agree with Petitioners that customers in the Gulf can receive service comparable to that of PetroCom’s developmental system. 7. Emergency Request for Stay. PetroCom has also filed a petition to stay the decisions denying PetroCom’s application for special temporary authority and its request for interim operating authority, pending decision of the applications for review. 9 Our decision today rejecting the arguments presented in PetroCom’s applications for review, however, moots the request for stay. 7 See PetroCom’s Emergency Request for Stay, p. 3 (October 12, 2000). 8 See Petitioner’s Opposition to Emergency Request for Stay, p. 6 (October 20, 2000). 9 PetroCom also filed an Emergency Motion for Stay of Agency Action and Petition for Writ of Mandamus on November 3, 2000 with the United States Court of Appeals for the District of Columbia. On November 14, 2000, the Court denied both the emergency motion for stay and the petition for writ of mandamus. See In re: PetroCom License Corporation, No. 00- 1464 (D. C. Cir. November 14, 2000). Subsequently, on November 15, 2000, PetroCom filed a Complaint for Declaratory and Injunctive Relief with the U. S. District Court for the Eastern District of Louisiana. Three weeks later, PetroCom filed a motion for a preliminary injunction, arguing that Section 558( c) of the Administrative Procedures Act, 5 U. S. C. § 558( c), permitted it to operate its WLL system pursuant to its developmental license until the Commission “makes a final ruling” on the pending applications for review. The Court granted the Motion for Preliminary Injunction and stated that PetroCom’s authority to resume its operations would “disappear” once the Commission ruled on PetroCom’s pending applications for review. See PetroCom v. FCC, Case No. 00- 3405 (E. D. La. January 19, 2001). Accordingly, based on the holding of this Memorandum Opinion and Order, PetroCom is to cease operation of all existing services for its sites in the Gulf immediately. 3 Federal Communications Commission FCC 01- 63 4 8. Accordingly, IT IS ORDERED that PetroCom’s applications for review ARE HEREBY DENIED and its emergency request for stay IS DISMISSED AS MOOT. PetroCom is to cease operation of all existing services for its sites in the Gulf immediately. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 4 Federal Communications Commission FCC 01- 63 SEPARATE STATEMENT OF COMMISSIONER FURCHTGOTT- ROTH In the Matter of Petrocom License Corporation Applications for Extension and Modification of Developmental Authority to Construct and Operate Facilities Using Multipoint Distribution Service and Instructional Fixed Service Frequencies in the Gulf of Mexico, Extension of Developmental Authorizations, File Nos. 50311- CM- P- 97, et. al., Pending Modification Applications, File Nos. 50321- CM- P- 97, et. al. (rel. February 21, 2001). I agree with today’s decision to deny Petrocom continued use of its experimental MMDS license in the Gulf of Mexico. Nonetheless I write separately to express my frustration with our delay in making MMDS spectrum commercially available in the Gulf. Petrocom’s predecessor filed for such relief five years ago. 10 Had we acted promptly on that petition, we could have spared ourselves the continued litigation and enforcement issues raised in proceedings like this one. At the end of the day, Petrocom simply wishes to provide service to the public. I believe our Gulf licensing delays have unfairly limited that ability. I look forward to a prompt resolution of their petition and an auction of these licenses. 10 See In the Matter of Amendment of Parts 21 and 74 of the Commission's Rules with Regard to Licensing in the Multipoint Distribution Service and the Instructional Television Fixed Service for the Gulf of Mexico, Petition for Rule Making of Gulf Coast MDS Service Company, RM 9718, May 21, 1996. 5