Federal Communications Commission	FCC 18-104


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554


In the Matter of

COUNTY OF SAN BERNARDINO

and

LT-WR, LLC

Applications for Fixed Point-to-Point Microwave
License at San Bernardino, California

)
)
)
)
)
)
)
)
)


File No.: 0007055186
File No.: 0007055189


File No.: 0007058024
File No.: 0007058135

MEMORANDUM OPINION AND ORDER

Adopted:  July 24, 2018	Released:  July 25, 2018

By the Commission:


I. INTRODUCTION
1. On September 12, 2016, LT-WR, LLC (LT-WR) filed an Application for Review (AFR) See LT-WR, Application for Review, File Nos. 0007055186, 0007055189, 0007058024, and 0007058135 (filed Sept. 12, 2016) (AFR).  San Bernardino filed an Opposition to Application for Review on September 27, 2016 (San Bernardino, Opp’n to AFR, File Nos. 0007055186, 0007055189 (filed Sept. 27, 2016) (Opp’n).  On October 13, 2016, LT-WR filed a Reply to Opposition to Application for Review.  Reply to Opp’n to AFR, File Nos. 0007055186, 0007055189 (filed Oct. 13, 2016) (Reply).  We note that this Reply was untimely.  See 47 CFR § 1.115(d) (requiring that replies to oppositions “shall be filed within 10 days after the opposition is filed”).  On our own motion, we waive this procedural requirement and consider the content of LT-WR’s Reply to facilitate resolution of this proceeding on a full record. 
 and a Contingent Petition for Reconsideration (Contingent PFR),  LT-WR, Contingent Petition for Reconsideration, File Nos. 0007058024, 0007058135 (filed Sept. 12, 2016) (Contingent PFR).  LT-WR’s Contingent PFR requests the grant of LT-WR’s previously dismissed applications.  LT-WR acknowledges that its Contingent PFR should be granted only if its AFR is granted.  Because we deny LT-WR’s AFR, we also dismiss LT-WR’s Contingent PFR as moot. 
 asking the Commission to review a Reconsideration Order County of San Bernardino Application for Fixed Point-to-Point Microwave License at San Bernardino, California, Order on Reconsideration, 31 FCC Rcd 8814 (PSHSB/WTB 2016) (Reconsideration Order).
 by the Public Safety and Homeland Security Bureau (PSHSB) and the Wireless Telecommunications Bureau (WTB) (collectively, the Bureaus) and to reconsider the dismissal of two of LT-WR’s microwave applications.  The Reconsideration Order denied LT-WR’s Petition for Reconsideration, LT-WR, Petition for Reconsideration, File Nos. 0007055186, 0007055189 (filed Feb. 8, 2016) (PFR).
 which challenged PSHSB’s decision to grant microwave applications filed by the County of San Bernardino, California (San Bernardino) See FCC File Nos. 0007055186 (filed Dec. 7, 2015, and amended Dec. 28, 2015) re WNER235 and 0007055189 (filed Dec. 7, 2015, and amended Dec. 28, 2015) re WPOS447.  The FCC granted San Bernardino’s applications on February 2, 2016.
 and to dismiss LT-WR’s competing applications. Reconsideration Order, 31 FCC Rcd at 8821, para. 28 (dismissing LT-WR’s applications, FCC File Nos. 0007058024 and 0007058135).
  For the reasons discussed below, we deny LT-WR’s AFR and dismiss its Contingent PFR as moot. 
II. BACKGROUND
2. Part 101 of the Commission’s rules requires an applicant for microwave frequencies to complete frequency coordination before filing an application. 47 CFR § 101.103.  
  To complete frequency coordination, the applicant must (1) provide detailed information concerning the proposed operation for each desired microwave link or path, (2) notify other licensees and applicants for licenses of the applicant’s proposed operations, (3) make reasonable efforts to resolve any conflicts, and (4) certify to the Commission that the proposed operation has been coordinated. 47 CFR. § 101.21(f) (“All applicants for regular authorization must, before filing an application, major amendments to a pending application, or modifications to a license, prior coordinate the proposed frequency usage with existing users in the area and other applicants with previously filed applications in accordance with the procedures in §101.103.”).
  After successfully completing microwave frequency coordination, the applicant may then file a license application with the Commission. 47 CFR. § 101.103(d)(2).
  
3. To initiate frequency coordination, an applicant’s frequency coordinator issues a prior coordination notice (PCN), which reserves the frequency and initiates a 30 day coordination period with other coordinators and potential applicants. 47 CFR § 101.103(d)(1)-(2).  The PCN is also the mechanism by which an applicant or potential applicant provides technical information to existing users and other potential applicants.  The PCN triggers a 30 day period during which other coordinators and applicants can object.  If no one objects during the 30 day period, then the coordination process will be deemed to be completed and the applicant may file its application.  47 CFR § 101.103(d)(2)(v) (“If no response to notification is received within 30 days, the applicant will be deemed to have made reasonable efforts to coordinate and may file its application without a response[.]”).
  The applicant has six months from the initiation of coordination to file an application, or it can extend the frequency reservation by renewing the PCN for additional six month periods. Potential applicants can assume that the reserved frequency is no longer needed unless the frequency is renewed within 10 days of the end of the 6-month period.  Parties are also required to keep other parties with whom they are coordinating advised of changes in plans for facilities previously coordinated.  47 CFR § 101.103(d)(2)(xi).
  However, even if an applicant reserves a frequency for future use, this does not cut off the rights of other applicants.  An applicant that reserved a frequency by PCN must release that frequency to another applicant that claims priority by showing that it needs the channel immediately and that no alternative frequency is available. 47 CFR § 101.013(d)(2)(xii) (“Any frequency reserved by a licensee for future use in the bands subject to this part must be released for use by another licensee, permittee or applicant upon a showing by the latter that it requires an additional frequency and cannot coordinate one that is not reserved for future use.”).
  
4. On June 20, 2014, San Bernardino’s coordinator, Comsearch Frequency Protection Services (CFPS), issued a PCN to add frequency pair 10.875/11.365 GHz (the Contested Frequencies) to its existing microwave stations at Rialto East (call sign WNER235) and San Sevaine (call sign WPOS447).  On December 16, 2014, CFPS, on behalf of San Bernardino, renewed this PCN for six months.  On March 31, 2015, CFPS, on behalf of San Bernardino, submitted a major change PCN for this frequency pair, which was subsequently renewed on September 2, 2015.   
5. On November 20, 2015, LT-WR, through its frequency coordinator, Consolidated Spectrum Services (Consolidated) initiated a PCN for the contested frequency pair to add the pair to LT-WR’s existing microwave stations at Nob Hill (WQKK874) and San Sevaine (WQOJ846).  While San Bernardino states that it did not receive any objections or interference complaints regarding its proposed use of the contested frequency pair, The Bureaus set forth the procedural history of this matter in the Reconsideration Order, 31 FCC Rcd at 8814-5, paras. 2-6; the parties do not contest the history.  
 on November 24, 2015, CFPS, on behalf of San Bernardino, notified Consolidated that the LT-WR PCN created frequency conflicts.  On November 25, 2015, Consolidated, on behalf of LT-WR, responded to CFPS’s objection.  It advised CFPS that LT-WR had an immediate need for the frequency pair and alleged that, because San Bernardino’s PCN was a renewal PCN, LT-WR had priority. Consolidated made two subsequent modifications to its PCN.  However, on December 8, 2015, CFPS, on behalf of San Bernardino, informed Consolidated that the modifications did not cure the frequency conflict. 
  
6. On December 7, 2015, San Bernardino filed two applications to modify its licenses for call signs WNER235 and WPOS447.  On December 9, 2015, LT-WR filed applications with the FCC to add the contested frequency pairs to LT-WR’s existing microwave stations at Nob Hill (WQKK874) and San Sevaine (WQOJ846). FCC File Nos. 0007058024 and 0007058135.
  On December 28, 2015, San Bernardino filed an amendment to its applications seeking to use the contested frequency pair. FCC File Nos. 0007055186 and 0007055189.
  
7. On February 2, 2016, PSHSB granted San Bernardino’s applications, thereby denying LT-WR’s applications.  On February 8, 2016, LT-WR filed a timely Petition for Reconsideration (PFR) of the grant. On February 18, 2016, San Bernardino filed an Opposition to the Petition for Reconsideration.  On March 1, 2016, LT-WR filed a Reply to Opposition to Petition for Reconsideration.
  In its PFR, LT-WR contended that it had a priority claim on the Contested Frequencies because it filed its applications “nearly three weeks” prior to San Bernardino’s amended applications, and because San Bernardino acted in bad faith by failing to inform LT-WR of its intent to file an amendment to its application. PFR at 3, 7-8.  
  
8. Reconsideration Order.  In a joint reconsideration order released on August 12, 2016, the Bureaus affirmed PSHSB’s grant of San Bernardino’s applications. Reconsideration Order, 31 FCC Rcd at 8819, para. 25.
  The Bureaus rejected LT-WR’s claim of priority for the Contested Frequencies because they found that LT-WR had failed to comply with the Commission’s frequency coordination rules before filing its applications. Id., paras. 21-22.
  Specifically, the Bureaus found that when LT-WR filed its applications, it was on notice of San Bernardino’s conflicting claim for the Contested Frequencies.  Therefore, the Commission’s rules required LT-WR to either (1) resolve the conflict, or (2) include a statement with its applications that it was unable or unwilling to resolve the conflict and the reason therefor. Id., paras. 21-24.
  The Bureaus found that LT-WR failed to do either, and that its failure to conform to the frequency coordination rules rendered its applications incomplete and “unacceptable ab initio.” Id., para. 25.
  In so holding, the Bureaus rejected LT-WR’s argument that this matter is governed by Geodesic Networks, LLC. Geodesic Networks, LLC, Memorandum Opinion and Order and Order on Reconsideration, 29 FCC Rcd 10429 (WTB 2014) (Geodesic).
  In Geodesic, WTB addressed a microwave frequency coordination dispute that involved facts similar to, but not identical to, those here. Id., 29 FCC Rcd 10431, para. 9 citing 47 CFR § 101.103(d)(2)(xii).
  In Geodesic, one party, Auburn, mailed a PCN to licensees and applicants who could be affected by Auburn’s proposal, and Auburn renewed its PCN four times.  The other party, Geodesic, through its frequency coordinator, sent a PCN for the same frequencies and requested an expedited response from Auburn, stating that if a response were not received within 15 days, it would assume that there were no objections.  Auburn did not respond within the 15 days.  Thereafter Geodesic sent another PCN to make minor modifications to its initial proposal, to which Auburn also did not respond.  Geodesic then filed applications for the paths contained in its PCNs.  On the same day that Geodesic filed its applications, Auburn wrote Geodesic claiming that Geodesic’s facilities would cause interference to the facilities that Auburn had specified in its PCNs.  Geodesic responded that (a) it had an immediate need for the frequencies; (b) that Auburn’s PCN had been renewed for two years without Auburn filing an application; and (c) requested that Auburn relinquish the frequencies.  WTB granted Geodesic’s applications.  It found that, although Auburn had a PCN, it had failed to respond to Geodesic’s PCN, and that under section 101.103(d)(2)(xii), See supra n.12.
 Auburn had to honor Geodesic’s request for the frequencies. Geodesic, 29 FCC Rcd at 10434, para. 15.  
 
9. In its PFR, LT-WR asserted that Geodesic stands for the premise that a licensee with “unused ‘growth’ channels contained in repeated renewal PCNs must relinquish those channels to an applicant having immediate need and that applies for a license to put the spectrum to actual use.” Reconsideration Order, 31 FCC Rcd at 8816, para 8. 
  In the Reconsideration Order, the Bureaus distinguished Geodesic because Geodesic—the party seeking the relinquishment of the channels—had completed frequency coordination before filing its application.  In the instant case, the Bureaus found, LT-WR did not complete frequency coordination, hence its application was incomplete, unacceptable for filing, and, therefore not mutually exclusive with San Bernardino’s application. Id., at 8818-19, paras. 19-21.
  
10. In the Reconsideration Order, the Bureaus found that when LT-WR began the PCN process for the contested frequency pair, it failed to make a showing that it required an additional channel pair, and additionally failed to provide information about whether it could coordinate a separate channel that was not reserved for future use.  Instead, LT-WR merely claimed that it had a superior need for the channel pair, an assertion which the Bureaus decided did not rise to the level of the showing contemplated by the rule.  That LT-WR subsequently informed San Bernardino that a channel pair might exist that San Bernardino could use did not satisfy the rule’s requirement that LT-WR demonstrate that it could not coordinate a pair that was not reserved for future use. Id., at 8819, para 23.
  
11. The Bureaus found that since LT-WR did not comply with either provision of Section 101.103(d)(2)(xii), LT-WR could not require San Bernardino to relinquish its growth channels merely by filing an application. Id., para. 24.  The Bureaus noted that, because they found that LT-WR failed to show that it could not coordinate a channel that was not reserved for future use, they need not address whether the mere assertion of need is a sufficient showing for the purposes of Section 101.103(d)(2)(xii).  Id. at n.51.
  Therefore, the Bureaus found that San Bernardino’s and LT-WR’s applications remained in conflict, and Section 101.103(d)(2)(vii) required the parties to resolve all technical problems that came to light during coordination.  47 CFR § 101.013(d)(2)(vii).
  Failing that, LT-WR needed to include a statement with its application to the effect that it was unable or unwilling to resolve the conflict and briefly state the reason therefor. Id.
  Since it did not do so, the Bureaus found that LT-WR failed to properly coordinate its application.
12. LT-WR’s AFR.  In its timely-filed AFR, LT-WR designates three questions for review:  (1) whether Geodesic obliges an incumbent licensee of growth channels to act in good faith when a new applicant expresses an immediate need for those channels; (2) whether a licensee with a challenged renewal PCN for growth channels must do more than object to a new applicant; and (3) whether the Bureaus erroneously refused to invoke Geodesic in light of San Bernardino’s alleged lack of good faith. AFR at 3-4 citing 47 CFR § 1.115(b)(1).  
   
13. LT-WR’s primary argument appears to be that Geodesic establishes a principle requiring a licensee reserving spectrum by means of successive renewal PCNs to negotiate a coordination agreement in good faith with a party seeking access to that spectrum. AFR at 6.
  LT-WR submits that pursuant to Section 1.115(b) of the Commission’s rules, the full Commission should review the Reconsideration Order because the Bureaus’ decision conflicts with established Commission policy, involves a question of law or policy which has not previously been resolved by the Commission, is based in part on erroneous factual findings or assumptions, and results in prejudicial procedural error. Id. at 4 citing 47 CFR § 1.115(b)(2).

14. San Bernardino contends that the Bureaus’ order correctly distinguishes Geodesic and is consistent with the Commission’s long-established frequency coordination requirements. Opp’n at 8, 13.
  It asserts that finding otherwise “would turn the entire frequency coordination process on its head.” Id. at 8.
  San Bernardino also observes that LT-WR never challenged any of San Bernardino’s four PCNs, which all listed the Contested Frequencies. Id. at 11.
  San Bernardino argues that, because LT-WR failed to mount such a challenge, LT-WR cannot ask the Commission to review the test by which the Commission determines that a licensee is entitled to maintain a renewal PCN for growth channels. Id.; cf. AFR at 4.
  
III. DISCUSSION
A. The Bureaus’ decision did not conflict with established Commission policy nor did it involve a question of law or policy which has not previously been resolved by the Commission. 
15. We find that the Bureaus’ application of the frequency coordination rules in this case is consistent with the policy underlying those rules.  The rules require applicants to certify that they have made every effort to resolve competing claims before they file their applications with the Commission.  Section 101.103(d)(1) of the rules provides that “[p]roposed frequency usage must be prior coordinated with existing licensees, permittees and applicants in the area, and other applicants with previously filed applications, whose facilities could affect or be affected by the new proposal in terms of frequency interference on active channels, applied-for channels, or channels coordinated for future growth.  Coordination must be completed prior to filing an application for regular authorization, or a major amendment to a pending application, or any major modification to a license.” 47 CFR § 101.103(d)(1) (emphasis added).
  
16. The Commission adopted the first version of this rule in 1971. Specialized Common Carrier Services in the Domestic Public Point-to-Point Microwave Radio Service, First Report and Order, Docket No. 18920, 29 FCC 2d 870 (1971). 
  In adopting the rule the Commission expressed its belief that the coordination procedures would both reduce frequency conflicts that lead to the filing of petitions to deny applications, and enable carriers to use the limited frequencies more effectively. Id. at 930.  When it revised Part 21 in 1987, the Commission determined that requiring prior coordination reduced the number of contested applications and promoted spectrum efficiency.  Revision of Part 21 of the Commission's Rules, Report and Order, CC Docket 86-128, 2 FCC Rcd. 5712, 5715 (1987). 
  The frequency coordination rules are intended to prevent applicants from burdening Commission resources by short-cutting the coordination process before the parties have resolved, or attempted to resolve, contested issues themselves.  
17. In the Reconsideration Order, the Bureaus found that LT-WR did not satisfy this regulatory prerequisite of completing frequency coordination before filing its applications.  We agree.  The rules state that LT-WR was precluded from filing its applications unless it either 1) first completed frequency coordination, or 2) included “a statement” reflecting that it could not resolve the frequency conflict and the reason therefor. 47 CFR § 101.103(d)(2)(vii).
  LT-WR did not complete coordination or provide such a statement.  Therefore, its applications were incomplete and unacceptable for filing. 
18. While LT-WR argues that it did not follow our frequency coordination regulations because it had a “good faith belief that it had completed coordination,” the unchallenged record demonstrates that, before LT-WR filed its applications, CFPS, on behalf of San Bernardino, notified LT-WR twice that the frequency conflict was unresolved, including once on the day before LT-WR filed its applications. In its AFR, LT-WR states that when San Bernardino filed its amendment on Dec. 28, 2015, it represented that there were no unresolved interference complaints. AFR at 7.  In fact, however, when San Bernardino filed its amendment, it included a supplemental showing providing that there were no unresolved interference complaints as of Sept. 4, 2015. That statement was accurate when made, because LT-WR did not file its PCN until November 20, 2015.  Thus, more than two months elapsed between the time that San Bernardino made its “no unresolved interference complaints” representation and the time that LT-WR filed its PCN, which for the first time would have let San Bernardino know that an interference conflict existed.
  In other words, because LT-WR failed to resolve the frequency conflict created when it initiated the PCN process challenging San Bernardino’s renewal PCN for the contested frequency, San Bernardino did not have an obligation to relinquish the contested frequency or delay filing an application for the contested frequency.  Further, we find no evidence that San Bernardino “acted in bad faith,” as LT-WR suggests, by not informing LT-WR of its intent to file an amendment to its application. See supra para 7.
  The record demonstrates that CFPS, on behalf of San Bernardino, properly submitted its amended application to the Commission and also informed Consolidated that its own PCN modifications did not cure the frequency conflict. See supra paras 4-5, n.14.
  Our rules do not require parties to provide notice of an “intent to file.”  Accordingly, we find LT-WR’s argument unpersuasive.
19. We also do not find LT-WR’s argument tenable that it was not required to coordinate its application with San Bernardino’s application because the LT-WR application had priority and thus obviated any frequency conflict.  As the Bureaus noted in the Reconsideration Order, the Commission’s rules provide that frequency coordination is a condition precedent to any determination of priority. See supra para 9.
  LT-WR essentially asks us to reverse these priorities.  We note that the Geodesic decision on which LT-WR attempts to rely is a Bureau-level decision and as such does not bind us; however, nothing in the record before us convinces us that the Bureaus’ reading of Geodesic is inconsistent with our interpretation of the relevant rules.
20. Moreover, the Bureaus’ conclusions are consistent with long-standing frequency coordination precedent. Applications of Questar Infocomm, Inc., Order, 15 FCC Rcd 3684 (WTB 1999) (Questar).
  For example, in Questar Infocomm, Inc. (Questar), WTB dismissed Questar’s applications because Questar, in its application, (a) neither disclosed the technical conflict with the other applicant nor (b) stated that it was unable or unwilling to resolve the conflict and the reasons for its unwillingness or inability to do so. Id. at 3686-87.
  Questar thereby reinforces Geodesic, elucidating the principle that an application lacking coordination cannot prevail over an application for which coordination was accomplished. Id.
  Since the Bureaus’ Reconsideration Order followed this long-established reasoning in interpreting our rules, we reject LT-WR’s argument that review of the Bureaus’ decision is justified because it conflicts with our established policy or presents a novel question.
B. The Bureaus’ decision was not based on erroneous factual findings or assumptions.
21. We disagree with LT-WR that the Reconsideration Order relied on “an incomplete and inaccurate reading of the record.” AFR at 6.
  LT-WR lists “relevant facts that were either ignored by the delegated authorities or dismissed without adequate consideration.” Id. at 7-8.
  On review of the Reconsideration Order and the associated pleadings, we find that the Bureaus considered all information alleged by LT-WR as facts. The Bureaus’ order discussed these facts proffered by LT-WR:  San Bernardino’s successive use of renewal PCNs, Reconsideration Order, 31 FCC Rcd at 8814, para. 2; the Contested Frequencies’ absence on San Bernardino’s modification applications, cf. id. at 8815, para. 5; San Bernardino’s amendment of its applications after LT-WR filed its applications, id. at paras. 4-5; San Bernardino’s representation in those amendments that there were no unresolved interference complaints, cf. id. at 8816, para. 10; San Bernardino’s representation to the WTB that there was an interference issue that the parties were working to resolve, cf. id.; San Bernardino’s negotiations with LT-WR while moving to oppose LT-WR’s motions, cf. id. at 8814-15, 17, paras. 5, 10, 16; and LT-WR’s identification of alternative channels that San Bernardino could use, cf. id. at 8814-15, paras. 5, 9.
  Moreover, even crediting all of the information alleged as factual would not change our decision here.  LT-WR failed to comply with Section 101.103(d) of the Commission’s rules, thereby rendering its applications defective and undercutting its argument that it believed, in good faith, that it had complied with its obligation to effect coordination of its applications. See 47 CFR § 1.115(b)(2)(iii) (providing that “[a]n erroneous finding as to an important or material question of fact” constitutes grounds for Commission review).
  
22. The Bureaus also did not err in rejecting LT-WR’s interpretation of Geodesic.  As discussed above, the Bureaus considered the Geodesic decision and found that in that case the applicant asserting priority, Geodesic, had established priority pursuant to Section 101.103(d)(2)(vi) because it filed a PCN seeking expedited consideration and the other party, Auburn, did not honor the request for expedited consideration. Geodesic, 29 FCC Rcd at 10431-32 para 9.  See also Wireless Telecommunications Bureau's Broadband Div. & Pub. Safety & Homeland Sec. Bureau's Policy & Licensing Div. Issue Declaratory Ruling on Microwave Frequency Coordination & Seek Comment on Portion of Petition for Declaratory Ruling Filed by the Fixed Wireless Communications Coal., Inc., Public Notice, 30 FCC Rcd 355 (2015). 
  By contrast, LT-WR failed to establish priority in compliance with Section 101.103(d)(2)(xii) because it failed to include in its application a showing that it required an additional channel pair and an explanation of why it could not coordinate a pair that was not reserved for future use.
C. The Bureau’s decision did not result in prejudicial procedural error.
23. Finally, we find that LT-WR fails to show that the Bureaus’ decision resulted in prejudicial procedural error. 47 CFR § 1.115(b)(2)(iv); see AFR at 4.
  LT-WR provides no support for this argument in the AFR, and Section 1.115(b)(2) of the Commission’s rules requires that proponents asserting prejudicial procedural errors must specify such errors with particularity. 47 CFR § 1.115(b)(2).
  LT-WR merely makes a general allegation that the Bureaus’ actions resulted in prejudicial procedural errors without specifying the nature of such errors, and based on our review of the record we find no cause to question the Bureaus’ decision.
IV. ORDERING CLAUSE
24. Therefore, IT IS ORDERED, pursuant to Section (5)(c)(5) of the Communications Act of 1934, as amended, 47 U.S.C. § 155(c)(5) and Section 1.115(g) of the Commission’s rules, 47 CFR § 1.115(g), that LT-WR’s Application for Review is DENIED, and LT-WR’s Contingent Petition for Reconsideration is DISMISSED as moot. See supra n.2.


						FEDERAL COMMUNICATIONS COMMISSION




						Marlene H. Dortch
						Secretary

8