Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Applications of            | *  | File Nos. BRMD-20010530AAA;  |
|                                  | *) | BRMD-20010530AAB             |
| GARY GOLDEN                      | ** |                              |
|                                  |    | File Nos. BPMD-20010802AAA;  |
| For Reinstatement and Renewal of | *  | BPMD-20010802AAB             |
| Multipoint Distribution Service  | *) |                              |
| Stations WMH477 and WMI306,      | ** |                              |
| Longview, Texas                  |    |                              |
|                                  | *  |                              |
| and                              | *) |                              |
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| NUCENTRIX SPECTRUM RESOURCES,    |    |                              |
| INC.                             | *  |                              |
|                                  | *) |                              |
| For Authority to Construct and   | ** |                              |
| Operate New Multipoint           |    |                              |
| Distribution Service Stations on | *  |                              |
| the E and F Channel Groups at    | *) |                              |
| Marshall, Texas                  | ** |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 25, 2004 Released: October 26, 2004**

By the Deputy Chief, Broadband Division, Wireless Telecommunications
Bureau:

# INTRODUCTION

1.  On May 30, 2001, Gary Golden filed applications seeking the
    reinstatement[^1] and renewal of expired licenses to operate
    Multipoint Distribution Service[^2] (MDS) Stations WMH477 (E Channel
    Group) and WMI306 (F Channel Group), Longview, Texas.[^3] On August
    2, 2001, Nucentrix Spectrum Resources, Inc. (Nucentrix) filed a
    Petition to Deny against the applications.[^4] On August 6, 2001,
    Nucentrix also filed applications seeking authority to construct and
    operate new MDS stations on the E and F Channel Groups at Marshall,
    Texas.[^5] On September 7, 2001, Mr. Golden filed a Petition to Deny
    against the Nucentrix applications.[^6] For the reasons discussed
    below, we deny the petition to deny filed by Nucentrix against the
    Golden applications and reinstate the licenses for Stations WMH477
    and WMI306. We also dismiss the petition to deny filed by Mr. Golden
    against the Nucentrix applications as moot.

# BACKGROUND

2.  On December 16, 1996, Mr. Golden acquired the licenses for Stations
    WMH477 and WMI306 via assignment from Fortuna Systems Corporation
    and Presco Corporation, respectively.[^7] At the time of the
    assignments, both licenses were due to expire on May 1, 2001.
    According to the Commission's records, no action was taken with
    regard to the licenses prior to expiration. On May 30, 2001, Mr.
    Golden filed, pursuant to Section 21.44 of the Commission's
    Rules,[^8] applications seeking the reinstatement and renewal of the
    expired licenses. The Application concedes that Mr. Golden received
    a timely notice reminding him to renew his licenses for Stations
    WMH477 and WMI306 before March 31, 2001.[^9] However, according to
    the Application, Mr. Golden did not review the notice until after
    March 31, 2001 because Mr. Golden and his wife had recently
    relocated to another state.[^10] In a statement attached to the
    Application, Mr. Golden explains that he has entered all relevant
    Commission filing deadlines in his personal calendar in both
    electronic and written form to insure timely filings in the
    future.[^11] The Application contends that Mr. Golden has therefore
    satisfied the requirements for seeking reinstatement of an expired
    MDS license.[^12] The Application concludes that Mr. Golden's
    continued operation of Stations WMH477 and WMI306 would be in the
    public interest because Stations WMH477 and WMI306 have been
    operating in the Longview, Texas community since Mr. Golden acquired
    the licenses in 1996 and because Mr. Golden has entered into excess
    capacity leases with ITFS applicants and licensees in the Longview
    market.[^13]

3.  On August 2, 2001, Nucentrix filed a Petition to Deny against the
    application.[^14] Nucentrix notes that the Commission has the
    discretion to determine if reinstatement would be in the public
    interest.[^15] Nucentrix contends that Mr. Golden's explanation for
    failing to timely renew his licenses for Stations WMH477 and WMI306
    is not a valid excuse for failing to meet his obligation.[^16]
    Moreover, Nucentrix alleges that "\[a\] physical investigation of
    the WMH477 and WMI306 site, including electronic monitoring of the
    stations' assigned E and F group channels, demonstrates that these
    stations are not in operation."[^17] Specifically, Nucentrix argues
    that, on July 19, 2001, Mr. Troy Willis, an RF Field Engineer, used
    frequency monitoring equipment to listen to each of the channels
    assigned to Mr. Golden and found no signals, transmission, or
    activity.[^18] In addition, Nucentrix asserts that Mr. Golden is not
    currently a lessee on the only tower at the site.[^19] Nucentrix
    therefore urges the Commission to deny the application.

4.  Mr. Golden filed his Opposition to Petition to Deny on August 15,
    2001.[^20] Mr. Golden states that his "equipment has been
    operational in accordance with the FCC's rules since he acquired the
    Stations in 1996. Moreover, the equipment is currently and has been
    for the entire period that \[Mr.\] Golden has been the licensee,
    located at the Stations' licensed site."[^21] Mr. Golden attached
    declarations by Mr. Phillips,[^22] Mr. Goodman,[^23] and Mr.
    Golden[^24] to the Opposition. Mr. Golden contends that the evidence
    set-forth by Nucentrix is insufficient to support a finding that he
    failed to operate in accordance with the Commission's Rules.[^25]
    Specifically, Mr. Golden challenges the sufficiency of the two
    declarations attached to and relied upon by the PTD.[^26] Mr. Golden
    asserts that the evidence set-forth in those declarations supports a
    host of alternative conclusions.[^27] Mr. Golden concludes that,
    notwithstanding the allegations raised by Nucentrix in the PTD, the
    Commission should grant his application because he has fully
    complied with the specific procedures set-forth in the Commission's
    Rules governing the reinstatement of an expired MDS license.[^28]

5.  On August 22, 2001, Nucentrix filed a Reply to Opposition to
    Petition to Deny.[^29] Nucentrix contends that the Opposition and
    the declarations attached thereto fail to demonstrate that Stations
    WMH477 and WMI306 are "actually operating."[^30] Nucentrix
    criticizes the Opposition's use of the NFL hypothetical. By relying
    on the NFL hypothetical, the Opposition conveniently avoids
    explaining why the stations were silent on July 19, 2001 or offering
    any indication as to actual programming transmitted by the
    stations.[^31] Nucentrix argues that, if the stations were only
    transmitting NFL programming during the football season, Mr. Golden
    would be obligated, pursuant to Section 21.911(a)(3)(v) of the
    Commission's Rules, to report "'each period of time in which the
    station rendered no service as authorized, if the time period was a
    consecutive period longer than 48 hours.'"[^32] In addition,
    Nucentrix reaffirms its findings that Stations WMH477 and WMI306 are
    not operating in accordance with the Commission's Rules. Nucentrix
    contends that field investigations performed by Mr. Willis on August
    8, 2001 and August 20, 2001 confirmed that Stations WMH477 and
    WMI306 were not operating as authorized.[^33] According to
    Nucentrix, none of the measurements taken by Mr. Willis on either
    date revealed the existence of any transmissions from the tower site
    on any of the channels licensed to Mr. Golden under call-signs
    WMH477 and WMI306.[^34] In addition, Nucentrix alleges the antenna
    installed at the site does not conform to that which Mr. Golden is
    licensed to use.[^35]

6.  By letter, dated December 7, 2001, the Video Services Division
    (Division) of the Mass Media Bureau requested that Mr. Golden
    provide more information in support of his application.[^36] Mr.
    Golden filed his response on January 7, 2001.[^37] Mr. Golden
    therein states that, according to the Certificates of Completion of
    Construction, Stations WMH477 and WMI306 were constructed on
    February 2, 1993 and January 12, 1995, respectively.[^38] He further
    declares that, at the time he acquired Stations WMH477 and WMI306 on
    or about December 16, 1996, he confirmed that the stations were
    "properly constructed and operational."[^39] Mr. Golden explains
    that, following his acquisition of the stations, he began
    re-transmitting off-air signals to thirty-two receive site locations
    in the Longview, Texas area.[^40] According to Mr. Golden, "the
    equipment has not been removed or rendered nonoperational for any
    period of time. . . ."[^41] In addition, Mr. Golden declares that
    "\[t\]here are no known period\[s\] where the frequencies assigned
    to these stations were not used to render any service authorized for
    a period of twelve months after construction was completed."[^42]
    When asked to provide copies of all annual reports filed, pursuant
    to Section 21.911 of the Commission's Rules,[^43] for Stations
    WMH477 and WMI306, Mr. Golden was only able to submit copies of
    annual reports filed for 1996, 1997, and 1999.[^44] However,
    according to the annual reports for both stations for the years of
    2001 and 2002, Mr. Golden leased, effective as of November 6, 2001,
    all of the transmission capacity to Clearwire Technologies, Inc.
    (Clearwire), to conduct trials of MDS and ITFS equipment by several
    manufacturers.[^45]

7.  On June 12, 2003, staff made a second request for additional
    information from Mr. Golden.[^46] Mr. Golden filed his response on
    July 14, 2003.[^47] Mr. Golden therein describes the procedures he
    has adopted to ensure the timely filing and record-keeping of
    Commission documents,[^48] provides details of any changes that he
    has made to the facilities,[^49] and specifies the names and
    locations of the thirty-one schools that were served by Stations
    WMH477 and WMI306 between January 1, 2001 and November 6, 2001.[^50]
    In addition, Mr. Golden explains that, between January 1, 2001 and
    November 6, 2001, \"each of the channels assigned to \[Stations\]
    WMH477 and WMI306 broadcast the off air signal from the local
    television station.\"[^51] Mr. Golden also attaches a copy of the
    lease agreement that became effective between Mr. Golden and
    Clearwire on November 6, 2001.[^52]

# DISCUSSION

8.  Under the Commission's rules pertaining to MDS, licensees must file
    their renewal applications between thirty and sixty days prior to
    the license expiration date.[^53] If a licensee fails to file a
    timely renewal application, the licensee automatically forfeits the
    MDS station license as of the expiration date.[^54] A licensee may
    file a petition for reinstatement of a forfeited license within
    thirty days of the license expiration date.[^55] A timely filed
    petition for reinstatement must adequately explain the failure to
    file the renewal application on time, and specify the procedures the
    licensee has established to ensure timely filings in the
    future.[^56] Section 21.44(b) of the Commission's Rules limits
    consideration of reinstatement petitions to those that are timely
    filed within thirty days of the expiration date of the license.[^57]

9.  Mr. Golden's licenses for Stations WMH477 and WMI306 expired on May
    1, 2001 without further action by the Commission because Mr. Golden
    failed to submit timely renewal applications. In accordance with the
    Commission's Rules, Mr. Golden was required to submit renewal
    applications for the stations between March 1, 2001 and April
    1, 2001. However, Mr. Golden failed to take any action with regard
    to Stations WMH477 and WMI306 prior to their expiration on May
    1, 2001. Thus, the licenses for Stations WMH477 and WMI306
    automatically expired as of the expiration date in accordance with
    Section 21.11(c) of the Commission's Rules.[^58]

10. Section 21.44(b) of the Commission's Rules, however, allows Mr.
    Golden to request reinstatement of the licenses.[^59] Specifically,
    Section 21.44(b) provides that a license forfeited in whole or in
    part under the provisions of paragraph (a)(1) or (a)(2) may be
    reinstated if the Commission, in its discretion, determines that
    reinstatement would best serve the public interest, convenience and
    necessity. Petitions for reinstatement filed pursuant to Section
    21.44(b) will be considered only if the petition: (1) is filed
    within thirty days of the expiration date; (2) explains the failure
    to timely file such notification or application as would have
    prevented automatic forfeiture; and (3) sets forth with specificity
    the procedures which have been established to insure timely filings
    in the future.[^60] In this case, we conclude that the licenses for
    Stations WMH477 and WMI306 should be reinstated because Mr. Golden
    has met each of the requirements for reinstatement.

11. With respect to the first requirement, Mr. Golden timely sought
    reinstatement of the licenses for Stations WMH477 and WMI306 on May
    30, 2001. As the licenses expired on May 1, 2001, the reinstatement
    requests were filed within the permissible thirty day window for
    such requests. Second, Mr. Golden has also explained his failure to
    file timely applications to renew his licenses for Stations WMH477
    and WMI306. We do not condone Mr. Golden for his neglect of the
    filing deadlines and remind Mr. Golden of his obligation to comply
    with all Commission filing deadlines.[^61] Section 21.44, however,
    does not preclude reinstatement in cases where a deadline is
    inadvertently missed, and reinstatement has been granted in cases
    where a licensee missed a deadline because of inadvertence.[^62] We
    therefore conclude that Mr. Golden has met the second prong of the
    rule. Third, we find that Mr. Golden has set forth specific
    procedures designed to ensure that he makes timely filings in the
    future. We believe that Mr. Golden's decision to enter all
    Commission filing deadlines into his personal calendar in both
    electronic and written form, retain and communicate with outside
    counsel regarding filing deadlines, and maintain duplicate records
    at his own office and at the office of his counsel are reasonable
    steps to ensure timely filings in the future.

12. We also find that it is in the public interest to reinstate Mr.
    Golden's licenses for Stations WMH477 and WMI306. In so doing, we
    find that the objections raised by Nucentrix are insufficient to
    justify denying Mr. Golden's requests for reinstatement.[^63]
    According to Nucentrix, "Mr. Golden cannot demonstrate that the
    public interest would be served by reinstatement of his license"
    because he "has discontinued operation of his stations at this
    time."[^64] However, pursuant to Section 21.30 of the Commission's
    Rules, a petition to deny must contain "specific allegations of fact
    . . . , which shall be supported by affidavit of . . . persons with
    personal knowledge thereof , and which shall be sufficient to
    demonstrate . . . that a grant of, or other Commission action
    regarding, the application would be *prima facie inconsistent with
    the public interest*. . . ."[^65] We find that Nucentrix has failed
    to do so in this instance.

13. With respect to Nucentrix's contention that Mr. Golden is not
    currently a lessee on the only tower at the site,[^66] we find that
    Mr. Golden has submitted adequate documentation to demonstrate that
    Nucentrix is incorrect. Nucentrix relies on an affidavit submitted
    by Mr. Bullis, Vice-President, Spectrum Resources for Nucentrix
    Broadband Networks, Inc., whose personal knowledge in this matter
    was derived from a telephone call placed to staff at American Tower
    Corporation. Mr. Bullis' hearsay affidavit does not comply with the
    "personal knowledge" requirement of Section 309(d)(1) of the
    Act.[^67] Moreover, Mr. Golden attached two affidavits by staff of
    Kinder Morgan,[^68] which according to Mr. Golden, is the former
    owner and current lessee of the tower site.[^69] The affidavits by
    Mr. Phillips and Mr. Goodman, who both have personal knowledge in
    this matter, specifically state that Mr. Golden has maintained and
    operated facilities and equipment at the tower site throughout the
    period in question.[^70] We therefore find that Nucentrix failed to
    demonstrate that Mr. Golden is not leasing or occupying space at the
    tower site.

14. We further find that Nucentrix fails to demonstrate that Stations
    WMH477 and WMI306 were silent or rendered nonoperational for the
    period of time necessary to demonstrate automatic cancellation of
    the licenses or to justify denial of the instant reinstatement
    application.[^71] With its petition to deny, Nucentrix submitted an
    affidavit by Mr. Willis, an RF Field Engineer, to the effect that on
    July 19, 2001, at 4:00 p.m., Mr. Willis used frequency monitoring
    equipment to listen to each of the channels assigned to Mr. Golden
    and found no signals, transmission, or activity.[^72] However,
    Nucentrix's submission is insufficient to demonstrate that Mr.
    Golden voluntarily removed or altered the facilities, so as to
    render Stations WMH477 and WMI306 nonoperational for a period of
    thirty days or more.[^73] In other services, the Commission has
    noted that sporadic monitoring of a frequency is insufficient to
    establish that a station has permanently discontinued
    operation.[^74] We believe the same logic applies in this service.
    Moreover, Mr. Golden has specifically stated that the facilities,
    including the antenna, remain located and operated at the same site
    in accordance with the Commission's Rules.[^75] Mr. Golden has
    submitted affidavits by Mr. Phillips and Mr. Goodman to support his
    assertion that no equipment has been removed from the site and that
    the equipment at the site remains operational.[^76] We therefore
    find that, after careful development and consideration of the record
    in this proceeding, Nucentrix failed to demonstrate that our action
    in granting Mr. Golden's reinstatement application would be *prima
    facie* inconsistent with the public interest.

15. We dismiss Golden's petition to deny against the contingent
    Nucentrix applications as moot. On July 29, 2004, the Commission
    released the *MDS/ITFS R&O & FNPRM* which fundamentally restructured
    the band to provide MDS and ITFS licensees with greater flexibility,
    and took numerous steps to promote competition, innovation, and
    investment in wireless broadband services and educational
    services.[^77]  The Commission directed the Wireless
    Telecommunications Bureau to dismiss all pending applications to
    modify MDS or ITFS stations (including booster and hub stations),
    except for modification applications that could change an
    applicant's PSA, or applications for facilities that would have to
    be separately applied for under the rules adopted in the *MDS/ITFS
    R&O & FNPRM*.[^78]  Pursuant to that directive, the contingent
    Nucentrix applications were dismissed on September 20, 2004.[^79]
    Accordingly, Golden's petition to deny is moot.

# conclusion AND ORDERING CLAUSES

16. For the reasons stated above, we conclude that Mr. Golden has
    justified reinstatement of his licenses for Stations WMH477 and
    WMI306. In so doing, we deny the petition to deny filed by Nucentrix
    because it fails to demonstrate that the reinstatement of Mr.
    Golden's licenses for Stations WMH477 and WMI306 would be prima
    facie inconsistent with the public interest. We therefore reinstate
    the licenses for Stations WMH477 and WMI306 and direct processing of
    the pending renewal applications for those stations. Finally, we
    dismiss as moot Golden's petition to deny the contingent Nucentrix
    applications because those applications were recently dismissed as
    moot.

17. Accordingly, **IT IS ORDERED** that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 21.44(b) of the Commission's Rules, 47 C.F.R. § 21.44(b),
    that the "Application for Reinstatement and Renewal of MDS Licenses"
    filed by Gary Golden on May 30, 2001 **IS GRANTED**, and the
    licenses for MDS Stations WMH477 and WMI306, Longview, Texas **ARE
    REINSTATED.**

18. **IT IS FURTHER ORDERED** that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. §154(i), and
    Section 21.30 of the Commission's Rules, 47 C.F.R. § 21.30, the
    Petition to Deny filed by Nucentrix Spectrum Resources, Inc. on
    August 2, 2001 **IS DENIED.**

19. **IT IS FURTHER ORDERED** that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), that the
    licensing staff of the Broadband Division **SHALL PROCESS** File
    Nos. BRMD-20010530AAA and BRMD-20010530AAB in accordance with this
    *Memorandum Opinion and Order* and the Commission's Rules.

20. **IT IS FURTHER ORDERED** that, pursuant to Sections 4(i) and 309 of
    the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 309,
    and Section 21.30 of the Commission's Rules, 47 C.F.R. § 21.30, that
    the Petition to Deny filed by Gary Golden on September 7, 2001 **IS
    DISMISSED AS MOOT**.

21. 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
>
> John J. Schauble
>
> Deputy Chief, Broadband Division

Wireless Telecommunications Bureau

[^1]: Application for Reinstatement and Renewal of MDS Licenses (May 30,
    2001) (Application).

[^2]: On July 29, 2004, the Commission released a *Report and Order and
    Further Notice of Proposed Rulemaking *that transforms the rules
    governing 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) (*MDS/ITFS R&O &
    FNPRM*). To better reflect the forward-looking vision for
    these services, the Commission renamed MDS the Broadband Radio
    Service and ITFS the Educational Broadband Service.  Once the new
    rules become effective, we will no longer refer to these services as
    MDS and ITFS.

[^3]: File No. BRMD-20010530AAA (May 30, 2001) (E Group Channels); File
    No. BRMD-20010530AAB (May 30, 2001) (F Group Channels)
    (collectively, the Golden Applications).

[^4]: Petition to Deny (Aug. 2, 2001) (Nucentrix PTD).

[^5]: FCC File No. BPMD-20010802AAA (Aug. 2, 2001) (F Group Channels);
    FCC File No. BPMD-20010802AAB (Aug. 2, 2001) (E Group Channels)
    (collectively, the Nucentrix Applications).

[^6]: Petition to Deny (Sept. 7, 2001) (Golden PTD).

[^7]: *See* FCC File No. BALMD-9651153 (filed June 24, 1996; granted
    Nov. 1, 1996); FCC File No. BALMD-9651154 (filed Jun. 24, 1996;
    granted Nov. 1, 1996). The consummation date for the assignments was
    December 16, 1996.

[^8]: 47 C.F.R. § 21.44(b) provides for the reinstatement of an MDS
    license if (1) the petition is filed within 30 days of the
    expiration of the license; (2) the petition explains the failure to
    timely renew the license; and (3) the petition sets-forth the
    specific procedures established to insure timely filings in the
    future.

[^9]: *See* Application at 1. 47 C.F.R. § 24.11(c) requires an MDS
    licensee to renew its license between thirty and sixty days prior to
    expiration.

[^10]: Application at 1-2.

[^11]: Certification of Gary Golden (dated May 29, 1001) (Golden
    Certification). Therein, Mr. Golden also notes that he has provided
    his counsel with his current address to permit counsel to provide
    Mr. Golden with additional reminders. *Id.*

[^12]: Application at 2 (*citing* Line of Sight, Inc., *Order on
    Reconsideration,* 8 FCC Rcd 3145 (CCB DFD 1993) (*Line of Site*);
    Superior Broadcasting Corp., *Memorandum Opinion and Order,* 7 FCC
    Rcd 7543 (CCB DRB 1993) (*Superior*)).

[^13]: Application at 2-3.

[^14]: Nucentrix holds the MDS BTA authorization that includes Longview,
    Texas. Nucentrix states that it therefore has the exclusive right to
    file a long-form application to operate wireless cable television
    systems in those portions of the Longview-Marshall, Texas BTA where
    the service area of a forfeited incumbent has been merged with the
    BTA pursuant to 47 C.F.R. 21.392(c). *See* Nucentrix PTD. As noted
    above, on August 2, 2001, Nucentrix also filed applications seeking
    authority to construct and operate new MDS stations on the E and F
    Channel Groups at Marshall, Texas. Nucentrix conceded in filing the
    applications that "\[t\]he Commission's decision in the ongoing
    proceeding on reinstatement of \[Mr. Golden's\] licenses will
    determine whether . . . \[its own\] Applications can be granted."
    Nucentrix, Opposition to Petition to Deny (filed Dec. 17, 2001).

[^15]: *Id.* at 2 (citing 47 C.F.R. § 21.44(b)).

[^16]: *Id.* at 2-3.

[^17]: *Id.* at 3.

[^18]: *Id.* at 3. A declaration by Mr. Willis is attached to the PTD.
    *See* *id.*, Exhibit A ("Willis Declaration").

[^19]: *Id.* at 3. To support its assertion, Nucentrix attached a
    declaration signed by Mr. Brandon J. Bullis, Vice-President,
    Spectrum Resources for Nucentrix Broadband Networks, Inc. *See id.*,
    Exhibit B ("Bullis Declaration").

[^20]: Opposition to Petition to Deny (filed Aug. 12, 2001)
    ("Opposition").

[^21]: *Id.* at 1. In a declaration attached to the Opposition, Mr.
    Golden states that "\[a\]fter acquiring the Stations, I immediately
    pursued the installation and upgrade of the transmission facilities
    located at North Latitude 32 33' 45" and West Latitude 094 28' 41"
    in Marshall, Texas (the 'Site'), including the replacement of the
    transmitter located at the transmitter building at the Site, and
    modifications to the antenna located at the Site, both of which were
    owned at the time by Kinder Morgan." *Id.*, Exhibit C (Declaration
    of Mr. Gary Golden). Mr Golden further explains that, since that
    time, Kinder Morgan leases the space from the current owner,
    American Tower. *See* Opposition at 5.

[^22]: *See id*., Exhibit A (Declaration of Mr. Herb Phillips) (Phillips
    Declaration). Mr. Phillips, a Telecommunications Technician for
    Kinder Morgan, Inc., states that he served as the Tower Site Manager
    for Kinder Morgan, Inc., at the site where the stations are located.
    Mr. Phillips declares that, for the three years preceding August 13,
    2001, he has observed that (i) transmission equipment owned by Mr.
    Golden has \[been\] located within the building on a continuous
    basis; (2) the transmission equipment has continuously received
    power; (iii) the transmission equipment . . . has appeared to be
    operational, e.g., the display is functioning; and (iv) there is an
    antenna located on the tower which appears to be connected to the
    transmission equipment." *Id.*

[^23]: *See* Opposition, Exhibit B (Declaration of Mr. Steven Goodman)
    (Goodman Declaration). Mr. Goodman, Operations Supervisor for Kinder
    Morgan, L.P., states that he served as the Operational Supervisor
    for Natural Gas Pipeline Company of America, a subsidiary of Kinder
    Morgan, L.P., Inc., since 1993, and as supervisor at the site from
    1993 to 1998. *Id.* Mr. Goodman declares that, on August 8, 2001, he
    toured one of the three transmitter buildings located at the site
    and observed that "(i) transmission equipment owned by Mr. Golden
    was located within the building; (2) the transmission equipment was
    receiving power; and (iii) there is an antenna located on the tower
    which appears to be connected to the transmission equipment." *Id.*

[^24]: Mr. Golden declares that, on August 8, 2001, he toured the
    transmitter building located at the site and observed that "(i)
    transmission equipment for the Stations was still within the same
    transmitter building; (2) the transmission equipment was still
    receiving power; (iii) the display on the transmitter indicated that
    all systems were operating; (iv) there was no apparent damage to the
    transmitter; (v) the antenna for the Stations is still located on
    the same tower, at the same height; and (vi) the antenna appears to
    be connected to the transmission equipment with no apparent defects
    to the transmission line." Declaration of Mr. Golden at 1.

[^25]: *Id.* at 3.

[^26]: *Id.* For example, Mr. Golden notes that the Willis Declaration
    "provides no information as to the duration of the field
    measurements or whether the measurements were repeated at different
    times. No information is provided as to the specific methods used to
    make the field measurements, nor does the Declaration contain the
    actual results from the field examination. . . ." Opposition at 4.

[^27]: For example, the Opposition explains that "it would be completely
    permissible . . . for \[Mr.\] Golden to specialize in the provision
    of National Football League programming, or distant learning for an
    educational institution." Opposition at 5. According to the
    Opposition, Stations WMH477 and WMI306 remain in compliance with the
    Commission's Rules "\[s\]o long as the Stations are not silent for
    more than a year, \[notwithstanding\] the fact that the Stations
    were not transmitting on July 19, 2001, e.g., prior to the football
    season and/or during summer break." *Id.*

[^28]: *Id.* at 8.

[^29]: Reply to Opposition to Petition to Deny (Aug. 22, 2001) (Reply).

[^30]: *Id.* at 3. In fact, Nucentrix points-out that none of the
    affiants "*even assert* that the Stations are actually operating."
    *Id.* Moreover, Nucentrix questions whether any of the affiants even
    have the requisite expertise to state whether the equipment is
    correctly installed at the appropriate site. *Id.* at 2 (emphasis in
    original).

[^31]: *Id.* at 2-4.

[^32]: *Id.* at 4 (*quoting* 47 C.F.R. § 21.911(a)(3)(v)). Nucentrix
    notes that annual reports for the stations fails to list any such
    interruption. Nucentrix further notes that the public file for
    Station WMI306 does not contain annual reports for the years of 1998
    or 2000. *Id.* (further noting that the public file for Station
    WMH477 only contains an annual report for the year of 1996).

[^33]: *Id.* at 5-7. A declaration by Mr. Willis is attached to the
    Reply. *See* *id.*, Exhibit A (Willis Reply Declaration).

[^34]: Reply at 6.

[^35]: *Id.* at 5. Specifically, Nucentrix notes that "while the
    Applicant's license specifies a nine foot Andrew 62351 transmitting
    antenna (now available as Model HMD24VC), no such antenna is present
    on the tower in question." *Id.* Mr. Willis took and attached photos
    of the antenna to his declaration. *See* Willis Reply Declaration,
    Exhibit 2.

[^36]: Letter from Charles E. Dziedzic, Chief, Assistant Chief, Video
    Services Division, Mass Media Bureau, FCC to Mr. Gary Golden (Dec.
    7, 2001) (First Staff Letter).

[^37]: Letter from Gary Golden to Magalie Roman Salas, Secretary, FCC
    (Jan. 7, 2001) (First Golden Letter). On January 22, 2002, Nucentrix
    filed Comments in Reply to Applicant's Response to Letter of
    Inquiry. Comments in Reply to Applicant's Response to Letter of
    Inquiry (Jan. 22, 2002) (Nucentrix Comments). Nucentrix therein
    states that, on four additional visits to the site location for
    Stations WMH477 and WMI306, it found no signal being transmitted.
    *Id.* at 3. Specifically, Mr. Willis electronically monitored the
    site on December 17, 2001, December 21, 2001, January 4, 2002, and
    January 10, 2002. *See id.*

[^38]: First Golden Letter at 1.

[^39]: *Id.; see also id.* at 2 (affirmatively responding that the
    facilities were constructed and located in accordance with the terms
    of the licenses, including authorized antenna model located at the
    proper site).

[^40]: *Id.* at 2. Specifically, Mr. Golden had antennas installed at
    individual schools "to enable the reception of off-air signals being
    rebroadcast by the Stations. This arrangement permitted the Stations
    to be operational in accordance with the Commission's rules. . . ."
    *Id.* Mr. Golden notes that one receive site location was
    subsequently removed. *See id.*

[^41]: *Id.* at 3; *cf.* 47 CFR § 21.44(a)(3). Mr. Golden insists that
    "\[t\]he Opposition did not state the Stations were not transmitting
    on July 19, 2001. . . . The Opposition was merely making the point
    that *if* the Stations re-transmitted broadcast NFL football
    programming in the fall, for example, a "snapshot" test on July 19,
    2001 would not accurately assess whether the Stations were in
    compliance with the Commission's rules." First Golden Letter at 3.

[^42]: *Id*.; *cf.* 47 CFR § 21.303(d). As evidence of confirmation of
    this statement, Mr. Golden notes that he periodically reviewed the
    stations and that he received no complaints from subscribers. *See*
    First Golden Letter at 3.

[^43]: 47 CFR § 21.911.

[^44]: *See* First Golden Letter at 4. Mr. Golden explains that he was
    unable to locate annual reports filed for the year 1998. *See id.*
    at 4. In addition, Mr. Golden argues that he did not submit annual
    reports for the year 2000 because of the pending status of his
    applications. *See id.* at 4. However, Mr. Golden filed the 2000
    annual reports when he filed the First Golden Letter. All of the
    submitted annual reports for both Stations WMH477 and WMI306 report
    a total of 8760 hours (2190 hours per channel) of transmission
    service. Mr. Golden categorized all 8760 hours as entertainment.

[^45]: Mr. Golden reported a total of 35,040 hours (8760 hours per
    channel) of transmission service for both Station WMH477 and WMI306
    for the year 2002.

[^46]: Letter from John J. Schauble, Chief, Policy and Rules Branch,
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau. FCC, to Mr. Gary Golden (dated Jun. 12,
    2003) (Second Staff Letter).

[^47]: Letter from Mr. Gary Golden to Brian Michael Wondrack, Esq.,
    Attorney-Advisor, Policy and Rules Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau, FCC (filed
    Jul. 14, 2003) (Second Golden Letter).

[^48]: *Id.* at 1. The procedures are discussed more fully below.

[^49]: *Id.*

[^50]: *Id.*, Attachment B.

[^51]: *Id.* at 2.

[^52]: *Id.,* Attachment D.

[^53]: *See* 47 C.F.R. § 21.11(c).

[^54]: *See* 47 C.F.R. § 21.44; *see also* Burlington Cablevision, Inc.,
    *Order on Reconsideration*, 13 FCC Rcd 772 (VSD MMB 1998)
    (*Burlington*).

[^55]: *See* 47 C.F.R. § 21.44(b)(1)-(3); *see also Burlington*, 13 FCC
    Rcd at 775 ¶ 7.

[^56]: *See* 47 C.F.R. § 21.44(b)(1)-(3).

[^57]: *See* 47 C.F.R. § 21.44(b)(1).

[^58]: *See* 47 C.F.R. § 21.11(c); *see also Burlington*, 13 FCC Rcd at
    775 ¶7.

[^59]: 47 C.F.R. § 21.44(b).

[^60]: 47 C.F.R. §21.44(b)(1)-(3).

[^61]: In this respect, we note that, according to Commission\'s
    records, no annual reports were filed for Stations WMH477 and WMI306
    for the year 1998. Mr. Golden was also unable to locate copies of
    the 1998 annual reports. In addition, Mr. Golden untimely filed
    annual reports for Stations WMH477 and WMI306 for the year of 2000
    on January 7, 2002 \-- more than 10 months beyond the required
    filing date of March 1, 2001. *Cf.* 47 C.F.R. § 21.911 (requiring
    each MDS licensee to file an annual report with the Commission no
    later than March 1 of each year for the preceding calendar year and
    to retain a copy of each year\'s report in the principal office the
    licensee).

[^62]: *See, e.g., Line of Site*, 8 FCC Rcd at 3145 ¶ 4; Comm Speed
    Huntington, LLC, *Memorandum Opinion and Order,* 19 FCC Rcd 6393
    (WTB BD 2004) (*Comm Speed*).

[^63]: *See* 47 C.F.R. § 21.30.

[^64]: Nucentrix PTD at 3.

[^65]: 47 C.F.R. § 21.30(a)(3) (emphasis added).

[^66]: Nucentrix PTD at 3.

[^67]: *See* Manahawkin Communications Corp., *Memorandum Opinion and
    Order*, 17 FCC Rcd 342, 356 ¶ 23 (2001).

[^68]: *See* Phillips Declaration; Goodman Declaration.

[^69]: *See* Opposition at 5-6.

[^70]: *See* Phillips Declaration; Goodman Declaration.

[^71]: As noted above, Nucentrix contends that reinstatement would not
    be in the public interest because Mr. Golden has discontinued
    operation of Stations WMH477 and WMI306.

[^72]: *See* Willis Declaration. Nucentrix submitted additional
    affidavits by Mr. Willis stating that on other, specific dates and
    times, Mr. Willis confirmed that Stations WMH477 and WMI306 were not
    transmitting signals. *See* Reply, Exhibit A (Willis Reply
    Declaration); Nucentrix Spectrum Resources, Inc., Comments in Reply
    to Applicant's Response to Letter of Inquiry (filed Jan. 22, 2002),
    Exhibit A (Willis Comments Declaration). In addition, although not
    raised in the petition to deny, Nucentrix alleges in the Reply that
    the antenna installed at the site does not conform to that
    authorized for use by Stations WMH477 and WMI306. *See* Reply at 5;
    Willis Reply Declaration, Exhibit 2.

[^73]: *See* 47 C.F.R. § 21.44(a)(3). Similarly, the record in this
    proceeding fails to support cancellation or deletion of the
    frequencies assigned to Stations WMH477 and WMI306 pursuant to 47
    C.F.R. § 303(d). Section 21.303(d) allows a frequency authorization
    to "be cancelled or deleted from a license for failure to render
    service as authorized during a consecutive period of twelve months
    at any time after completion of construction or if removal of
    equipment or facilities has rendered the station not operational."
    Amendment of Part 21 of the Commission's Rules for the Domestic
    Public Fixed Radio Services, CC Docket No. 93-2, *Notice of Proposed
    Rulemaking*, 8 FCC Rcd 1112, 1114 ¶ 16 (1993). Even if we were to,
    *arguendo,* accept Nucentrix's sporadic frequency tests, which were
    conducted on seven dates between July 19, 2001 and January 10, 2002,
    as evidence that Stations WMH477 and WMI306 were nonoperational on
    the dates in question, the necessary duration of time to trigger our
    authority to cancel or delete the frequencies pursuant to 47 C.F.R.
    § 303(d) would not have elapsed.

[^74]: *See* Brookfield Development, Inc., *Memorandum Opinion and
    Order*, 19 FCC Rcd 14385, 14391 ¶ 18 (2004) Cellular Design
    Corporation, *Memorandum Opinion and Order*, 14 FCC Rcd 13059, 13064
    ¶ 12 (1999);

[^75]: *See, e.g.,* First Golden Letter at 1-3.

[^76]: *See* Phillips Declaration; Goodman Declaration.

[^77]: *MDS/ITFS R&O & FNPRM*.

[^78]: *Id.*, 19 FCC Rcd at 14191 ¶ 58. 

[^79]: *See* Wireless Telecommunications Bureau Site-By-Site Action,
    Report No. 1947, *Public Notice* (rel. Sep. 29, 2004) at 8.