Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. 0002939453          |
|                                  | *) |                              |
| SPEEDUSNY.COM                    | ** | File No. 0002968483          |
|                                  |    |                              |
| Request for Finding of           | *  | File Nos. 0002468832;        |
| Substantial Service for Local    | *) | 0002468846                   |
| Multipoint Distribution Service  | ** |                              |
| (LMDS) Station WLT379, New York, |    |                              |
| New York                         | *  |                              |
|                                  | *) |                              |
| Contingent Request for Waiver of | ** |                              |
| Section 101.1011 of the          |    |                              |
| Commission's Rules or, in the    | *  |                              |
| Alternative, Extension of Time   | *) |                              |
| to Demonstrate Substantial       | ** |                              |
| Service for Local Multipoint     |    |                              |
| Distribution Service (LMDS)      | *  |                              |
| Station WLT379, New York, New    | *) |                              |
| York                             | ** |                              |
|                                  |    |                              |
| IDT SPECTRUM, LLC                | *  |                              |
|                                  | *) |                              |
| Request for Waiver and Extension | ** |                              |
| of Time of Section 101.1011 of   |    |                              |
| the Commission's Rules or, in    | *  |                              |
| the Alternative, a Finding of    | *) |                              |
| Substantial Service for Local    | ** |                              |
| Multipoint Distribution Service  |    |                              |
| (LMDS) Station WPOI485, New      | *  |                              |
| York, New York                   | *) |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER AND ORDER ON RECONSIDERATION**

**Adopted: July 31, 2007 Released: July 31, 2007**

By the Chief, Wireless Telecommunications Bureau:

# INTRODUCTION

1.  We have before us an application filed by SpeedUSNY.com, L.P.
    (SpeedUSNY) on March 7, 2007 seeking to demonstrate that Local
    Multipoint Distribution Service (LMDS) Station WLT379 is providing
    "substantial service" within its licensed area,[^1] and an
    alternative request filed by SpeedUSNY on March 27, 2007 seeking a
    waiver and an extension of time to demonstrate substantial service
    for Station WLT379.[^2] We also have before us an informal request
    filed by M2Z Networks, Inc. (M2Z) on April 9, 2007 asking the Bureau
    to rescind its recent grant of SpeedUSNY's renewal application,
    reconsider its acceptance of and dismiss SpeedUSNY's required
    notification of substantial service, deny SpeedUSNY's request for
    extension and waiver, and automatically cancel or revoke the
    license.[^3] For the reasons discussed below, we grant the M2Z
    Objection in part and deny it in part; deny SpeedUSNY's request for
    a finding that Station WLT379 is providing substantial service;
    grant in part SpeedUSNY's request for an extension of time to
    demonstrate substantial service for Station WLT379, and extend the
    substantial service deadline for Station WLT379 to October 6, 2008.

2.  In addition, we have before us a petition, filed by IDT Spectrum,
    LLC (IDT Spectrum) on March 2, 2007,[^4] seeking reconsideration of
    the action taken by the Broadband Division (Division) of the
    Wireless Telecommunications Bureau (Bureau) on January 31, 2007.[^5]
    Specifically, the Division rejected IDT Spectrum's substantial
    service showing for LMDS Station WPOI485 and denied IDT Spectrum's
    request to extend the substantial service deadline for Station
    WPOI485 from February 1, 2006 to October 18, 2010,[^6] but granted,
    on its own motion, IDT Spectrum a limited waiver to extend the
    substantial service deadline for Station WPOI485 to August 1,
    2007.[^7] The Division also therein authorized the processing of a
    renewal application for Station WPOI485, subject to the condition
    that the license will automatically terminate if IDT Spectrum fails
    to demonstrate substantial service by August 1, 2007.[^8] For the
    reasons explained below, we dismiss the petition for
    reconsideration. However, on our own motion, we will grant IDT
    Spectrum a limited waiver of Section 1.946 of the Commission's
    Rules[^9] to extend the substantial service deadline for Station
    WPOI485 to October 6, 2008.

# BACKGROUND

## The History and Evolution of LMDS

3.  The 27.5-29.5 GHz (28 GHz) band has been available for
    point-to-point microwave radio common carrier use since 1959.
    However, scant interest was expressed in the use of the band prior
    to 1991.[^10] In 1991, the Commission granted a waiver request filed
    by Hye Crest Management, Inc. (Hye Crest)[^11] to allow the use of
    frequencies in the 28 GHz band for the provision of video service
    within the New York Standard Metropolitan Statistical Area
    ("SMSA")[^12] using a network of broad beam, omni-directional
    antennas.[^13] The Commission opted to proceed by waiver, rather
    than by rulemaking, in this matter because it found that the waiver
    approach offered the most efficient and expeditious means available
    for accommodating Section 7 of the Communications Act of 1934, as
    amended,[^14] and allowed the introduction of a competitive
    communications service to New York City.[^15] The Commission noted
    that no other party had demonstrated the development of technology
    capable of utilizing the 28 GHz band.[^16] The Commission decided to
    authorize Hye Crest to provide service throughout the entire New
    York PMSA because it found that only a designated service area
    licensing scheme would provide the licensee with the necessary
    flexibility to select and timely establish antenna locations to
    facilitate efficient frequency re-use, and thereby, assure
    continuous signal coverage.[^17] The Commission limited Hye Crest's
    initial license term to five years because of the unique nature of
    High Crest's proposed use of the 28 GHz band and because of the
    Commission's concern over ensuring the efficient use of the
    spectrum.[^18]

4.  In the wake of the *Hye Crest MO&O,* the Commission received more
    than 970 applications between February 1991 and October 1992
    requesting waivers similar to that granted to Hye Crest.[^19] As a
    result, the former Common Carrier Bureau (CCB) implemented a freeze
    on the acceptance of applications for common carrier point-to-point
    microwave service in the 28 GHz band to preclude the filing of
    additional waiver applications.[^20] The Commission subsequently
    dismissed those applications when it initiated a rulemaking
    proceeding on January 8, 1993 to amend the Commission's Rules to
    reallocate the 28 GHz band and to establish rules governing
    LMDS.[^21]

5.  In the LMDS rulemaking proceeding, the Commission allocated 1,300
    megahertz of spectrum per basic trading area ("BTA")[^22] for
    LMDS.[^23] Specifically, the Commission allocated two LMDS licenses
    per BTA -- the "A Block" and "B Block" licenses.[^24] The A Block
    license is comprised of 1,150 MHz of total bandwidth, and the B
    Block license is comprised of 150 MHz of total bandwidth.[^25] The A
    Block consists of the sub bands 27.50-28.35 GHz (the A1 Band);
    29.10-29.25 GHz (the A2 Band); and 31.075-31.225 GHz (the A3
    Band).[^26] The B Block consists of the sub bands 31.00-31.075 (the
    B1 Band) and 31.225-31.30 GHz (the B2 Band).[^27] The same entity
    may hold the licenses for both the A and B Blocks of spectrum in an
    individual BTA, but each license is auctioned and licensed
    separately.

6.  However, the LMDS band plan adopted by the Commission[^28] differed
    significantly from the 1 GHz of unencumbered spectrum granted to Hye
    Crest in 1991 to provide service in the New York PMSA.[^29]
    Therefore, the Commission grandfathered CellularVision (the
    successor-in-interest to Hye Crest)[^30] to allow it to continue
    operating in the 1 GHz of contiguous spectrum at 27.5-28.5 GHz until
    the later date of either July 22, 1998 or the launch of the first
    Geostationary Orbit/Fixed Satellite Service ("GSO/FSS") satellite
    licensed to operate in the spectrum.[^31] At that time,
    CellularVision would be required to vacate the 150 MHz of spectrum
    at 28.35-28.5 GHz and transition to the use of the 150 MHz of
    spectrum at 29.1-29.25 GHz.[^32] Subsequently, in the *Second LMDS
    Report and Order*, the Commission designated an additional 300 MHz
    of LMDS spectrum at 31.0-31.3 GHz, including 150 MHz of additional A
    Block spectrum at 31.075-31.125 GHz.[^33] Therefore, when the
    Commission granted CellularVision's renewal application on September
    23, 1997,[^34] it was authorized, pending final outcome of the
    rulemaking proceeding and subject to the conditions noted above, to
    operate in the 27.50-28.35, 28.35-28.50, 29.10-29.25 and
    31.075-31.225 GHz bands for a total of 1,300 MHz.[^35] The license,
    under the call sign WLT379, was renewed for a ten-year term with an
    expiration date of February 1, 2006.

7.  CellularVision subsequently disaggregated and assigned two segments
    of its original A Block of LMDS spectrum. Specifically,
    CellularVision entered into an agreement with WinStar Wireless Fiber
    Corp., a fully owned subsidiary of WinStar Communications, Inc., for
    the assignment, by disaggregation, and sale of 850 MHz of spectrum
    at 27.50-28.35 GHz (*i.e.*, the A1 Band).[^36] The Commission
    assigned the call sign WPOI485 to the disaggregated spectrum
    (*i.e.,* the A1 Band) assigned to WinStar Wireless Fiber Corp.
    Thereafter, CellularVision, now renamed SpeedUSNY.com, L.P.
    (SpeedUSNY),[^37] sought to disaggregate and assign the 150 MHz of
    LMDS spectrum that comprised the A Block of spectrum at
    31.075-31.225 GHz (*i.e.*, the A3 Band) to NextLink Communications,
    Inc. (NextLink Communications).[^38] The Commission assigned call
    sign WPOL286 to the disaggregated spectrum (*i.e.*, the A3 Band)
    assigned to NextLink Communications. Consequently, as a result of
    the disaggregations, three licensees -- WinStar Wireless Fiber
    Corp., SpeedUSNY, and NextLink Communications -- each held a portion
    of the A Block of LMDS spectrum originally granted to CellularVision
    for the New York PMSA.[^39] As such, these three licenses are the
    only LMDS authorizations that were not subject to or won by auction.

## Nextlink Wireless, Inc. Request 

8.  Nextlink Wireless, Inc. (Nextlink Wireless) is the licensee of 91
    LMDS licenses, three of which are in the New York BTA. Specifically,
    within the New York BTA, Nextlink Wireless is the licensee of LMDS
    Stations WPOL286,[^40] WPOH942,[^41] and WPLM397.[^42] On January
    12, 2005, Nextlink Wireless, then operating as XO Communications,
    Inc. (XO), filed a request for waiver of Section 101.1011 of the
    Commission's Rules[^43] to permit additional time to demonstrate
    substantial service for LMDS Station WPOL286.[^44] Specifically,
    Nextlink Wireless requested that the Commission extend the
    construction deadline for Station WPOL286 from March 27, 2007 to
    October 6, 2008 to correct an historical anomaly in the licensing of
    the New York BTA that effectively imposed a unique burden on it as
    the licensee of two A Block licenses which, taken together, provide
    coverage across the entire New York BTA.[^45] The A Block of the New
    York BTA is the only block of LMDS spectrum within a BTA that does
    not have a uniform construction and expiration date because part of
    the A Block was granted by waiver and the remainder of the A Block
    was subject to auction. As a result, the New York BTA is the only
    BTA where an LMDS licensee of A Block spectrum may be exposed to
    divergent deadlines to construct facilities and provide substantial
    service for more than one station within the same block of LMDS
    spectrum (*i.e.*, the "A Block"). Nextlink Wireless argued that,
    absent a waiver, it would be required to provide substantial service
    to eight of the counties of the New York BTA that are within the
    coverage of area of Station WPOL286 by March 27, 2007, even though
    it would not be required to provide substantial service to the
    eighteen counties of the New York BTA that are within the coverage
    area of Station WPOH942 until October 6, 2008.[^46] On August 21,
    2006, the request was granted through the Bureau's Universal
    Licensing System (ULS), thereby extending the substantial service
    deadline for Station WPOL286 by 18 months to October 6, 2008.[^47]

## SpeedUSNY.com, L.P. Request 

9.  SpeedUSNY, formerly known as CellularVision,[^48] holds the license
    for LMDS Station WLT379, which operates in the A2 Band (29.10-29.25
    GHz) across eight of the 26 counties in the New York BTA. Although
    the expiration date for the license was February 1, 2006, the
    construction and substantial service deadline for Station WLT379 was
    March 27, 2007. An application for renewal was filed by SpeedUSNY on
    January 9, 2006 and was granted through ULS on February 6,
    2006.[^49] The renewal application did not include a substantial
    service showing because the construction and substantial service
    deadline for Station WLT379 was March 27, 2007. On March 7, 2007,
    SpeedUSNY filed a substantial service showing,[^50] and on March 27,
    2007, SpeedUSNY filed an alternative request for waiver of Section
    101.1011 of the Commission's Rules[^51] and for an extension of
    time.[^52]

10. In its substantial service showing, SpeedUSNY contends that it has
    provided substantial service within the New York BTA during its ten
    year license term, which was from 1996 to 2006.[^53] Specifically,
    SpeedUSNY contends that it used 15 base stations to provide
    hub-to-subscriber video services on 49 channels to approximately
    18,000 household and business subscribers from 1996 to 1998.[^54]
    The service, which actually began in 1992 and continued into the
    current license term, was terminated in 1998 for financial
    reasons.[^55] SpeedUSNY argues that this service covered 52 percent
    of the population in its licensed market and therefore falls within
    one of the Commission's safe-harbors.[^56] SpeedUSNY also states
    that it offered financial institutions throughout its licensed area
    Bloomberg Information Television programming from 1996 to 2000.[^57]
    SpeedUSNY contends that it thereby rendered substantial service by
    serving a "niche market" in its licensed area.[^58] In addition,
    SpeedUSNY notes that it conducted a pilot program that delivered
    high-speed broadband internet access via 14 internet broadcast
    stations "to portions" of its licensed area from 1996 to 2003.[^59]
    SpeedUSNY suspended the pilot program in 2003 "due to the lack of
    equipment on an economically rational basis."[^60] Lastly, SpeedUSNY
    contends that, in 2004, it entered into an agreement with XO whereby
    XO would utilize Station WLT379's frequencies "to test various
    technical applications."[^61] According to SpeedUSNY, its current
    plans are to "build upon the lessons of its pilot program and
    provide . . . \[broadband super high-speed Internet service\]
    throughout its licensed area within the next three years."[^62] To
    date, SpeedUSNY estimates that it has expended \$70 million to
    construct and operate Station WLT379.[^63] SpeedUSNY is continuing
    to invest funds in technology development and business
    planning.[^64]

11. In its alternative request for waiver and for extension of time,
    SpeedUSNY states that it intends to provide broadband throughout its
    licensed area within the next three years and estimates that
    "economically viable equipment will be available within the next 18
    months."[^65] Therefore, SpeedUSNY contends that a waiver is
    warranted due to the presence of unique facts that render
    application of the substantial service deadline in this instance
    inequitable and unduly burdensome.[^66] Specifically, SpeedUSNY
    argues that it has exercised "diligence in constructing facilities
    and providing significant levels of service before and during its
    license term."[^67] According to SpeedUSNY, it "took steps to
    discontinue uneconomical services, instead directing resources
    towards new technologies and services. SpeedUSNY suspended the
    provision of its pilot program for high-speed broadband due in part
    to the unavailability of equipment at economically rational
    costs."[^68] SpeedUSNY contends that "\[e\]quipment unavailability
    has been a significant issue in the industry and has stifled the
    deployment of competitive services."[^69] It seeks an additional
    three years from March 27, 2007 to demonstrate substantial service.

12. On April 9, 2007, M2Z filed an informal request, pursuant to Section
    1.41 of the Commission's Rules,[^70] that the Bureau rescind its
    recent grant of SpeedUSNY's renewal application, reconsider its
    acceptance of and dismiss SpeedUSNY's required notification of
    substantial service, deny SpeedUSNY's request for extension and
    waiver, and automatically cancel or revoke the license.[^71] M2Z
    contends that "\[n\]otably absent from Speedus's report is any
    discussion of actual LMDS services currently being offered by
    Speedus to its New York City market."[^72] M2Z notes that, aside
    from whether the offerings described by SpeedUSNY would demonstrate
    the provision of substantial service in the New York BTA if they
    were furnished on an ongoing basis, "the level of service described
    in the company's report fails on its face to meet the FCC's
    substantial service standard. . . \[because\] FCC rules require LMDS
    licensees to show that they *are providing* substantial
    service."[^73] M2Z also disputes SpeedUSNY's various contentions
    regarding the unavailability of equipment and SpeedUSNY's ability to
    finance the construction and deployment of equipment in a timely
    manner.[^74] Accordingly, M2Z contends that "\[e\]nforcing the
    automatic cancellation provision of Speedus's license will open the
    LMDS market to a new, more dynamic provider willing to invest the
    capital needed to revitalize this spectrum."[^75]

## IDT Spectrum Licensing, Inc. Petition for Reconsideration 

13. IDT Spectrum, a fully owned subsidiary of IDT Corporation, is the
    licensee of 15 LMDS stations, including LMDS Station WPOI485, which
    is authorized to operate in A1 Band (27.50-28.35 GHz) across eight
    of the 26 counties in the New York BTA. The authorization to operate
    in the A1 Band for those eight counties was originally held by
    CellularVision under the call-sign WLT379 prior to the assignment,
    by disaggregation, of the 850 MHz of spectrum to WinStar Wireless
    Fiber Corp.[^76] The Commission assigned call-sign WPOI485 to the
    disaggregated spectrum (*i.e.,* the A1 Band) assigned to WinStar
    Wireless Fiber Corp. and issued a license with an expiration date
    and construction deadline of February 1, 2006. The license for
    Station WPOI485 was subsequently acquired in 2001 by IDT
    Corporation, via its subsidiaries, from the bankrupt estate of
    WinStar Communications, including its subsidiaries WinStar Wireless
    Fiber Corp. and WinStar LMDS, LLC, and is currently held by IDT
    Spectrum.[^77]

14. On January 31, 2006, IDT Spectrum filed two applications for LMDS
    Station WPOI485 -- one seeking renewal and one seeking a two-year
    extension of time (and related waiver of the Commission's Rules) to
    demonstrate substantial service.[^78] On August 30, 2006, IDT
    Spectrum amended its applications to request that the Commission
    extend its substantial service deadline for Station WPOI485 by more
    than 56 months -- from February 1, 2006 to October 18, 2010.[^79] On
    January 31, 2007, the Division found that IDT Spectrum failed to
    demonstrate that Station WPOI485 is providing substantial service in
    the New York BTA.[^80] In addition, the Division also found that IDT
    Spectrum's arguments failed to justify an extension of time to
    demonstrate substantial service for Station WPOI485.[^81] Although
    the Division found that IDT Spectrum had failed to demonstrate that
    the requested waiver was warranted, the Division, on its own motion,
    granted IDT Spectrum a limited waiver of Section 1.946 of the
    Commission's Rules[^82] to extend the substantial service deadline
    for Station WPOI485 from February 1, 2006 to August 1, 2007.[^83]
    The Division also therein authorized the processing of a renewal
    application for Station WPOI485, subject to the condition that the
    license will automatically terminate if IDT Spectrum fails to
    demonstrate substantial service by August 1, 2007.[^84] On March 2,
    2007, IDT Spectrum filed a petition seeking reconsideration of the
    action taken by Division.

# DISCUSSION

15. LMDS licensees may provide any service consistent with the
    Commission's Rules and their regulatory status,[^85] subject to a
    ten-year term from the initial license grant date.[^86] At the end
    of the ten year period, licensees are required to submit an
    acceptable showing to the Commission demonstrating that they are
    providing "substantial service" to their service area.[^87] The
    Commission defined "substantial service" as "service that is sound,
    favorable, and substantially above a level of mediocre service that
    just might minimally warrant renewal."[^88] In adopting a
    substantial service requirement for LMDS licensees, the Commission
    concluded that such a requirement would provide licensees with the
    flexibility to offer a range of services using the spectrum while
    promoting efficient use of the spectrum, encouraging the provision
    of service to rural, remote, and insular areas, and preventing the
    warehousing of spectrum.[^89] Failure by any licensee to meet this
    requirement will result in forfeiture of the license and the
    licensee will be ineligible to regain it.[^90]

16. Section 1.946 of the Commission's Rules provides that a request for
    extension of time to construct "may be granted if the licensee shows
    that failure to meet the construction deadline is due to involuntary
    loss of site or other causes beyond its control."[^91] The rule
    prohibits granting extensions based on a failure to obtain
    financing, failure to obtain an antenna site, failure to order
    equipment, or because of a transfer of control of the licensee.[^92]
    Section 1.925 of the Commission's Rules[^93] provides that a waiver
    of the Commission's Rules may be granted if it is shown that
    either (1) the underlying purpose of the rule(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 (2) in view of the unique or unusual 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.[^94]

## SpeedUSNY.com, Inc. Request

17. We find that SpeedUSNY has not demonstrated that LMDS Station WLT379
    is providing substantial service within the New York BTA. We decline
    to make a finding of substantial service where the licensee is not
    currently providing service within the licensed area.[^95] As M2Z
    notes, "\[n\]otably absent from Speedus's report is any discussion
    of actual LMDS services currently being offered by Speedus to its
    New York City market."[^96] SpeedUSNY's reliance on *Biztel* is
    misplaced.[^97] In *Biztel,* a 39 GHz licensee constructed at least
    four links per million population in each licensed area during the
    license term to provide a variety of services to customers,
    including wireless local loop service, backhaul, and backbone
    service for wireless service providers.[^98] Although Biztel was
    utilizing these links to provide service to the public, it explained
    that all the paths were not operational simultaneously for the
    entire license period because the type of service it provided was
    dynamic rather than stable.[^99] In contrast to *Biztel*, where the
    licensee was providing service, albeit a service that was dynamic,
    SpeedUSNY ceased providing video services in 1998 and Bloomberg
    Informational Television programming in 2000, and terminated its
    broadband pilot program in 2003.[^100] Accordingly, we cannot find
    that, based on the record, SpeedUSNY has demonstrated the provision
    of substantial service within the New York BTA. Therefore, to the
    extent that M2Z asks that we deny the substantial service showing
    for WLT379, we grant the informal request.

18. We conclude, however, that SpeedUSNY has justified a partial grant
    of its application for extension of time to demonstrate substantial
    service. We disagree with M2Z's contention that SpeedUSNY has been
    warehousing spectrum.[^101] Although SpeedUSNY has failed to
    demonstrate substantial service, its past operations do demonstrate
    that it has diligently tried various means of using the station to
    provide service. Furthermore, these efforts are continuing, and
    SpeedUSNY has access to building sites in the New York area. On
    balance, we believe that SpeedUSNY has demonstrated sufficient
    diligence to justify an extension of time.[^102]

19. We do not believe, however, that SpeedUSNY has justified its request
    for a three-year extension of time to demonstrate substantial
    service for Station WLT379. We agree with M2Z that the record in
    this proceeding does not demonstrate that SpeedUSNY faces the
    extensive technical and equipment challenges experienced by
    licensees in the Wireless Communications Service (WCS) that
    warranted a three-year extension of time in the *WCS Extension
    Order.*[^103] In the *WCS Extension Order*, the Bureau found limited
    deployment attempts using available equipment had been marred by
    technical problems or proved to be economically infeasible.[^104]
    Moreover, the Bureau was "persuaded . . . that relatively
    restrictive \[out-of-band emission (OOBE)\] limits may have impeded
    the development of WCS equipment and have contributed to the unique
    circumstances of the band."[^105] The circumstances presented by
    SpeedUSNY are distinguishable from those cases where the Commission
    granted extensions of time or waivers in services where the
    "innovative" technology had not yet become available.[^106]
    Furthermore, SpeedUSNY "expects that economically viable equipment
    will be available within the next 18 months."[^107] We also note
    that in contrast Nextlink Wireless, another A Block licensee in the
    New York BTA, only requested an extension from March 27, 2007 to
    October 6, 2008 to demonstrate substantial service for LMDS Station
    WPOL286 in the A3 Band.

20. On balance, we believe the public interest would best be served by
    granting SpeedUSNY an extension until October 6, 2008 to demonstrate
    substantial service. We believe there is good cause to harmonize the
    construction and substantial service deadlines for those licenses
    that comprise the A Block of LMDS spectrum in the New York BTA.
    Because the A Block spectrum of the twenty-six county New York BTA
    was bifurcated -- with part (comprising eight of the twenty-six
    counties) licensed pursuant to a waiver dating back to 1991 and with
    part (comprising the remaining eighteen counties) subject to
    auction, it is the only BTA where there will be a fragmented
    roll-out of LMDS services.[^108] By harmonizing the construction and
    substantial service deadlines for the A Block licenses in the New
    York BTA, we are removing a regulatory fragmentation in the New York
    BTA that distinguishes it from all other LMDS BTAs. Such an approach
    is consistent with our earlier decision to grant the same extension
    to Nextlink.[^109] Nextlink held two A Block licenses, Stations
    WPOL286 (A3 Band in eight of the 26 counties) and WPOH942 (A1, A2,
    and A3 Bands in the remaining 18 counties),[^110] which taken
    together provide coverage across the entire New York BTA. Nextlink
    sought, and received, an extension of the construction deadline from
    March 27, 2007 to October 6, 2008 because it faced the specter of
    divergent construction deadlines: absent a waiver, Nextlink was
    required to provide substantial service to eight of the 26 counties
    in the New York BTA by March 27, 2007, even though it would not be
    required to provide substantial service to the remaining 18 counties
    until October 6, 2008. Our action is also consistent with the
    Commission's intent in adopting BTAs as the geographic areas for
    licensing LMDS. By relying on BTAs, the Commission sought to create
    a more level competitive playing field, avoid fragmenting natural
    telecommunications markets, and offer licensees the flexibility to
    define service markets.[^111] Accordingly, we find that it would be
    reasonable under the circumstances and would further the public
    interest to grant SpeedUSNY a limited waiver of Section 1.946 of the
    Commission's Rules[^112] to extend the construction and substantial
    service deadline for LMDS Station WLT379 from March 27, 2007 to
    October 6, 2008. Failure by SpeedUSNY to demonstrate that Station
    WLT379 is providing substantial service within its licensed area
    prior to October 6, 2008 will result in the automatic termination of
    the license.

21. We find that the licensee's actions in the instant case are
    distinguishable from the actions taken by licensees in those cases
    cited by M2Z for the principle that "licensees cannot obtain relief
    from buildout requirements if their failure to achieve substantial
    service flows from ill-fated business decisions."[^113] For example,
    in the *ITV* case cited by M2Z,[^114] the Bureau's Mobility Division
    denied a request for a waiver of the substantial service
    requirements applicable to licensees in the 218-219 MHz Service
    because the licensee failed to provide any service to the public
    within its licensed area during its ten year license term. In
    addition, the licensee was seeking a finding of substantial service
    or an extension of time based on the expenses incurred related to
    its 218-219 MHz service license including the development of a
    business model and equipment testing.[^115] In the *Coran* case
    cited by M2Z, the failure to construct was the result of the
    licensee's business decisions, where the licensee was relying on a
    third party to finance construction of its system and "a bank error
    . . . precluded access to funds that were to be used to meet its
    construction obligations."[^116] Finally, in two other 218-219 MHz
    Service cases cited by M2Z, the licensees had expended little effort
    toward providing service or even toward developing business plans
    and were effectively seeking waivers and extensions of time to sell
    the licenses.[^117] In contrast to the above cases, SpeedUSNY has
    incurred significant expenses (\$70 million) to construct and
    operate Station WLT379 and put forth great efforts to develop LMDS
    prior to the creation of the service; has provided service within
    the instant license term, albeit not service of a continuing nature
    that would be sufficient to justify a finding of substantial service
    at the current date; has a business plan to provide actual service
    within the New York BTA; and has been continuing its efforts to
    provide service within the New York BTA while the instant request
    has been pending despite the inherent risk in such an action.
    Accordingly, we deny the M2Z Objection to the extent that it
    requests that the Commission take further action at this time.

## IDT Spectrum Licensing, Inc. Petition for Reconsideration

22. Pursuant to Section 1.945(e) of the Commission's Rules,[^118] the
    Commission "may grant applications in part, and/or subject to
    conditions other than those normally applied to authorizations of
    the same type." When the Commission takes such action, it will
    inform the applicant of the reasons.[^119] Moreover, "\[s\]uch
    partial or conditional grants are final unless the FCC revises its
    action in response to a petition for reconsideration. Such petitions
    for reconsideration must be filed by the applicant within thirty
    days after the date of the letter or order stating the reasons for
    the partial or conditional grant, and must reject the partial or
    conditional grant and return the instrument of authorization."[^120]

23. In this case, IDT Spectrum filed a petition for reconsideration
    within thirty days of the Division's decision to grant IDT Spectrum
    an extension of the substantial service deadline for Station WPOI485
    (A1 Band in eight of the 26 counties in the New York BTA) from
    February 1, 2006 to August 1, 2007. However, IDT Spectrum failed to
    reject the partial grant therein. When an applicant fails to timely
    reject a partial grant of its application, the applicant is deemed
    to have accepted the partial grant and has waived the right to
    contest the failure to grant the application in full.[^121]
    Accordingly, we dismiss the petition for reconsideration for failure
    to timely reject the partial grant.

24. Although we dismiss the instant petition for reconsideration, we
    believe that, as explained above, there is good cause to harmonize
    the construction and substantial service deadlines for those
    licenses that comprise the A Block of LMDS spectrum in the New York
    BTA. Accordingly, we will grant IDT Spectrum a limited waiver of
    Section 1.946 of the Commission's Rules on our own motion[^122] to
    extend, until October 6, 2008, the deadline by which it must
    demonstrate substantial service for LMDS Station WPOI485. We find it
    both reasonable under the circumstances and in the public interest
    to extend the construction and substantial service deadline for LMDS
    Station WPOI485 from February 1, 2006 to October 6, 2008. Failure by
    IDT Spectrum to demonstrate that Station WPOI485 is providing
    substantial service within its licensed area prior to October 6,
    2008 will result in the automatic termination of the license.

# CONCLUSION AND ORDERING CLAUSES 

25. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Section 101.1011(a) of the Commission's Rules, 47 C.F.R. §
    101.1011(a), that the request for finding of substantial service
    made by SpeedUSNY.com, L.P. on March 7, 2007, File No. 0002939453,
    IS DENIED.

26. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.3, 1.925, and 1.946 of the Commission's Rules, 47
    C.F.R. §§ 1.3, 1.925, 1.946, that the Contingent Request for Waiver
    of Section 101.1011 of the Commission's Rules or, in the
    Alternative, Extension of Time to Construct, File No. 0002968483,
    filed by SpeedUSNY.com, L.P. on March 27, 2007 IS GRANTED to the
    extent indicated and is otherwise DENIED, and the time for
    SpeedUSNY.com, L.P. to demonstrate substantial service for the
    Station WLT379 IS EXTENDED until October 6, 2008.

27. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Section 1.41 of the Commission's Rules, 47 C.F.R § 1.41, that
    the informal request for Commission action filed by M2Z Networks,
    Inc. (M2Z) on April 9, 2007 with respect to Station WLT379 is
    GRANTED to the extent indicated and is otherwise DENIED.

28. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and Section
    1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the Petition for
    Reconsideration filed on March 2, 2007 by IDT Spectrum, LLC IS
    DISMISSED.

29. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Section 1.3 of the Commission's Rules, 47 C.F.R. § 1.3, that the
    time for IDT Spectrum, LLC to demonstrate substantial service for
    the Station WPOI485 IS EXTENDED until October 6, 2008.

30. These actions are taken under delegated authority pursuant to
    Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§
    0.131, 0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Fred B. Campbell, Jr.
>
> Chief, Wireless Telecommunications Bureau

[^1]: File No. 0002939453, Section 101.1011 Report and Demonstration of
    Substantial Service (filed Mar. 7, 2007) (SpeedUSNY Substantial
    Service Showing).

[^2]: File No. 0002968483, Contingent Request for Waiver of Section
    101.1011 of the Commission's Rules or, in the Alternative, Extension
    of Time to Construct (filed Mar. 27, 2007) (SpeedUSNY Waiver
    Request).

[^3]: M2Z Networks, Inc., Request for Cancellation of SpeedUSNY.com's
    LMDS License and Objection to Renewal Grant, Required Notification
    of Substantial Service, and Contingent Waiver Request (filed Apr. 9,
    2007) (M2Z Objection).

[^4]: IDT Spectrum, LLC, Petition for Reconsideration (filed Mar. 2,
    2007) (IDT Spectrum Petition).

[^5]: Letter from Joel D. Taubenblatt, Chief, Broadband Division,
    Wireless Telecommunications Bureau, FCC, to Gregory V. Haledjian,
    Esq., IDT Spectrum, LLC, dated January 31, 2007 (*Division Letter*).
    The Division also therein acted on 103 applications that were filed
    by IDT Spectrum on August 30, 2006 seeking (1) waivers of 47 C.F.R.
    §§ 1.949(b), 101.67 to extend the license periods for 103 Fixed
    Service (FS) licenses in the 38.6 - 40.0 GHz band (39 GHz band) to
    October 18, 2010 and (2) waivers and extensions of time to comply
    with the substantial service requirements set-forth in 47 C.F.R. §
    101.17(a) for those 103 licenses. The Petition, as filed with
    respect to those 103 FS licenses, will be addressed in a separate
    order.

[^6]: IDT filed a "Request for Waiver and Extension of Time, or in the
    Alternative, a Finding of Substantial Service" for Station WPOI485
    on January 31, 2006. *See* File No. 0002468832 (filed Jan. 31, 2006)
    (extension of time application); File No. 0002468846 (filed Jan. 31,
    2006) (renewal application) (collectively, "IDT Spectrum Waiver
    Request"). The applications were amended on August 30, 2006.

[^7]: *See Division Letter* at 2; Appendix B.

[^8]: *See Division Letter* at 2, 6.

[^9]: 47 C.F.R. § 1.946.

[^10]: At that time, the 28 GHz band was allocated for fixed,
    fixed-satellite uplinks, and mobile services. *See* 47 C.F.R. §
    2.106. Specifically, 47 C.F.R. Part 21 permitted fixed
    point-to-point use, and 47 C.F.R. Part 25 allowed fixed satellite
    services in this band.

[^11]: *See* Hye Crest Management, Inc., File No. 10380-CF-P-88.

[^12]: We note that SMSAs were eliminated by the Office of Management
    and Budget, effective June 30, 1993. The New York Primary
    Metropolitan Statistical Area ("PMSA") is the successor to the New
    York SMSA.

[^13]: *See* Hye Crest Management, Inc., *Memorandum Opinion and Order*,
    6 FCC Rcd 332 (1991) (*Hye Crest MO&O*). The authorization permitted
    Hye Crest to construct a 24 channel video distribution system
    comprised of multiple, low power transmitters. *See id.* at ¶ 28.
    Each station was to provide service through transmitters within a 6
    to 8 mile cell and be capable of offering discreet programming
    within its individual service area. *See id.* The Commission
    subsequently modified Hye Crest's authorization in 1992 to permit it
    to operate a 49 channel system. *See* Rulemaking to Amend Part 1 and
    Part 21 of the Commission's Rules to Multipoint Distribution
    Service, CC Docket No. 92-297, *Notice of Proposed Rulemaking*,
    *Order, Tentative Decision and Order on Reconsideration*, 8 FCC Rcd
    557, 558 ¶ 6 (1993) (*First LMDS NPRM*).

[^14]: 47 U.S.C. § 157.

[^15]: *See Hye Crest MO&O,* 6 FCC Rcd at ¶18

[^16]: *Id.* at ¶ 22. Moreover, the Commission found that the 28 GHz
    band offered Hye Crest sufficient contiguous spectrum to support its
    proposed service. *See id.* at ¶ 21.

[^17]: *Id. ¶* 27. The Commission authorized Hye Crest to provide
    service on 1 GHz of contiguous spectrum at 27.5- 28.5 GHz.

[^18]: *Hye Crest MO&O,* at 335 ¶ 29.

[^19]: *See First LMDS NPRM*.

[^20]: *See* Petitions for Redesignation of the Common Carrier
    Point-to-Point Microwave Radio Service Frequency Band 27.5-29.5 GHz,
    *Order*, 7 FCC Rcd 7201 (CCB 1992).

[^21]: *See First LMDS NPRM,* 8 FCC Rcd at 564-565 ¶ 51.

[^22]: *See* Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5 GHz Frequency Band, to
    Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules and
    Policies For Local Multipoint Distribution Service and For Fixed
    Satellite Services, CC Docket No. 92-297, *Second Report and Order,
    Order on Reconsideration and Fifth Notice of Proposed Rulemaking*,
    12 FCC Rcd 12545, 12605 ¶ 136 (1997) (*Second LMDS Report and
    Order*)*; see also* Rand McNally Commercial Atlas & Marketing Guide
    36-39 (123rd ed. 1992). Rand McNally is the copyright owner of the
    Major Trading Area (MTA) and BTA Listings, which list the BTAs
    contained in each MTA and the counties within each BTA, as embodied
    in Rand McNally's Trading Area System MTA/BTA Diskette, and
    geographically represented in the map contained in Rand McNally's
    Commercial Atlas & Marketing Guide. The conditional use of Rand
    McNally copyrighted material by interested persons is authorized
    under a blanket license agreement dated February 10, 1994 and covers
    use by LMDS applicants. This agreement requires authorized users of
    the material to include a legend on reproductions (as specified in
    the license agreement) indicating Rand McNally ownership.

[^23]: The final LMDS band allocation was adopted on March 20, 1997.
    *See id.* at 12556 ¶ 13; *see also* Rulemaking to Amend Parts 1, 2,
    21, and 25 of the Commission\'s Rules to Redesignate the 27.5 GHz
    Frequency Band, to Reallocate the 29.5-30.0 GHz Frequency Band, to
    Establish Rules and Policies For Local Multipoint Distribution
    Service and For Fixed Satellite Services, CC Docket No. 92-297,
    *First Report and Order and Fourth Notice of Proposed Rulemaking*,
    11 FCC Rcd 19005, 19025 ¶ 45 (1996) (*First LMDS Report and Order*)
    (allocating the initial 1 GHz of spectrum for LMDS and seeking
    comment on the allocation of an additional 300 MHz of spectrum at
    31.0-31.3 GHz). The Commission licensed the LMDS spectrum
    (27.5-28.35 GHz, 29.1-29.25 GHz, and 31.0-31.3 GHz) according to 493
    BTAs for a total of 1,300 GHz of spectrum per BTA.

[^24]: *See Second LMDS Report and Order*, 12 FCC Rcd at 12556 ¶ 12.

[^25]: *See id.*

[^26]: *See* 47 C.F.R. § 101.1005.

[^27]: *See* 47 C.F.R. § 101.1005.

[^28]: *See Second LMDS Report and Order*, 12 FCC Rcd at 12556 ¶ 13;
    *First LMDS Report and Order,* 11 FCC Rcd 19025 ¶ 45.

[^29]: As noted above, the original license had been granted for a term
    of five years. A timely renewal application was filed for the
    license on December 29, 1995. *See* File No. 9701842 (filed Dec. 29,
    1995).

[^30]: On June 23, 1995, the Commission granted a *pro forma* transfer
    of control from Hye Crest to CellularVision, USA, Inc.
    (CellularVision), a newly formed corporation. *See* Private Wireless
    Division Action Taken on Application in the Point-to-Point Microwave
    Radio Service, *Public Notice,* 11 FCC Rcd 1261 (1995).

[^31]: *See First LMDS Report and Order,* 11 FCC Rcd at 19028-19029 *¶*¶
    55-56.

[^32]: *See id.* CellularVision was permitted to use the newly allocated
    150 MHz of spectrum at 29.1-29.5 GHz during the grandfathered
    transition period. *See id.* However, CellularVision was limited to
    using the 150 MHz of spectrum at 29.1-29.5 GHz for hub-to-subscriber
    transmissions. *See id.*

[^33]: *See Second LMDS Report and Order*, 12 FCC Rcd at 12565 ¶ 36.

[^34]: *See* License for LMDS Station WLT379, File No. 9701842 (granted
    Sept. 23, 1997); *see also* Wireless Telecommunications Bureau
    Application Accepted for Filing, *Public Notice,* Report 97-29 (rel.
    July 1, 1997).

[^35]: However, at the conclusion of the grandfathered period,
    CellularVision was required to cease operating at 28.35-28.50 GHz,
    thus transitioning CellularVision to the uniform allocation of 1,150
    MHz of A Block spectrum at 27.5-28.35, 29.1-29.25 and 31.075-31.225
    GHz.

[^36]: *See* File No. 0000002138 (filed Aug. 25, 1998); *see also*
    Agreement to Assign LMDS License (dated, effective, as of July 10,
    1998). The Commission consented to the transaction on October 9,
    1998. The transaction was consummated on the same date. *See* Report
    No. 2010, *Public Notice* (rel. Oct. 14, 1998).

[^37]: *See* File No. 0000005778 (filed Feb. 12, 1999; granted Mar. 9,
    1999).

[^38]: *See* File No. 0000016529 (filed July 9, 1999); *see also*
    Amended Agreement to Assign LMDS License (dated, effective, as of
    June 13, 1999). The Commission consented to the transaction on
    August 30, 1999. Consummation of the transaction occurred on October
    12, 1999.

[^39]: Specifically, the A1, A2, and A3 Bands were licensed to WinStar
    Wireless Fiber Corp, SpeedUSNY, and NextLink Communications,
    respectively. The license held by SpeedUSNY retained the original
    call sign of WLT379. However, each license now shared the common
    expiration of the original license -- February 1, 2006. *See*
    Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission\'s
    Rules to Redesignate the 27.5 GHz Frequency Band, to Reallocate the
    29.5-30.0 GHz Frequency Band, to Establish Rules and Policies For
    Local Multipoint Distribution Service and For Fixed Satellite
    Services, CC Docket No. 92-297, *Fourth Report and Order,* 13 FCC
    Rcd 11655, 11668 ¶ 22 (1998).

[^40]: As noted above, in 1999, SpeedUSNY disaggregated and assigned
    spectrum under call sign WPOL286, the A3 Band of the LMDS spectrum
    in eight of the 26 counties in the New York BTA, to Nextlink
    Communications. The license for Station WPOL286 retained the
    expiration date of the original license, still held by SpeedUSNY
    under call sign WLT379, of February 1, 2006. However, when the
    license for Station WPOL286 was first issued to Nextlink
    Communications, the Commission imposed a construction and
    substantial service deadline of March 27, 2007.

[^41]: The license for Station WPOH942 includes 1,150 MHz of A Block
    spectrum (*i.e.,* the A1, A2, and A3 bands) across 18 of the
    remaining 26 counties in the New York BTA that had not been
    previously granted, by waiver, to Hye Crest in 1991. WNP
    Communications, Inc. (WNP) was the wining bidder for this spectrum
    in Auction 17. *See* LMDS Auction Closes, *Public Notice,* 13 FCC
    Rcd 18217 (1998) (*Auction 17 Closing PN*). The Commission granted
    WNP's license application on October 6, 1998. *See* File No.
    0000000091. A license was printed and mailed to WNP on November 20,
    1998 under call-sign WPOH942 with a construction and substantial
    service deadline of October 6, 2008. On January 21, 1999, WNP filed
    an application to assign WPOH942 to PCO Acquisition Corp. (PCO), a
    wholly-owned subsidiary of NextLink Communications. *See* File No.
    0000003365. The Commission consented on March 30, 1999, and the
    transaction was consummated on April 26, 1999.

[^42]: The license for Station WPLM397 authorizes the use of the entire
    150 MHz of B Block spectrum (31.00-31.075; 31.225-31.30 GHz) that
    extends coverage across all 26 counties of the New York BTA.
    NEXTBAND Communications, LLC (NEXTBAND) was the winning bidders of
    the B Block license in Auction 17. *See Auction 17 Closing PN,*
    Attachment A. The Commission granted NEXTBAND's application on June
    17, 1998 and issued a license on September 2, 1998 under call-sign
    WPLM397 with a construction and substantial service deadline of June
    17, 2008. *See* File No. 0000000114. Nextel Spectrum Acquisition
    Corp. and NextLink Communications jointly owned NEXTBAND until the
    parties consummated a *pro forma* transfer of control and sale of
    NEXTBAND to NextLink Communications on June 3, 1999. *See* File No.
    0000016229.

[^43]: 47 C.F.R. § 101.1011.

[^44]: XO Communications, Inc., Request for Rule Waiver and Extension of
    Construction Deadline, File No. 0002004326 (Jan. 12, 2005). XO filed
    an administrative updated on April 20, 2006 to change its name to
    Nextlink Wireless, Inc. (Nextlink Wireless). *See, e.g.,* File No.
    0002578660 (filed Apr. 20, 2006). To avoid confusion, we herein
    refer to the waiver request filed on January 12, 2005 as the
    Nextlink Wireless Waiver Request.

[^45]: Nextlink Wireless Waiver Request at 1.

[^46]: Nextlink Wireless Waiver Request at 5-8.

[^47]: *See* File No. 0002004326.

[^48]: *See* File No. 0000005778 (filed Feb. 12, 1999; granted Mar. 9,
    1999).

[^49]: *See* File No. 0002439954 (renewal only).

[^50]: SpeedUSNY Substantial Service Showing.

[^51]: 47 C.F.R. § 101.1011.

[^52]: SpeedUSNY Waiver Request.

[^53]: *See* SpeedUSNY Substantial Service Showing at 1-4.

[^54]: *Id.* at 1-2.

[^55]: *See, e.g., id.* at 2. SpeedUSNY also attached an engineering
    statement, dated and signed March 7, 2007, that states, in the
    present tense, that the "SpeedUSNY LMDS system is comprised of
    fifteen (15) transmit sites. . . ." *See id.*, Engineering Statement
    of T. Lauriston Hardin, P.E. (dated Mar. 7, 2007). Therefore, it is
    unclear whether the 15 transmit sites were dismantled after the
    termination of service.

[^56]: *See* SpeedUSNY Substantial Service Showing at 2*.*

[^57]: *See id.*

[^58]: *See id.* SpeedUSNY determined that, based "on technology
    innovation activities," there may be better and more
    spectrally-efficient uses for LMDS spectrum, and concentrated on
    developing broadband services." *Id.* at 3.

[^59]: *See id.*

[^60]: *Id.*

[^61]: *Id.*

[^62]: *Id.* at 3. However, "\[a\]s an initial focus, within the next 12
    months, SpeedUSNY plans to continue its technology development
    efforts and its discussions with companies that can manufacture
    equipment at a price point that will make it attractive for
    consumers. . . . SpeedUSNY believes that it can deploy broadband
    services within the next 12 months." *Id.* at 4.

[^63]: *Id.* at 4. Specifically, \$25 million in system construction;
    \$25 million in operating expenses; \$7.5 million in technology
    development and research; \$7.5 million in business planning; and
    \$5 million in legal fees. *See id.*

[^64]: *Id.* at 4.

[^65]: SpeedUSNY Waiver Request at 2-3.

[^66]: *See id.* at 3-4. SpeedUSNY also argues that relief is warranted
    pursuant to 47 C.F.R. § 1.946(e) because the "equipment difficulties
    here were beyond the control of SpeedUSNY and could not have been
    reasonably anticipated." *Id.* at 6. We also note that SpeedUSNY
    committed to "continue its efforts while this request remains
    pending, despite the risks inherent in such activities." *Id.*

[^67]: *Id.* at 3.

[^68]: *Id.* at 3.

[^69]: *Id.* at 4.

[^70]: 47 C.F.R. § 1.41.

[^71]: *See* M2Z Objection. M2Z has filed an application for a license
    to provide internet access in the 2155-2175 MHz band. *See*
    Application of M2Z Networks, Inc. for License and Authority to
    Provide a National Broadband Radio Service in the 2155-2175 MHz Band
    (filed May 5, 2006; amended Sept. 6, 2006) (M2Z Application).

[^72]: M2Z Objection at 7.

[^73]: M2Z Objection at 8 (emphasis in original).

[^74]: M2Z Objection at 9-12. For example, M2Z states that SpeedUSNY
    noted, in an annual report filed with the Securities and Exchange
    Commission on December 31, 2006, that "\[w\]e will not commence a
    full marketing effort using our LMDS technology until new LMDS
    equipment becomes commercially available with cost and performance
    that allow implementation of an economically viable business model.
    *We cannot determine when this will occur and this equipment may
    never be available to us on this basis.*" M2Z Objection at 10
    (*quoting* Speedus Corp., Securities and Exchange Commission Form
    10-K, Annual Report for the fiscal year ended December 31, 2006 at
    4, 15) (emphasis provided by M2Z). In addition, M2Z notes that the
    engineering statement provided by SpeedUSNY with its substantial
    service showing indicates that "Speedus has equipment, but simply is
    not using that equipment to provide any service because it doesn't
    fit Speedus's current business plan." M2Z Objection at 12.

[^75]: M2Z Objection at 10-11.

[^76]: *See* File No. 0000002138 (filed Aug. 25, 1998); *see also*
    Agreement to Assign LMDS License (dated, effective, as of July 10,
    1998). The Commission consented to the transaction on October 9,
    1998. The transaction was consummated on the same date. *See* Report
    No. 2010, *Public Notice* (rel. Oct. 14, 1998). WinStar LMDS, LLC,
    another subsidiary of WinStar Communications, was the successful
    high bidder for the 14 other LMDS licenses, in Auction 17, which
    concluded on March 25, 1998. *See Auction No. 17 Closing PN*.

[^77]: *See* IDT Spectrum, LLC, Petition for Reconsideration (filed Mar.
    2, 2007) (IDT Spectrum PFR).

[^78]: *See* File No. 0002468832 (filed Jan. 31, 2006) (extension of
    time application); File No. 0002468846 (filed Jan. 31, 2006)
    (renewal application) (collectively, "IDT Spectrum Waiver Request").
    The applications were amended on August 30, 2006. However, by
    letter, dated July 31, 2006, IDT Spectrum explained to the
    Commission that, since January 31, 2006, it has found it necessary
    to limit its ongoing expenditures and to engage in an extensive
    restructuring of its business. *See* File No. 0002468832, Letter
    from Gregory V. Haledjion, Esq., Counsel, IDT Spectrum, LLC, to
    Marlene H. Dortch, Secretary, FCC (July 31, 2006). In particular,
    IDT Spectrum notes that "most of the senior executives and staff
    pursuing the operational plans described in the applications have
    left the company" since June. *Id.* Moreover, IDT Spectrum explains
    that its parent company "has suspended most investment in the
    business model described in the original waiver request pending
    clarification concerning renewal of its fixed service licenses."
    *Id.*

[^79]: *See* File No. 0002468832, Letter from Gregory V. Haledjian,
    Esq., Counsel, IDT Spectrum, LLC, to Marlene H. Dortch, Secretary,
    FCC, (dated Aug. 30, 2006).

[^80]: *See Division Letter* at 4. Specifically, the Division found
    "nothing in the record to support a finding that Station WPOI485 has
    provided substantial service, or any service, to the New York BTA."
    *Division Letter* at 4. The Division noted that "IDT concedes that
    it has no 'active operations specifically using its LMDS frequencies
    in the New York City service area for Call Sign WPOI485.'" *Division
    Letter* at 4 (*quoting* IDT Spectrum Waiver Request at 9). Moreover,
    the Division emphasized that "IDT has now admitted that it has
    abandoned the efforts that formed the basis for its substantial
    service showing." *Division Letter* at 4.

[^81]: *See Division Letter* at 4.

[^82]: 47 C.F.R. § 1.946.

[^83]: *See Division Letter* at 2; Appendix B. Specifically, the
    Division found that such a limited waiver would further the public
    interest "by preventing the disruption of any service that IDT may
    currently be providing while giving IDT a last opportunity to put
    these licenses to use." *Division Letter* at 6.

[^84]: *See Division Letter* at 2, 6.

[^85]: *See* 47 C.F.R. § 101.1013(b).

[^86]: *See Second LMDS Report and Order,* 12 FCC Rcd at 12657 ¶ 259.
    Pursuant to 47 C.F.R. § 101.67, LMDS licenses are issued for a
    period not to exceed ten years.

[^87]: *See* 47 C.F.R. § 101.1011(a); *see also Second LMDS Report and
    Order,* 12 FCC Rcd at 12658 ¶¶ 261-262.

[^88]: *Id.* at 12658 ¶ 261; *see also id.* 12660 ¶ 269. The Commission
    elaborated on what may constitute "substantial service" for LMDS by
    offering some specific examples, which are sometimes referred to as
    "safe-harbors." *See id.* at 12660-12661 ¶¶ 269-270.

[^89]: *See id.* at 12659 ¶ 266.

[^90]: *See* 47 C.F.R. § 101.1011(a).

[^91]: 47 C.F.R. § 1.946(e)(1).

[^92]: 47 C.F.R. § 1.946(e)(2), (3).

[^93]: 47 C.F.R. § 1.925.

[^94]: *Id.; see also Northeast Cellular Telephone Co. v. FCC*, 897 F.2d
    1164, 1166 (D.C. Cir. 1990); *WAIT Radio v. FCC*, 418 F.2d 1153
    (D.C. Cir. 1969), *aff\'d*, 459 F.2d 1203 (1972), *cert. denied*,
    409 U.S. 1027 (1972); 47 C.F.R. § 1.3.

[^95]: *See* 47 C.F.R. § 101.1011(a); *Second LMDS Report and Order,* 12
    FCC Rcd at 12658 ¶¶ 261-262; *id.* at 12660 ¶ 269 ("At the 10-year
    period, we will require all LMDS licensees to submit an acceptable
    showing to the Commission demonstrating that they are providing
    substantial service.").

[^96]: M2Z Objection at 7.

[^97]: SpeedUSNY Request at 5 (*citing* In the Matter of Applications of
    Biztel, Inc. for Renewal of 39 GHz Licenses for Stations WMT884,
    Omaha, Nebraska and WPJA898, San Juan, Puerto Rico, *Memorandum
    Opinion and Order*, 18 FCC Rcd 3308 (WTB PSPWD 2003) (*Biztel*)).

[^98]: *See Biztel,* 18 FCC Rcd at 3310-3311 ¶¶ 6-8.

[^99]: *See id.* Accordingly, the former Public Safety and Private
    Wireless Division of the Bureau concluded that, based on the record,
    Biztel demonstrated the provision of substantial service in the
    licensed areas even though it did not fall within one of the
    safe-harbors. *See id.* at 3311 ¶ 8.

[^100]: *See* Substantial Service Showing at 2-3. SpeedUSNY also notes
    that it entered into an agreement with XO in 2004 to allow XO to use
    the spectrum to test applications. *See id.* at 3.

[^101]: M2Z Objection at 7-9.

[^102]: *See* Leap Wireless International, Inc., *Memorandum Opinion and
    Order*, 16 FCC Rcd 19573, 19575 ¶ 7 (WTB CWD 2001) (demonstration of
    diligence in attempting to construct facilities is justification for
    extension of time to demonstrate substantial service).

[^103]: Consolidated Request of the WCS Coalition for Limited Waiver of
    Construction Deadline for 132 WCS Licenses, *Order*, 21 FCC Rcd
    14134 (WTB 2006) (*WCS Extension Order*).

[^104]: *See WCS Extension Order,* 21 FCC Rcd at 14139 ¶ 10.

[^105]: *See WCS Extension Order,* 21 FCC Rcd at 14139 ¶ 10.

[^106]: *See WCS Extension Order,* 21 FCC Rcd at 14137-14141 ¶¶ 7-11
    (discussed above); Request of Warren C. Havens for Waiver of The
    Five-Year Construction Requirement For 220 MHz Service Phase II
    Economic Area and Regional Licensees, *Memorandum Opinion and
    Order*, 19 FCC Rcd 12994 (WTB 2004) (widespread equipment
    availability difficulties facing licensees and confining technical
    characteristics warranted granting an extension of time *to all
    licensees* because the two companies that originally manufactured
    equipment no longer did so and because the loss of that equipment
    was a unique circumstance that frustrated licensees' efforts to meet
    the construction requirements); FCI 900, Inc. Expedited Request for
    3-Year Extension of 900 MHz Band Construction Requirements,
    *Memorandum Opinion and Order*, 16 FCC Rcd 11072 (WTB 2001)
    (granting limited extension to *all* 900 MHz Specialized Mobile
    Radio (SMR) licensees because the record demonstrated that there was
    no 900 MHz SMR digital voice equipment available in the near-term);
    Maritel, Inc., *Order,* 18 FCC Rcd 24670 (WTB PSPWD 2003) (extension
    granted to licensee seeking to develop a maritime data network using
    an innovative data technology that is specifically geared toward the
    maritime community).

[^107]: SpeedUSNY Waiver Request at 3.

[^108]: With the exception of the New York BTA, the A Block spectrum of
    all other LMDS BTAs was available for auction in its entirety and
    therefore licensed to a single applicant (with a single grant date
    and a single construction and substantial service deadline).
    Moreover, any license created by disaggregation from the original A
    Block license would, pursuant to the Commission's disaggregation
    rules, retain the same common expiration date of the original
    license.

[^109]: *See discussion supra* at paragraph 8.

[^110]: As stated earlier, Nextlink also holds Station WPLM397 (the B1
    and B2 Bands) which covers all 26 counties of the New York BTA. *See
    supra* note *Error: Reference source not found*.

[^111]: *See, e.g., Second LMDS Report and Order,* 12 FCC Rcd at 12606
    ¶¶ 135-139. The Commission has recognized that BTAs afford LMDS
    licensees greater economies of scale than smaller geographic service
    areas. *See, e.g., Second LMDS Report and Order,* 12 FCC Rcd at
    12606 ¶ 138.

[^112]: 47 C.F.R. § 1.946.

[^113]: M2Z Objection at 15.

[^114]: M2Z Objection at 15 (*citing* Application of ITV, Inc. to Renew
    the License for Station KIVD0011, San-Francisco-Oakland, California,
    in the 218-219 MHz Service, *Memorandum Opinion and Order,* 22 FCC
    Rcd 1908 (WTB MD 2007) (*ITV*)).

[^115]: *See* Letter from Katherine M. Harris, Deputy Chief, Mobility
    Division, Wireless Telecommunications Bureau, FCC to Buddy C.
    Stanley, ITV, Inc., *Letter Order,* 20 FCC Rcd 9548 (WTB MD 2005),
    *aff'd, ITV*, 22 FCC Rcd at 1911-1915 ¶¶ 6-12.

[^116]: Letter from Thomas Derenge, Deputy Chief, Mobility Division,
    Wireless Telecommunications Bureau, FCC, to Stephen E. Coran,
    Esquire, *Letter Order,* 22 FCC Rcd 1921, 1921 (WTB MD 2007); *see
    also id.* at 1922 (noting that a third party's failure to perform in
    accordance with a business agreement is not an unusual circumstance
    that justifies a waiver of the rules).

[^117]: *See* Applications of Thomas A. Seaman, Receiver for Vitech
    Corporation, *Order,* 22 FCC Rcd 1916 (WTB MD 2007); Letter from
    Thomas Derenge, Deputy Chief, Mobility Division, Wireless
    Telecommunications Bureau, FCC, to Rachael E. Schwartz, Joshua J.
    Izenberg, Baker & McKenzie, *Letter Order,* 20 FCC Rcd 12325 (WTB MD
    2005). Lastly, in Panamsat License Corp., *Memorandum Opinion and
    Order*, 15 FCC Rcd 18720, 18723 ¶ 10 (IB 2000), the International
    Bureau found that "\[t\]he filing of a license modification
    application does not justify an extension of a milestone schedule
    because the decision to seek a modification of one's license is a
    business decision wholly within the discretion and control of the
    licensee."

[^118]: 47 C.F.R. § 1.945(e).

[^119]: *Id.*

[^120]: *Id.*

[^121]: *See Central Television, Inc. and WTWV, Inc. v FCC*, 834 F.2d
    186, 190 (D.C. Cir. 1987); Peninsula Communications, Inc*.*,
    *Memorandum Opinion and Order and Order to Show Cause*, 16 FCC Rcd
    11364, 11368-9 ¶ 11 (2001); Applications of WinStar Wireless, Inc.
    for Licenses to Operate Point-to-Point Microwave Facilities in the
    38.6-40.0 GHz Frequency Band at Various Locations throughout the
    United States, *Memorandum Opinion and Order,* 14 FCC Rcd. 20533
    (2001); R F Data, Inc., *Memorandum Opinion and Order*, 16 FCC Rcd
    22410, 22411 ¶ 5 (WTB PSPWD 2001); Application of Electronic Radio
    Services, Inc., *Order on Reconsideration,* 17 FCC Rcd 16104 (WTB
    PSPWD 2001).

[^122]: The Commission may waive any provision of its rules on its own
    motion and for good cause shown. *See* 47 C.F.R. § 1.3. A rule may
    be waived where the particular facts make strict compliance
    inconsistent with the public interest. *Northeast Cellular Telephone
    Co. v. FCC*, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (*Northeast
    Cellular*). In sum, waiver is appropriate if special circumstances
    warrant a deviation from the general rule, and such deviation would
    better serve the public interest than strict adherence to the
    general rule.