**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Nos. 20021231AAB,       |
|                                  | *) | 20021231AAC, 20021231AAD and |
| OKLAHOMA WESTERN TELEPHONE       | ** | 20021231AAE                  |
| COMPANY, INC.                    |    |                              |
|                                  | *  |                              |
| Applications For Renewal of      | *) |                              |
| Broadband Radio Service Stations | ** |                              |
| WLK382, WNTC500, WNTC664 and     |    |                              |
| WNTD797, Clayton, Oklahoma       | *  |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 17, 2008 Released: March 20, 2008**

By the Commission: Commissioner Adelstein issuing a statement.

# INTRODUCTION

1.  On December 20, 2004, Oklahoma Western Telephone Company, Inc.
    (OWTC) filed an application for review[^1] of the November 19, 2004
    decision[^2] of the Broadband Division, Wireless Telecommunications
    Bureau (Division). The Division's decision denied OWTC's request for
    acceptance of a blanket request for reinstatement[^3] of four
    licenses of a Broadband Radio Service (BRS) system[^4] in Clayton,
    Oklahoma.[^5] The Division also denied OWTC's related request for
    waiver of various filing deadlines, including deadlines for filing
    renewal applications.[^6] We also have before us a Supplement to its
    Application for Review filed by OWTC[^7] and responsive
    pleadings.[^8] Because we find that OWTC's waiver request satisfies
    the applicable waiver standard, as discussed below, we grant OWTC's
    application for review and reinstate the above-captioned renewal
    applications. We also have before us a request for waiver of the
    transition rules in Sections 27.1230-27.1239 of our Rules.[^9] For
    the reasons discussed below, we dismiss the waiver request without
    prejudice.

# bACKGROUND

2.  On the dates shown in Table 1 below, OWTC was granted authorizations
    to operate the Stations. The Stations are used to provide television
    programming to a rural mountainous area whose reception of
    commercial broadcast stations is impaired by distance and terrain
    blockage.[^10] In 1997, the Stations were serving 396
    subscribers;[^11] by 2003, the number of subscribers had declined to
    264.[^12] The licenses carried an expiration date of May 1, 2001.

    **Table 1**

  ----------- -------------- -------------- ------------- -------------- --------------
  **Station   **Channels**   **Location**   **File No.**  **Date License **Expiration
  Call Sign**                                             Issued**       Date**

  WLK382      E Channel      Clayton, OK    20021231AAB   Sept. 29, 1995 May 1, 2001
              Group                                       (renewal)      

  WNTC500     Channel H2     Clayton, OK    20021231AAC   Aug. 30, 1999  May 1, 2001
                                                          (assignment)   

  WNTC664     Channel H1     Clayton, OK    20021231AAD   Mar. 30, 1995  May 1, 2001
                                                          (renewal)      

  WNTD797     Channel  H3    Clayton, OK    20021231AAE   Aug. 30, 1999  May 1, 2001
                                                          (assignment)   
  ----------- -------------- -------------- ------------- -------------- --------------

3.  Under the Commission's Rules pertaining to BRS, licensees must file
    their petitions for renewal applications between thirty and sixty
    days prior to the license expiration date.[^13] OWTC did not file a
    renewal application prior to the expiration of its licenses. OWTC
    states that it was under the erroneous impression that one of its
    consultants had prepared and filed renewal applications for all four
    of the Stations.[^14]

4.  On December 30, 2002, OWTC filed the captioned blanket renewal
    application for the Stations' licenses. On December 31, 2002, OWTC
    filed a request for waiver of Sections 21.3, 21.11 and 21.44 of the
    Commission's Rules.[^15] The Division interpreted the waiver request
    as a request for reinstatement because the licenses expired before
    OWTC filed its application. OWTC argued that its request should be
    granted because OWTC provides local news and entertainment channels;
    public, educational and government access channels; and
    retransmitted local over-the-air television stations that provide
    urgent weather alerts, serving a sparsely populated area with no
    other means to receive such alerts.[^16] OWTC stated that its
    subscribers value its system highly because they are situated in an
    area where natural disasters such as tornadoes are prevalent. OWTC
    further stated that there is no traditional cable television
    franchise in its service area, so that its customers have little
    alternative in obtaining reliable video services, especially
    services providing critical local programming.[^17] Finally, OWTC
    stated that it has implemented internal controls to ensure that
    future renewal applications for these licenses will be filed on
    time.[^18]

5.  On February 14, 2003, Nucentrix Spectrum Resources, Inc. (Nucentrix)
    filed a petition to deny OWTC's request for reinstatement.[^19]
    Nucentrix stated that, as the holder of geographic area licenses for
    BRS Basic Trading Areas ("BTAs") served in part by OWTC's
    Stations,[^20] it had the exclusive right to file long-form
    applications to operate wireless cable television systems in any
    portions of those BTAs where the service areas of forfeited
    incumbent stations have been merged with the BTAs.[^21] OWTC urged
    the Division to reject the Petition to Deny because Nucentrix had
    filed a voluntary Chapter 11 bankruptcy petition and that it would
    not be wise policy to allow a collapsing company to take over OWTC's
    BRS stations.[^22] On April 7, 2004, the Commission authorized
    assignment of the Nucentrix BTA authorizations in question to Nextel
    Communications, Inc.[^23]

6.  On November 19, 2004, the Division denied OWTC's request for
    reinstatement of its renewal applications for the Stations and for
    waiver of Sections 21.3, 21.11, and 21.44 of the Commission's
    Rules.[^24] Section 21.11(c) of the Commission's rules required OWTC
    to file its renewal applications between March 1, 2001 and April 1,
    2001, while OWTC filed its renewal applications on December 30,
    2002.[^25] The Division further found that OWTC's petition for
    reinstatement also was untimely because OWTC had until June 1, 2001,
    thirty days after the license expiration date, to file a petition to
    reinstate its licenses, but did not do so until December 31,
    2002.[^26] The Division then found that OWTC did not make the
    requisite showing that grant of a waiver was warranted under the
    circumstances presented because OWTC provided no compelling public
    policy or other reason to waive the Commission's rules with respect
    to license renewals or petitions for reinstatement.[^27] In light of
    the Stations role in disseminating emergency information and the
    likelihood that alternative services would not be in operation in
    the immediate future, however, the Division granted OWTC a Special
    Temporary Authority (STA) to operate its facilities while it makes
    alternative arrangements for delivering programming or other
    communication services in the future.[^28]

7.  In the AFR, Oklahoma Western argues that the Bureau applied a "harsh
    standard"[^29] that is contrary to the public interest. OWTC
    emphasizes that it "provides essential local video programming to
    viewers in a sparsely populated, rural area in Southeastern
    Oklahoma, where there is no cable television service and at best,
    spotty over-the-air television."[^30] OWTC's system provides urgent
    weather alerts for an area where it claims natural disasters (such
    as tornados) are prevalent.[^31] OWTC also argues that the denial of
    its reinstatement request is inconsistent with a case granting a
    waiver of the requirement to file construction notifications[^32]
    and with a case where late-filed renewals filed prior to the
    expiration of the licenses were processed.[^33]

8.  On February 16, 2007, Fixed Wireless Holdings, LLC, a wholly owned
    subsidiary of Clearwire Corporation, filed an Initiation Plan for
    the Paris, Texas BTA, B341, which includes the geographic center
    point of OWTC's Geographic Service Area (GSA).[^34] Although
    Clearwire included OWTC's licenses for the Stations in its
    Initiation Plan for B341, it noted that OWTC's authorizations for
    the Stations expired on May 1, 2001.[^35]

9.  On February 28, 2007, OWTC filed a Supplement to its Application for
    Review to bring to the Commission's attention the *Forty-One
    Late-Filed MO&O* released by the Division.[^36] In that decision the
    Division reinstated the late-filed renewal application of 41 EBS
    licensees to promote the transition of the 2500-2690 MHz band by
    providing certainty on which licensees should be transitioned to the
    new band plan.[^37] OWTC argues that its BRS licenses to operate the
    Stations should also be reinstated under *Melody Music*, which holds
    that licensees that are similarly situated should be similarly
    treated.[^38]

10. On March 29, 2007, Sprint Nextel filed a Reply to OWTC's
    Supplement.[^39] Sprint Nextel is the BTA holder for B341 (Paris,
    Texas), B153 (Ft. Smith, Arkansas), B267 (McAlester, Oklahoma), and
    B004 (Ada, Oklahoma), which are encumbered by OWTC's GSA.[^40]
    Sprint Nextel argues that the Division correctly dismissed OWTC's
    renewal application.[^41] Sprint Nextel further argues that the
    Division's decision in the *Forty-One Late-Filed* *MO&O* reverses
    Commission policy in violation of the Administrative Procedure
    Act.[^42] Moreover, Sprint Nextel argues that because OWTC's GSA
    dissolved when it did not timely-file a renewal application and its
    license automatically cancelled, reinstating OWTC's renewal
    application would be an involuntary modification of Sprint Nextel's
    BTA licenses for B341, B153, B267, and B004 in violation of Section
    316 of the Communications Act.[^43]

11. On April 13, 2007, OWTC filed a request for a waiver of Sections
    27.1230-27.1239 to permit it to "opt-out" of the transition of the
    2500-2690 MHz band and continue to operate under the old technical
    rules.[^44] OWTC notes that it is seeking a waiver because the
    Commission has not yet acted on its request to reinstate its renewal
    applications, thus causing it to be unable to determine whether it
    should undertake the costs of transitioning to the new band
    plan.[^45]

12. On May 4, 2007, OWTC filed a Motion for Leave to file a responsive
    pleading[^46] and a Response to Sprint Nextel's Reply.[^47] OWTC
    maintains that because Sprint Nextel's Reply is in the nature of an
    Opposition to OWTC's Application for Review, it is entitled to
    respond.[^48]

13. As of March 2008, OWTC provides service to 127 customers for
    \$13.95/month.[^49] OWTC believes that the decline in subscribership
    is "directly related to the uncertainty associated with OWTC's BRS
    licenses."[^50] OWTC also provides service to schools in Clayton,
    Oklahoma at no cost.[^51] Virtually all of OWTC's customers are not
    served by any franchised cable systems.[^52] OWTC's programming
    includes locally originated programming and network affiliated
    channels originating in Ada, Oklahoma, Sherman, Texas, and Fort
    Smith, Arkansas.[^53]

# DISCUSSION

14. We first address OWTC's Supplement and Sprint Nextel's Reply. Under
    Section 1.115(d) of the Commission's Rules, an application for
    review, and any supplements thereto, must be filed within 30 days of
    the public notice of such action.[^54] In this case, the public
    notice of the action is the date the Division's decision was
    released.[^55] The Division's decision was released on November 19,
    2004.[^56] Thus, OWTC's application for review and any supplements
    were to be filed on or before December 20, 2004. Oklahoma Western
    filed its supplement on February 28, 2007, more than two years after
    it was due under Section 1.115(d) of the Commission's Rules.
    Furthermore, since, as explained further below, we are granting
    Oklahoma Western relief for reasons independent of the reasoning
    discussed in OWTC's supplement, the supplement is also moot. We
    therefore dismiss OWTC's supplement. Also, under Section 1.115(d) of
    the Rules, oppositions are to be filed within 15 days after the
    application for review is filed.[^57] Oppositions were therefore due
    on or before January 4, 2005. Sprint Nextel did not file a timely
    opposition to the AFR. Sprint Nextel filed its Reply on March 29,
    2007, more than two years after oppositions were due, and more than
    15 days after OWTC filed its supplement. We therefore dismiss Sprint
    Nextel's Reply as untimely and moot. We further dismiss OWTC's
    Motion for Leave to file a responsive pleading and a Response to
    Sprint Nextel's Reply as moot.

15. As noted above, under the Commission's Rules pertaining to BRS,
    licensees must file their petitions for renewal applications between
    thirty and sixty days prior to the license expiration date.[^58] If
    a licensee fails to file a timely renewal application, the licensee
    automatically forfeits the BRS station license as of the expiration
    date.[^59] A licensee may file a petition for reinstatement of a
    forfeited license within thirty days of the license expiration
    date.[^60] A timely filed petition for reinstatement must adequately
    explain the failure to timely file the renewal application, and
    specify the procedures the licensee has established to ensure timely
    filings in the future.[^61] Section 21.44(b) of the Commission's
    Rules limits consideration of reinstatement petitions to petitions
    that are filed within thirty days of the expiration date of the
    license.[^62]

16. We agree with the Division that, absent a waiver, OWTC would not
    comply with the Commission's rules concerning applications for
    renewal and reinstatement of its license. Specifically, OWTC's
    licenses expired on May 1, 2001, and it did not file a renewal
    application until December 30, 2002, more than eighteen months late,
    and beyond the timeframe established by the Commission's rules for
    filing a petition for reinstatement.

17. Contrary to the Division's finding, though, we conclude that OWTC
    made the requisite showing that a grant of a waiver was warranted
    under Section 21.19 of our rules, which applied to OWTC at the time
    that it filed its waiver request.[^63] Under Section 21.19, a waiver
    will not be granted except upon an affirmative showing that:

    \(a\) The underlying purpose of the rule would not be served, or
    would be frustrated, by its application in the particular case, and
    that grant of the waiver is otherwise in the public interest; or

    \(b\) The unique facts and circumstances of a particular case render
    application of the rule inequitable, unduly burdensome or otherwise
    contrary to the public interest. Applications must also show the
    lack of a reasonable alternative.

    In addition, a request for waiver must contain a statement of
    reasons sufficient to justify a waiver.[^64]

18. While the Division discussed the first prong of the waiver
    standard,[^65] there is little evidence in the Division's *MO&O* to
    show that the Division analyzed OWTC's argument under the second
    prong of the waiver standard. The Division did not enunciate the
    second prong of the waiver standard, nor did it affirmatively decide
    whether the unique facts and circumstances of OWTC's situation would
    render the application of the rule inequitable, unduly burdensome or
    otherwise contrary to the public interest. The Division merely
    stated that "\[w\]e find no merit in OWTC's argument that it would
    be contrary to public policy to allow its call signs to fall into
    the hands of a company that has filed a voluntary petition for
    bankruptcy,"[^66] a reference to an argument made by OWTC concerning
    Nucentrix, the then BTA holder who had the exclusive right to apply
    for OWTC's channels if the licenses for the Stations were cancelled.
    The Division did not analyze the remainder of OWTC's argument under
    the second prong of the waiver standard. This oversight was in
    error.

19. In reviewing OWTC's request under the second prong of the waiver
    standard, we conclude that OWTC has justified a waiver. We also find
    that the Division erred in concluding that there was no compelling
    public policy rationale for a waiver.[^67] In particular, we
    conclude that requiring OWTC to terminate its operations would be
    inequitable and unduly burdensome to OWTC's customers. OWTC has
    demonstrated that its customers in rural Southeastern Oklahoma have
    no viable alternative to OWTC's service. Virtually all of OWTC's
    customers cannot receive service from franchised cable systems.[^68]
    OWTC also provides a valuable service to the community through
    weather alerts and provides programming that would otherwise not be
    available to its customers. We conclude that it would be inequitable
    and overly harsh to subject OWTC's customers to the disruption that
    would result from terminating OWTC's services. We find that it is in
    the public interest to permit OWTC to renew its licenses to permit
    it to continue to provide regional programming and emergency alerts
    to the citizens of Southeastern Oklahoma. We also note that OWTC has
    taken corrective measures to assure that in the future it will
    timely renew its licenses for the Stations.[^69] Under these
    circumstances, we will waive the rules and excuse the late filing of
    OWTC's renewal applications.

20. Because OWTC requests a waiver of the transition rules solely
    because it is uncertain whether its licenses will be renewed,[^70]
    we dismiss, without prejudice, OWTC's request to opt-out of the
    transition of the 2500-2690 MHz band. We further grant OWTC
    forty-five days from the release date of this *Memorandum Opinion
    and Order* to request a waiver to opt-out of the transition. We also
    grant Fixed Wireless Holdings, LLC, the proponent of BTA B341, an
    additional ninety days from the release date of this *Memorandum
    Opinion and Order* to complete the transition planning period for
    BTA B341 because adjustments to the transition plan may be needed to
    reflect OWTC's reinstated licenses.[^71]

# CONCLUSION AND ORDERING CLAUSES

21. OWTC has justified a waiver under the second prong of the waiver
    standard. Accordingly, we will grant the AFR, reinstate its renewal
    applications, and direct processing of those renewal applications.
    We dismiss OWTC's request to opt-out of the transition and grant
    OWTC 45 days from the release date of this *Memorandum Opinion and
    Order* to request a new waiver to opt-out of the transition.

22. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 5(c)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    155(c), and Section 1.115 of the Commission's Rules, 47 C.F.R. §
    1.115, the Application for Review filed by Oklahoma Western
    Telephone Company, Inc. on December 20, 2004 IS GRANTED to the
    extent indicated herein.

23. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 5(c) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c),
    and Section 1.949 of the Commission's Rules, 47 C.F.R. § 1.949, that
    Oklahoma Western Telephone Company, Inc.'s applications to renew
    Stations WLK382, WNTC500, WNTC664, and WNTD797, File Nos.,
    20021231AAB, 20021231AAC, 20021231AAD and 20021231AAE ARE REINSTATED
    AND ARE REFERRED to the Wireless Telecommunications Bureau,
    Broadband Division for further processing consistent with this
    *Memorandum Opinion and Order*.

24. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), and Sections 1.925
    and 27.1231(g) of the Commission's Rules, 47 C.F.R. §§ 1.925,
    27.1231(g), that the Request for Waiver filed by Oklahoma Western
    Telephone Company, Inc. on April 13, 2007 IS DISMISSED WITHOUT
    PREJUDICE.

25. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), and Sections 1.925
    and 27.1231(g) of the Commission's Rules, 47 C.F.R. §§ 1.925,
    27.1231(g), that Oklahoma Western Telephone Company, Inc. has until
    forty-five days from the release date of this *Memorandum Opinion
    and Order* to file a new opt-out waiver request.

26. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), and Sections
    1.115(d) of the Commission's Rules, 47 C.F.R. § 1.115(d), that the
    Supplement to Application for Review filed by Oklahoma Western
    Telephone Company, Inc. on February 28, 2007 and the Reply of Sprint
    Nextel Corporation to Supplement to Application for Review filed on
    March 29, 2007 ARE DISMISSED.

27. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), that the Motion for
    Leave to File Responsive Pleading filed by Oklahoma Western
    Telephone Company, Inc. on May 4, 2007 IS DENIED and the Response to
    Reply of Sprint Nextel Corporation to Supplement to Application for
    Review filed by Oklahoma Western Telephone Company, Inc. on May 4,
    2007 IS DISMISSED.

28. IT IS FURTHER ORDERED that the transition planning period for Fixed
    Wireless Holdings, LLC with respect to the transition for Basic
    Trading Area B341 is extended until ninety days from the release of
    this *Memorandum Opinion and Order*.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Application of Oklahoma Western Telephone Company, Inc. for Renewal
of Broadband Radio Service Stations WLK382, WNTC500, WNTC664, and
WNTD797, Clayton, Oklahoma.*

I issue this statement to place emphasis on the narrow scope of our
decision today. We should allow waivers of our license renewal
applications requirements only under rare circumstances. Here, Oklahoma
Western Telephone Company provides a substantial public service by
providing urgent weather alerts in an area where natural disasters are
prevalent, and by providing local news and entertainment channels and
public education and government access channels to a sparsely populated
area. I also take assurances from Oklahoma Western Telephone Company's
commitment to take corrective measures to ensure that it will timely
renew its licenses for these stations in the future. Under these
circumstances, I approve this waiver of our rules.

[^1]: Application for Review (filed Dec. 20, 2004) (AFR).

[^2]: Oklahoma Western Telephone Company, Inc., *Memorandum Opinion and
    Order*, 19 FCC Rcd 22780 (WTB BD 2004) (*MO&O*).

[^3]: *See* Letter from David A. Irwin, Esq., counsel to OWTC, to
    Federal Communications Commission, Wireless Bureau Applications
    (filed Dec. 31, 2002) (Reinstatement and Waiver Requests). OWTC
    styles its filing as a "blanket renewal application," but we treat
    it as a request for reinstatement because OWTC's licenses expired
    before it filed.

[^4]: On July 29, 2004, the Commission released a *Report and Order and
    Further Notice of Proposed Rulemaking* that transforms the rules
    governing the Multipoint Distribution Service (MDS) and the
    Instructional Television Fixed Service (ITFS) in order to encourage
    the deployment of broadband services by commercial and educational
    entities. 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, et al.; WT Docket Nos. 03-66, *et
    al*., *Report and Order and Further Notice of Proposed Rulemaking*,
    19 FCC Rcd 14165 (2004) (*BRS/EBS R&O*). To better reflect the
    forward-looking vision for these services, the Commission renamed
    MDS the Broadband Radio Service (BRS) and ITFS the Educational
    Broadband Service. Because the new rules have taken effect, we will
    refer to the services by their new names. *See also* 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, et
    al.; WT Docket Nos. 03-66, *et al*., *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) (*3rd
    MO&O*).

[^5]: The stations' call signs are WLK382, WNTC500, WNTC664 and WNTD797
    ("the Stations").

[^6]: *MO&O*, 19 FCC Rcd. 22780 at ¶ 1.

[^7]: Supplement to Application for Review (filed Feb. 28, 2007)
    (Supplement).

[^8]: Reply of Sprint Nextel Corporation to "Supplement to Application
    for Review" (filed Mar. 29, 2007) (Sprint Nextel Reply); Motion for
    Leave to File Responsive Pleading (filed May 4, 2007) (OWTC Motion);
    and Response to Reply of Sprint Nextel Corporation to Supplement to
    Application for Review (filed May 4, 2007) (OWTC Response).

[^9]: Request for Waiver (filed Apr. 13, 2007) (Opt-out Waiver Request).

[^10]: Letter from Gary G. Beikmann, Manager, Monte R. Lee and Company
    Consulting Engineers, to Lynne J. Milne, FCC Common Carrier Bureau,
    Mar. 27, 1992 (WLK382 Station File).

[^11]: Station WLK382 and WNTC664 1997 Annual Report.

[^12]: Station WLK382 2003 Annual Report.

[^13]: *See* 47 C.F.R. § 21.11(c) (2002). As a result of the
    restructuring of the 2500-2690 MHz band in 2004, the Commission
    consolidated the BRS/EBS procedural rules under Subpart F of Part 1
    of the Commission's rules and the BRS/EBS service specific rules in
    Part 27 of the Commission's Rules. *See BRS/EBS R&O* at ¶¶ 183 and
    186. *See* 47 C.F.R. § 1.949.

[^14]: *See* Reinstatement and Waiver Requests at 2.

[^15]: *Id*.

[^16]: *Id.* at 3.

[^17]: *Id.*

[^18]: *Id.* at 4.

[^19]: Petition to Deny (filed Feb. 14, 2003).

[^20]: The authorizations are for the Paris, Texas (BTA341), Fort Smith,
    Arkansas (BTA153), and McAlester, Oklahoma (BTA267) BTAs. Petition
    at 2.

[^21]: Petition to Deny at 2.

[^22]: Second Supplemental Pleading at 4.

[^23]: *See* Wireless Telecommunications Bureau Grants Consent to Assign
    Multipoint Distribution Service Station Licenses, *Public Notice*,
    19 FCC Rcd 6329 (WTB 2004).

[^24]: Former Section 21.3(a) of the Commission's Rules stated, "No
    person shall use or operate apparatus for the transmission of energy
    or communications or signals by radio except under, and in
    accordance with, an appropriate authorization granted by the Federal
    Communications Commission." 47 C.F.R. § 21.3(a) (2002). Former
    Section 21.11(c) of the Commission's Rules provided, in pertinent
    part, "Except for renewal of special temporary authorizations, FCC
    Form 405 (\"Application for Renewal of Station License\") must be
    filed in duplicate by the licensee between thirty (30) and sixty
    (60) days prior to the expiration date of the license sought to be
    renewed." 47 C.F.R. § 21.11(c) (2002). Former Section 21.44(a)(2) of
    the Commission's Rules provided, "A license shall be automatically
    forfeited in whole or in part without further notice to the licensee
    upon: . . . The expiration of the license period specified therein,
    unless prior thereto an application for renewal of such license has
    been filed with the Commission . . ." 47 C.F.R. § 21.44(a)(2)
    (2002).

[^25]: *MO&O*, 19 FCC Rcd at 22782-22783 ¶ 7.

[^26]: *Id.* at 22783 ¶ 8 (*citing* 47 C.F.R. § 21.44(b)(1) (2002)).

[^27]: *Id.* at 22784 ¶ 13.

[^28]: *MO&O*, 19 FCC Rcd at 22784 ¶ 14.

[^29]: AFR at 12.

[^30]: *Id.* at 3.

[^31]: *Id.* at 4.

[^32]: *Id.* at 7-8, *citing* Northwest Communications Cooperative,
    *Memorandum Opinion and Order*, 19 FCC Rcd 23812 (WTB BD 2004).

[^33]: *Id.* at 6-7, *citing* Jonsson Communications Corp. d/b/a Quadra
    Vision Digital Television, *Memorandum Opinion and Order*, 17 FCC
    Rcd 22697 (WTB PSPWD 2002).

[^34]: Letter from Terri B. Natoli, V.P. Regulatory Affairs & Public
    Policy to Marlene Dortch, Federal Communications Commission (dated
    Feb. 16, 2007).

[^35]: *Id*. at Exhibit 1.

[^36]: Supplement at 1.

[^37]: *Id*. at 2.

[^38]: *Id.* at 3 (*citing Melody Music, Inc. v. Federal Communications
    Commission*, 345 F.2d 730 (1965)).

[^39]: Sprint Nextel Reply.

[^40]: *Id*. at 3.

[^41]: *Id*. at 2.

[^42]: *Id*. at 6.

[^43]: *Id.* at 5 and 8.

[^44]: Opt-out Waiver Request.

[^45]: *Id*. at 5.

[^46]: OWTC Motion.

[^47]: OWTC Response.

[^48]: OWTC Motion at 1.

[^49]: *See* Letter from Scott Woodworth, Esq., counsel for Oklahoma
    Western Telephone Company to Marlene H. Dortch, Secretary, Federal
    Communications Commission (filed Mar. 13, 2008) (*OWTC March 2008 Ex
    Parte*) at 1.

[^50]: *Id.* at 1-2 n.3. Subsequent to the *MO&O*, OWTC provided notice
    to its subscribers that it might be required to terminate its
    service. *See* i*d.* at Attachment 1.

[^51]: *Id.* at 1.

[^52]: *Id.* at 2.

[^53]: *Id.* at 2.

[^54]: 47 C.F.R. § 1.115(d).

[^55]: 47 C.F.R. § 1.4(b)(2).

[^56]: *MO&O*.

[^57]: 47 C.F.R. § 1.115(d).

[^58]: *See* 47 C.F.R. § 21.11(c) (2002).

[^59]: Burlington Cablevision, Inc., *Order on Reconsideration*, 13 FCC
    Rcd 772 ¶ 7 (VSD MMB 1998) (*Burlington*); Superior Broadcasting
    Corporation, *Memorandum Opinion and Order*, 7 FCC Rcd 7543 (DRB CCB
    1992) (*Superior*); *see also* 47 C.F.R. § 21.44 (2002).

[^60]: *Burlington*, 13 FCC Rcd 772 ¶ 7 *citing* 47 C.F.R. § 21.44(b)(1)
    -- (3) (2002).

[^61]: *Id*.

[^62]: *See* 47 C.F.R. § 21.44(b)(1) (2002).

[^63]: 47 C.F.R. § 21.19 (2002). Since January 10, 2005, the effective
    date of the rules adopted in the *BRS/EBS R&O*, BRS licensees must
    meet the waiver standard set forth in 47 C.F.R. § 1.925(b)(3).

[^64]: *Id.* The waiver standard under Section 21.19 is the same as the
    standard set forth under Section 1.925(b)(3), which applies to BRS
    licensees as of January 10, 2005. 47 C.F.R. §§ 1.925(b)(3), 21.19.

[^65]: *MO&O*, 19 FCC Rcd at 22783 ¶ 9.

[^66]: *MO&O*, 19 FCC Rcd at 22784 ¶ 12.

[^67]: *See MO&O*, 19 FCC Rcd at 22784 ¶ 13.

[^68]: *OWTC March 2008 Ex Parte* at 2.

[^69]: AFR at 14.

[^70]: Opt-Out Waiver Request at 4-6.

[^71]: The 90-day transition planning period normally begins once an
    initiation plan is filed with the Commission. *See* 47 C.F.R. §
    27.1232(a). The proponent must provide each licensee with a
    transition plan within thirty days prior to the conclusion of the
    transition planning period. 47 C.F.R. § 27.1232(b). In this case, we
    are granting Fixed Wireless Holdings, LLC a new 90-day transition
    planning period, starting from the release date of this *Memorandum
    Opinion and Order*, to allow it to adjust its transition plan to
    account for OWTC's reinstated licenses. Fixed Wireless Holdings, LLC
    may provide a modified transition plan to each licensee, including
    OWTC, no later than thirty days prior to the end of the new
    transition planning period. Other licensees may provide
    counterproposals to that revised transition plan no later than 10
    days before the end of the transition planning period. *See* 47
    C.F.R. § 27.1232(c).