**Before the**

#  Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

WILDERNESS VALLEY TELEPHONE COMPANY ) FCC File Nos. 9901714, 9901715

)

Application and Request for Waiver to Operate )

a Microwave Path in the 6525-6875 MHz Band )

**ORDER**

**Adopted: July 5, 2000 Released: July 6, 2000**

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

**I. INTRODUCTION**

1\. We have before us a request[^1] by Wilderness Valley Telephone
Company (Wilderness) for a waiver of Section 101.141(a)(3) of the
Commission's Rules, to permit it to install a microwave transmitter that
does not meet the Commission's minimum payload capacity
requirements.[^2] For the reasons stated herein, we grant the waiver
request.

**II. BACKGROUND**

2\. Section 101.141(a)(3) of the Commission's Rules sets forth the
minimum capacity and loading requirements for microwave transmitters
employing digital modulation techniques and operating below 19.7 GHz
that are applied for, authorized, and placed in service after June 1,
1997.[^3] Pursuant to Section 101.141(a)(3), for equipment using a
nominal channel bandwidth of 10 MHz, the minimum payload capacity is
44.7 megabits per second (MBPS), which typically can accommodate 672
voice circuits.[^4]

3\. On May 12, 1999, Wilderness filed applications for authorization to
operate a 10 MHz path in the 6 GHz band.[^5] It requests a waiver of
Section 101.141(a)(3), because it wishes to use Avantek DR6-B (DR6-B)
transmitters, which have a digital payload capacity of 40 MBPS,
accommodating 576 channels.[^6] Wilderness states that because it serves
very few customers in a very sparsely populated area of northern
Minnesota, located within the George Washington State Forest, complying
with Section 101.141 would require it to use a transmitter which
provides far more capacity than Wilderness is likely to need or
utilize.[^7] Wilderness also represents that it can acquire DR6-B
transmitters for less than \$50,000, but a transmitter that complies
with Section 101.141 of the Commission's Rules costs three times that
amount.[^8] Wilderness states that its business purpose for operating
the proposed microwave link is to lessen the costs associated with its
current wireline connection, and the price of a compliant transmitter
would negate any projected savings.[^9] In addition, according to
Wilderness, the DR6-B is better suited than compliant equipment to the
rugged high-moisture environment of the area in which Wilderness
operates.[^10] Wilderness also states that overall spectrum use in this
area is extremely light.[^11]

## III. DISCUSSION

4\. We may grant a request for waiver when (i) the underlying purpose of
the rules(s) would not be served or would be frustrated by application
to the instant case, and a grant of the requested waiver would be in the
public interest; or (ii) in view of unique or unusual factual
circumstances, application of the rule(s) would be inequitable, unduly
burdensome or contrary to the public interest, or the applicant has no
reasonable alternative.[^12] For the reasons set forth below, we
conclude that a grant of the requested waiver is warranted.

5\. In *Alcatel Network Systems, Inc.,*[^13] we granted a request for
waiver of the rule prohibiting manufacture or import of transmitters not
meeting the minimum payload requirements.[^14] A waiver was sought in
order to provide non-compliant transmitters for use in a remote area of
Alaska.[^15] We determined that a waiver was warranted because (i) the
underlying purpose of the rules -- maximizing spectrum efficiency while
minimizing frequency congestion -- would not be frustrated by use of
non-complaint transmitters in an area with no prospects for spectrum
congestion, and a waiver would be in the public interest because it
would minimize the cost of providing communications services in a remote
area; and (ii) Alcatel had demonstrated unique circumstances rendering
application of the rule inequitable and unduly burdensome, including the
remoteness of the area in which the transmitters would be deployed and
the fact that the non-compliant transmitters were better suited to the
harsh Alaskan environment.[^16]

6\. We find that a waiver in this case is appropriate for similar
reasons. Specifically, Wilderness serves a sparsely populated and remote
forested area. The microwave path is located within a wilderness area
which is unlikely to become further developed and experience greater
frequency demands. Because overall spectrum use in the area is extremely
light, the underlying purpose of Section 101.141(a)(3), to ensure more
efficient frequency use, will not be detrimentally affected by allowing
this use of the non-compliant transmitters. As Wilderness also explains,
using the compliant transmitters will be three times more costly than
the non-compliant transmitters, which, in addition, are better suited
for the rugged climate and terrain of northern Minnesota.[^17] While
cost alone does not make the application of the Commission's Rules
inequitable, unduly burdensome or contrary to the public interest,[^18]
we find, in this context, when it is coupled with the unique geographic
challenges posed by the climate and terrain of northern Minnesota, it
constitutes a relevant factor in our determination of whether a waiver
is appropriate. Finally, the requested waiver is not of great magnitude,
in that Wilderness seeks to use equipment with only a slightly lower
payload capacity than the rules require.

**IV. ORDERING CLAUSES**

7\. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) and 309 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
and Sections 1.925 and 101.141(a)(3) of the Commission\'s Rules, 47
C.F.R. §§ 1.925, 101.141(a)(3), Wilderness Valley Telephone Company's
Request for Waiver filed on May 12, 1999 IS GRANTED, and the associated
applications, FCC File Nos. 9901714 and 9901715, WILL BE REFERRED to the
Public Safety and Private Wireless Division, Licensing and Technical
Analysis Branch for further processing consistent with this *Order.*

8\. This action is 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

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Wilderness Valley Telephone Company Request for Waiver (filed May
    12, 1999) (Waiver Request).

[^2]: 47 C.F.R. § 101.141(a)(3).

[^3]: *Id.*

[^4]: *Id.*

[^5]: FCC File Nos. 9901714, 9901715 (filed May 12, 1999).

[^6]: Waiver Request at 1.

[^7]: *Id*. Wilderness states that it serves 58 customers over a 78
    square mile area.

[^8]: *Id.*

[^9]: *Id*. at 3-4

[^10]: *Id.* at 1.

[^11]: *Id.*

[^12]: *See* 47 C.F.R. § 1.925(b)(3)(i)-(ii).

[^13]: Alcatel Network Systems, Inc., *Order*, 11 FCC Rcd 22407 (WTB PWD
    1996) (*Alcatel*).

[^14]: 47 C.F.R. § 101.139(f).

[^15]: *Alcatel*, 11 FCC Rcd at 22407 ¶ 1.

[^16]: *Id.* at 22408-09 ¶¶ 5-6. An additional circumstance was that the
    transmitters had been ordered before the cut-off date for
    manufacturing non-compliant transmitters, but not produced in time
    due to a supplier problem. *Id*. at 22408 ¶ 4.

[^17]: Waiver Request at 1.

[^18]: *See*, *e.g.*, Country Cousins, Inc, *Order*, DA 99-2540, ¶ 6
    (WTB PSPWD rel. Nov. 16, 1999).