Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | FCC File No. 0000041472      |
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| PACIFIC MICROWAVE JOINT VENTURE  | ) |                              |
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| Request for Waiver of Section    | * |                              |
| 101.701(c) of the Commission's   |   |                              |
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ORDER

**Adopted: June 28, 2000 Released: June 30, 2000**

By the Chief, Public Safety & Private Wireless Division, Wireless
Telecommunications Bureau:

**I. INTRODUCTION**

1.  On November 17, 1999, Pacific Microwave Joint Venture (PMJV) filed
    an application for requesting Commission consent to the assignment
    of ten point-to-point common carrier microwave station licenses from
    Western Telecommunications, Inc. (Western) to PMJV. [^1] PMJV's
    application includes a request for a waiver of Section 101.701(c) of
    the Commission\'s Rules, 47 C.F.R. § 101.701(c).[^2] Section
    101.701(c) of the Commission's Rules requires that at least fifty
    percent of the customers on a common carrier microwave system used
    primarily to relay broadcast television signals not be affiliated
    with the licensee, and that the usage by such customers constitute
    at least fifty percent of the licensee's service (the 50-50
    affiliation requirement).[^3] For the reasons set forth herein, we
    deny the waiver request.

    **II. BACKGROUND**

2.  PMJV intends to use the subject point-to-point common carrier
    microwave systems currently owned by Western to relay broadcast
    television signals to various cable television systems in the areas
    of southern Oregon and northern California.[^4] PMJV requests a
    waiver of the 50-50 affiliation requirement because a large number
    of the current customers on the system will be affiliated with PMJV
    as of the completion of the proposed transaction.[^5]

3.  When the Commission established the 50-50 affiliation requirement,
    it determined that the development of common carriers serving the
    public should not be blocked or inhibited in the common carrier
    bands by the presence of persons serving principally their own
    businesses, given that there are other frequencies allocated for
    such activity.[^6] The Commission stressed that it was not in the
    public interest to allow persons serving principally their own
    businesses to "tak\[e\] up" common carrier frequencies.[^7] The
    Commission also stated that it would be inconsistent with the public
    interest to allow the common carrier bands to be utilized by those
    demonstrating no overall public need for use of the bands.[^8]

    **III. DISCUSSION**

4.  To obtain a waiver of the Commission's Rules, a petitioner must
    demonstrate either (a) that the underlying purpose of the rule would
    not be served or would be frustrated by application in the present
    case, and the grant of the requested waiver would be in the public
    interest; or (b) that, in view of the unique or unusual or unusual
    circumstances, application of the rule would be inequitable, unduly
    burdensome or contrary to the public interest, or the applicant has
    no reasonable alternative.[^9]

5.  PMJV appears to suggest that a waiver will not compromise the
    purpose of the 50-50 affiliation requirement because the stations at
    issue provide video programming to cable systems in thinly populated
    areas which would not be of interest to a common carrier not
    affiliated with PMJV's customers.[^10] We believe that a waiver
    will, indeed, compromise the purpose of the 50-50 affiliation
    requirement. The Commission specifically stressed that common
    carrier frequencies should not be used by persons serving
    principally their own business.[^11] Grant of the requested waiver
    of the 50-50 affiliation requirement would enable PMJV to serve
    principally its own business on the common-carrier frequencies. We
    are concerned that such result potentially would inhibit development
    of common carriers using these frequencies to serve the public and
    PMJV has not demonstrated sufficiently that this is not a likely
    consequence. Thus, we believe that application of the rule to PMJV
    would serve the underlying purpose of Section 101.701(c) of the
    Commission's Rules.

6.  Moreover, we are not persuaded that the population of the region, or
    the fact that the current path lengths cover significant distances,
    constitute unique or unusual circumstances warranting a waiver of
    the Commission's Rules. In fact, many common carrier microwave
    systems operate outside of large urban areas. As a result, the fact
    that path lengths cover significant distances, and thus would make
    conversion to Cable Antenna Relay Service (CARS) or Private
    Operational Fixed Point-to-Point Microwave Service (POFS) equipment
    costly, is not a circumstance unique to PMJV. Therefore, we are
    concerned that grant of a waiver in this case would in effect
    establish a policy of general applicability. We are "especially
    reluctant to grant a waiver when to do so would 'invite numerous
    other waiver requests which, if granted, would effectively
    circumvent the Commission's rulemaking function.'"[^12] PMJV was, or
    should have been, aware that the 50-50 affiliation requirement
    existed and would apply to its acquisition of Western's stations.
    Consequently, we do not believe that application of the rule would
    be inequitable or unduly burdensome in this case. In addition,
    contrary to PMJV's statement that it would be in the public interest
    to grant the waiver because otherwise its customers would
    temporarily lose television signals, we believe that it is possible
    for PMJV to make the necessary conversions without its customers
    temporarily losing television signals.

7.  We also find that PMJV has failed to demonstrate that there are no
    reasonable alternatives to utilizing common carrier frequencies to
    serve its own customers. PMJV contends that no other options exist
    to transmit the television signals if it is unable to use existing
    equipment.[^13] In this regard, it contends that conversion to CARS
    or POFS equipment is not an option because it would be prohibitively
    expensive and temporarily deprive its customers of television
    service. That these alternatives could cause PMJV to incur
    additional equipment costs is not, by itself, sufficient grounds for
    granting a waiver.[^14] Although PMJV may find it undesirable to
    expend additional funds to convert its system in order to comply
    with the Commission's Rules, we are not persuaded, based on the
    record before us, that converting to CARS or POFS is not a
    reasonable alternative. [^15] Further, we note that a conversion to
    CARS or POFS will afford PMJV the opportunity to upgrade a system
    that it has described as "old and specialized."[^16] Therefore, we
    believe that reasonable alternatives that are consistent with the
    Commission's Rules and in furtherance of the public interest are
    available to PMJV.

    **IV. CONCLUSION**

8.  Based on the record in this proceeding, we find that PMJV has failed
    to demonstrate that grant of a waiver of Section 101.701(c) of the
    Commission's Rules is warranted. PMJV's waiver request did not
    include a sufficient showing pursuant to Section 1.925(b)(3) of the
    Commission's Rules. Therefore, we deny PMJV's request for a waiver
    of Section 101.701(c).

    **V. ORDERING CLAUSES**

9.  Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission\'s Rules, 47 C.F.R. § 1.925, the
    Waiver Request filed by Pacific Microwave Joint Venture on November
    17, 1999, IS DENIED.

10. This action is taken pursuant to delegated authority granted under
    the provisions of Sections 0.131 and 0.331 of the Commission\'s
    Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety & Private Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^ *See* FCC File No. 0000041472 (filed Nov. 17, 1999). Pacific
    Microwave Joint Venture seeks assignment of the licenses for the
    following stations: KPN74 (Wolf Creek, Oregon), KPQ91 (Eugene,
    Oregon), KPQ92 (Cottage Grove, Oregon), KPQ99 (Ashland, Oregon),
    KPR20 (Keno, Oregon), KTG38 (Redding, California), KTG39 (Willow
    Creek, California), KTG46 (Dunsmuir, California), WMT382 (Medford,
    Oregon), and WPJD329 (Roseburg, Oregon).

[^2]: *See* FCC File No. 0000041472, Request for Waiver (filed Nov. 17,
    1999) (Waiver Request).

[^3]: 47 C.F.R. § 101.701(c).

[^4]: *Id*. at 1.

[^5]: Waiver Request at 1.

[^6]: Amendment of Parts 2, 21, 74, and 91 of the Commission's Rules and
    Regulations Relative to the Licensing of Microwave Radio Stations
    Used to Relay Television Signals to Community Antenna Television
    Systems, *First Report and Order and Further Notice of Proposed
    Rulemaking*, Docket No. 15586, 1 FCC 2d 897, 901 ¶ 16 (1965) (*First
    R&O*).

[^7]: *Id*.

[^8]: *Id*.

[^9]: 47 C.F.R. § 1.925(b)(3).

[^10]: *See* Waiver Request at 1.

[^11]: *First R&O,* 1 FCC 2d at 901 ¶ 16.

[^12]: Nextel Communications, Inc., *Order*, 14 FCC Rcd 11678, 11691 ¶
    31 (WTB 1999) (quoting Verilink Corp, *Memorandum Opinion and
    Order*, 10 FCC Rcd 8914, 8916 ¶ 6 (1995), *review pending* (filed
    Aug. 20 1999).

[^13]: *See* Waiver Request at 1.

[^14]: Country Cousins, Inc., *Order*, 14 FCC Rcd 19351, 19353 ¶ 6 (WTB
    PSPWD 1999); *see* Optel, Inc., *Order*, 14 FCC Rcd 3762, 3767 ¶ 12
    (WTB 1999).

[^15]: PMJV failed to present other alternatives, such as transmitting
    over a third party's facility.

[^16]: Waiver Request at 1.