**DA 07-2172**

**May 24, 2007**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON REQUEST BY DAKOTA
CENTRAL TELECOMMUNICATIONS COOPERATIVE ET AL. FOR WAIVER OF THE
REQUIREMENT TO TRANSITION TO THE NEW BRS/EBS BAND PLAN AND FOR SPECIAL
TEMPORARY AUTHORITY TO OPERATE ON CERTAIN EBS CHANNELS IN BRUSH HILL,
NORTH DAKOTA**

**Comment Date: June 25, 2007 Reply Date: July 10, 2007**

Dakota Central Telecommunications Cooperative (DCTC), a provider of
multichannel video and high-power wireless broadband services over
licensed Broadband Radio Service (BRS) and licensed and leased
Educational Broadband Service (EBS) spectrum centered at Brush Hill,
North Dakota, together with EBS licensees Fessenden Public School,
Midkota Public School, Gackle/Streeter Public School,
Wimbledon/Courtenay Public School, Jamestown Public School,
Pingree/Buchanan Public School, Fessenden-Bowdon Public School, Tappen
Public School and Medina Public School (Brush Hill EBS Licensees), have
filed a joint request for permanent waiver of the requirement that all
BRS and EBS licensees transition to the new BRS/EBS band plan adopted in
the Commission's *Report and Order* in WT Docket No. 03-66.[^1] This
band plan is set forth in Section 27.5(i)(2) of the Commission's
Rules.[^2] DCTC has also filed a request for Special Temporary Authority
(STA) to utilize vacant EBS Channels C2, C3, and D3 to provide
Multichannel Video Programming Distributor (MVPD) and broadband services
from a transmit site located in Brush Hill, North Dakota.

In the *BRS/EBS R&O* and *FNPRM,* the Commission adopted a new band plan
in an effort to modernize and enhance our rules and policies governing
the licensing of the Educational Broadband Service (EBS) and the
Broadband Radio Service (BRS) in the 2495-2690 MHz band.[^3] Indeed, a
critical element of the *BRS/EBS R&O* and *FNPRM* is the adoption of a
market-oriented, transition mechanism that enables incumbent licensees
to develop regional plans for moving to new spectrum assignments in the
restructured band plan. The Commission, nevertheless, found that it is
in the public interest to consider case-by-case waivers of the
transition rules for a class of operators or their affiliates that: (1)
meet the definition of a multichannel video programming distributor as
defined in Section 522 of the Communications Act of 1934, as amended;
and (2) provide MVPD service to five percent or more of the households
within their respective geographic service areas (GSAs), as calculated
in accordance with the requirements of Section 76.905(c) of the
Commission's rules.[^4] The Commission further found that it is in the
public interest to consider waivers for any BRS or EBS licensee that is
collocated with any qualified MVPD licensee that seeks a waiver to
opt-out.[^5] The Commission further found that it is in the public
interest to consider waivers for those BRS licensees that have a viable
business for high-powered operations, but who need more than seven
digitized high-powered MBS channels to deliver their service to their
customers. The Commission stated that in reviewing requests to waive the
rules, the Commission would consider the actions taken by MVPD or BRS
licensees to minimize the effect of interference on neighboring markets,
as well as the licensee's explanation as to why it cannot work within
the transition rules. The Commission stated that waivers will be granted
if it is shown that: (i) the underlying purpose of the rules(s) would
not be served or would be frustrated by application to the instant case,
and that a grant of the requested waiver would be in the public
interest; or (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.[^6]

On April 25, 2007, DCTC and the Brush Hill EBS Licensees (collectively,
DCTC *et al.*) filed a joint request for waiver in order to opt out of
transitioning to the new band plan. DCTC *et al.* requests waiver of
Sections 27.1230 *et. seq.* of the Commission's Rules,[^7] and also
requests that the Commission issue certain clarifications. Specifically,
DCTC *et al.* requests that grant of the requested waiver specifically
state that:

> \(1\) DCTC and its channel lessors will have permanent authority to
> operate within the Brush Hill GSA pursuant to Section 27.1209 on the
> "pre-transition" BRS/EBS band plan set forth in Section 27.5(i)(2)(ii)
> and (iii);
>
> \(2\) Licensees and DCTC's channel lessors must participate in good
> faith in any transition planning process relating to any geographic
> area that overlaps their GSAs. In conjunction with any transition, the
> Licensees and DCTC's channel lessors will subsequently make such
> modifications to their facilities at the proponent's expense (unless
> otherwise agreed) as the proponent may reasonably request in an effort
> to reduce interference to licensees in other markets that are
> transitioning, provided that such modifications can be accomplished
> without cumulatively resulting in more than a *de minimis* reduction
> in DCTC's ability to serve its then-existing subscribers;
>
> \(3\) Every main, booster, and base station currently used in
> conjunction with the Licensees' systems shall be permitted to continue
> operating under the maximum EIRP limits set forth for "pre-transition"
> operations in Section 27.50(h)(1)(i) and (ii) until such time as the
> EBS licensees' facilities are migrated to an alternative system and
> after such time, every main, booster, and base station currently used
> in conjunction with DCTC's system shall be permitted to continue
> operating under the maximum EIRP limits set forth for "pre-transition"
> operations in Sections 27.50(h)(1)(i) and (ii) on the
> "post-transition" BRS/EBS band plan set forth in Sections
> 27.5(i)(2)(ii) and (iii);
>
> \(4\) Any channels used for the transmission of digital video
> programming on DCTC's system shall be permitted to continue operating
> under the "pre-transition" emission limits for digital video
> programming channels set forth in Section 27.53(l)(3);
>
> \(5\) Consistent with Section 27.55(a)(4)(i), all of the BRS and EBS
> channels in DCTC's Brush Hill system will be permitted to operate at
> any point along their respective GSA boundaries at the greater signal
> strength of 47 dBu or the strength authorized in their underlying
> licenses as of January 10, 2005;
>
> \(6\) Sections 27.1220 (regarding 5.5 MHz wide channels in the UBS)
> and 27.1222 (regarding the establishment of guard bands around the
> MBS) shall not be applicable to DCTC and its channel lessors operating
> on the "post transition" BRS/EBS band plan set forth in Sections
> 27.5(i)(2)(ii) and (iii); and
>
> \(7\) DCTC and its channel lessors shall not be subject to the height
> benchmarking obligations set forth in Section 27.1221.
>
> \(8\) Upon replacement of their existing point-to-point EBS
> facilities, the licensees of two of the EBS point-to-point stations
> will, consistent with the spectrum plan depicted in Appendix C, swap
> or assign (subject to Commission approval) the licenses so that they
> are licensed on channels A4 and B4 as designated by the
> "post-transition" BRS/EBS band plan set forth in Section
> 27.5(i)(2)(ii);
>
> \(9\) Upon replacement of their existing point-to-point EBS
> facilities, the licensees of the remaining seven EBS point-to-point
> stations will make available their channels for excess capacity lease
> at nominal consideration to the holder of the BTA authorization where
> their licensed GSA center point is situated. If the holder of the BTA
> authorization does not desire to lease any or all of the excess
> capacity on such stations, such licensees will submit their
> authorizations for cancellation; and
>
> \(10\) The two EBS licensees that migrate to MBS channels A4 and B4
> will apply to the Commission to conform their GSAs to the GSA of the
> channels that compose DCTC's MVPD system, and will request waiver of
> the Commission's rules to the extent necessary.

As mentioned above, on April 23, 2007, DCTC filed a request for an STA
to utilize vacant EBS channels C2, C3 and D3 within a 35-mile GSA
centered on the coordinates N. Lat. 47-13-41.0 and W. Long. 99-12-02.0
to provide MVPD and broadband services from a transmit site located in
Brush Hill, North Dakota. DCTC asserts that it has been utilizing vacant
EBS channel C2 since approximately 1994, and vacant EBS channels C3 and
D3 since 2001, and it was unaware that it was conducting such operations
without Commission authorization. DCTC currently has about 585
subscribers for the local programming it provides on channel C2, and 265
broadband subscribers receiving downstream transmissions on channels C3
and D3. The STA is requested for an initial period of six months so that
DCTC will be able to continue to provide MVPD and broadband service to
its customers until the Brush Hills, North Dakota GSA transition is
completed and the existing services on the unlicensed spectrum can be
migrated to authorized spectrum.

Interested parties may file comments on the waiver request and/or the
STA request on or before **June 25, 2007**. Parties interested in
submitting reply comments must do so on or before **July 10, 2007**.

All comments should reference the subject waiver request and/or STA
request, including the DA number of this Public Notice, and should be
filed with the Office of the Secretary, Federal Communications
Commission, 445 12^th^ Street SW, TW-A325, Washington DC 20554. This
address for FCC locations should be used only for documents filed by
United States Postal Service first-class mail, Express Mail, and
Priority Mail. Hand-delivered or messenger-delivered documents for the
Commission's Secretary are accepted only by the Commission's contractor,
Natek, Inc., at 236 Massachusetts Avenue NE, Suite 110, Washington DC
20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All
hand deliveries must be held together with rubber bands or fasteners.
Any envelopes must be disposed of before entering 236 Massachusetts
Avenue NE. Other messenger-delivered documents, including documents sent
by overnight mail (other than United States Postal Service Express Mail
and Priority Mail) should be addressed for delivery to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
See FCC Announces a New Filing Location for Paper Documents and a New
Fax Number for General Correspondence, *Public Notice*, 16 FCC Rcd 22165
(2001).

The full text of the waiver request, STA request, comments, and reply
comments will be available for inspection and duplication during regular
business hours in the FCC Reference Information Center (RIC) of the
Consumer and Government Affairs Bureau, Federal Communications
Commission, 445 12^th^ Street SW, Room CY-A257, Washington DC 20554.
Copies also may be purchased from the Commission's duplicating
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12^th^
Street SW, Room CY-B402, Washington DC 20554. Customers may contact BCPI
through its web site, [http://www.bcpiwed.com](http://www.bcpiwed.com/),
by e-mail at fcc@bcpiwebcom, by phone at (202) 488-5300 or (800)
378-3160, or by facsimile at (202) 488-5563. For further information
regarding the public reference file for this waiver request, contact
Maria Ringold, Chief, Wireless Branch, RIC, (202) 418-1355.

Unless otherwise provided, requests for waiver of the Commission's Rules
are subject to treatment by the Commission as restricted proceedings for
*ex parte* purposes under Section 1.1208 of the Commission's Rules, 47
C.F.R. § 1.1208. Because of the policy implications and potential impact
of this proceeding on persons not parties to the waiver request, we
believe it would be in the public interest to treat this case as a
permit-but-disclose proceeding under the *ex parte* rules. See Sections
1.1200(a), 1.1206 of the Commission's Rules, 47 C.F.R. §§ 1.1200(a),
1.1206. Therefore, subsequent to the release of this Public Notice, *ex
parte* presentations that are made with respect to the issues involved
in the subject waiver request will be allowed but must be disclosed in
accordance with the requirements of Section 1.1206(b) of the
Commission's Rules, 47 C.F.R. § 1.1206(b).

For further information, contact Genevieve Ross, Broadband Division,
Wireless Telecommunications Bureau at (202) 418-1305, or by e-mail at
<Genevieve.Ross@fcc.gov>.

By the Chief, Broadband Division, Wireless Telecommunications Bureau.

> \- FCC -

[^1]: *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, *Report and Order and Further Notice of
    Proposed Rulemaking,* WT Docket No. 03-66, 19 FCC Rcd 14165 (2004)
    (*BRS/EBS R&O* and *FNPRM*), *affirmed in pertinent part* by *Order
    on Reconsideration and Fifth Memorandum Opinion and Order and Third
    Memorandum Opinion and Order and Second Report and Order*, 21 FCC
    Rcd 5606 (2006).

[^2]: 47 C.F.R. § 27.5(i)(2).

[^3]: *BRS/EBS R&O and FNPRM*.

[^4]: 47 CFR § 76.905(c). The original proposal to permit MVPDs to opt
    out of the transition was presented to the Commission by the
    Wireless Communications Association, International, the Catholic
    Television Network, and the National ITFS Association in October
    2002. *See generally* A Proposal for Revising the MDS and ITFS
    Regulatory Regime, RM-10586 (filed Oct. 7, 2002). As adopted, the
    *BRS/EBS R&O* and *FNPRM* significantly altered that proposal.

[^5]: *BRS/EBS R&O*, 19 FCC Rcd 14165, 14199 ¶ 77.

[^6]: 47 C.F.R. § 1.925(b)(3).

[^7]: 47 C.F.R. § 27.1230 *et. seq.*