**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. 50244-CM-L-94       |
|                                  | *) |                              |
| CARIBBEAN MMDS PARTNERSHIP       | ** | File No. 50870-CM-P-97       |
|                                  |    |                              |
| Motion to Cancel or Declare      | *  | File No. BRMD-20010430AAA    |
| Forfeiture of License of         | *) |                              |
| Multichannel Multipoint          | ** | File Nos. BMDP-19980721ND,   |
| Distribution Service Station     |    | BMDP-19980721NE, and         |
| WNTK992, San German, Puerto Rico | *  | BMDP-19980721NF              |
|                                  | *) |                              |
| Application for Modification of  | ** |                              |
| License of Multichannel          |    |                              |
| Multipoint Distribution Service  | *  |                              |
| Station WNTK992, San German,     | *) |                              |
| Puerto Rico                      | ** |                              |
|                                  |    |                              |
| Application for Renewal of       | *  |                              |
| License of Multichannel          | *) |                              |
| Multipoint Distribution Service  | ** |                              |
| Station WNTK992, San German,     |    |                              |
| Puerto Rico                      | *  |                              |
|                                  | *) |                              |
| GRAND WIRELESS COMPANY, INC.     | ** |                              |
|                                  |    |                              |
| Petition to Dismiss or Deny      | *  |                              |
| Applications for a New           | *) |                              |
| Multichannel Multipoint          | ** |                              |
| Distribution Service Station on  |    |                              |
| the H Channels at San German,    | *  |                              |
| Puerto Rico                      | *) |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 12, 2003 Released: November 13, 2003**

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

# INTRODUCTION

1.  In this *Memorandum Opinion and Order,* we address Grand Wireless
    Company's (GWC's) Motion to Cancel or Declare Forfeiture of
    License[^1] as well as its Petition to Deny,[^2] both regarding
    Caribbean MMDS Partnership's (Caribbean's) Multichannel Multipoint
    Distribution Service (MMDS) Station WNTK992, San German, Puerto
    Rico. We also address Caribbean's Petition to Dismiss or Deny[^3]
    directed at GWC's applications for a new MMDS station on the H
    channels at San German, Puerto Rico.[^4] In addition, we address
    applications filed by Caribbean for modification of the facilities
    for Station WNTK992[^5] and for a renewal of the license for the
    latter station.[^6] Finally, we address a request filed by
    Caribbean[^7] for waiver of a Section 21.303(d) of the Commission's
    Rules regarding requirements for discontinuance, reduction or
    impairment of service.[^8] For the reasons stated below, we grant
    GWC's Forfeiture Motions, deny Caribbean's Waiver Request, dismiss
    Caribbean's modification and renewal applications, and dismiss both
    GWC's Petition to Deny and Caribbean's Petition to Dismiss or Deny.

# II. BACKGROUND

2\. On June 22, 1993, the Commission granted a modified conditional
license to Caribbean for MMDS Station WNTK992, San German, Puerto Rico.
According to the terms of the license, Caribbean was required to
complete construction of the station on or before December 22, 1993.[^9]
Caribbean fulfilled this requirement.[^10] Caribbean states that it
leases its channel capacity to Caribbean Wireless Systems, Inc.
(CWSI).[^11] On May 20, 1997, Caribbean reported the following:

> While CWSI is in the process of obtaining a critical mass of channels
> necessary for its system, it would be impractical for Caribbean to
> provide commercial programming on the Station. Thus, Caribbean has
> been operating the Station with various test signals consisting of,
> among other things, recorded video programming and a character
> generator.[^12]

3\. On August 16, 1996, the Commission issued to GWC the Basic Trading
Area (BTA) authorization for Mayaguez, Puerto Rico (BTA489).[^13] On
March 13, 1997, Caribbean filed a notification of involuntary
discontinuance of service for Station WNTK992, indicating that it would
soon discontinue service for approximately thirty days.[^14] GWC filed
the instant Forfeiture Motion on May 5, 1997. On May 20, 1997, the same
date that Caribbean filed its opposition to GWC's motion,[^15] Caribbean
also filed applications to modify its authorization for Station WNTK992
to decrease antenna centerline height.[^16] These applications were
granted on July 1, 1997.[^17] Caribbean filed a further modification
application on August 21, 1997, to return the antenna centerline height
to its previous level.[^18] GWC filed the instant Petition to Deny
against this application for further modification on October 24,
1997.[^19] On July 21, 1998, GWC filed its applications for a new MMDS
station on the H channels at San German, Puerto Rico.[^20] The
applications were placed on public notice on August 19, 1998.[^21]
Caribbean filed its petition to deny these applications on September 17,
1998.[^22]

4\. On October 5, 1998, Caribbean informed the Commission that,
beginning on September 21, 1998 and continuing thereafter, Station
WNTK992 had involuntarily discontinued service because of damage to its
transmitting tower caused by Hurricane Georges.[^23] Caribbean's annual
reports for 1998 and 1999 reflect that Station WNTK992 was not in
service starting on September 21, 1998 through and including December
31, 1999.[^24] On October 15, 1999, Caribbean filed a request for a
waiver of Section 21.303(d) of the Commission's Rules[^25] to allow
Station WNTK992 to remain off the air for an additional six months.[^26]

# III. DISCUSSION

5\. GWC maintains that since Station WNTK992 was unconstructed and
inoperable for more than thirty days, Caribbean's license for the
station was automatically forfeited pursuant to Section 21.44(a)(3) of
the Commission's Rules.[^27] GWC describes both engineering tests and
site visits to where the transmit site of Station WNTK992 should be
located,[^28] which, GWC maintains, show no evidence of construction at
the station's authorized site.[^29] Moreover, GWC notes that Caribbean's
annual reports for the years 1995 and 1996 show that Caribbean serves
only a single subscriber, providing "other services" than entertainment,
education, training, public service, or data, casting serious doubt upon
whether the Station was in fact in operation.[^30] GWC also maintains
that that because Caribbean did not provide service within the twelve
month period after Caribbean indicated that its station was constructed,
Caribbean's license was required to be submitted for cancellation
pursuant to Section 21.303(d) of the Commission's Rules.[^31]

6\. Caribbean claims that GWC's assertions cannot be relied upon because
they are unsupported by affidavits.[^32] Caribbean further indicates
that the Commission may only revoke a station's license through
procedures set forth in Section 312 of the Communications Act, as
amended.[^33] Caribbean also argues that the exhibit photographs that
GWC filed in support of its claim do not portray Caribbean's facilities
accurately.[^34] Moreover, Caribbean asserts that it has complied with
the Commission's Rules in good faith, and that while Caribbean is in the
process of amassing the channels necessary for its wireless cable
system, Station WNTK992 has been on the air since construction, save for
reported periods.[^35]

7\. In reply to Caribbean, GWC asserts that affidavits were not
required. As its petition was properly executed and filed, GWC
maintains, it is worthy of Commission consideration.[^36] GWC further
maintains that a revocation proceeding was not required under the
conditions of the instant case given that the Commission's Rules and
case law expressly allow cancellation without such a hearing.[^37] GWC
notes that Caribbean acknowledges that Station WNTK992 is not operating,
and contends that Caribbean's provision merely of "other services"
consisting of test signals to one subscriber, the provision of which
Caribbean's filings and annual reports acknowledge, does not constitute
operation of a station sufficient to avoid cancellation of its
license.[^38]

8\. In support of its petition to deny Caribbean's application for a
license modification,[^39] GWC indicates that grant of the application
could prejudice the Commission's consideration of GWC's Forfeiture
Motion directed at Station WNTK992.[^40] In opposition, Caribbean
maintains that GWC lacks standing to file the petition, and indicates
that a station license may only be revoked in accordance with revocation
procedures pursuant to Section 312 of the Communications Act, as
amended.[^41] In reply, GWC notes that the Commission encourages the
holders of BTA authorizations to find and document instances in which
incumbent licensee rights should be revoked or terminated as a result of
a licensee's conduct or lack of compliance with Commission rules and
regulations.[^42] GWC states that it has standing to do so in this case
in its capacity as the Mayaguez, Puerto Rico BTA authorization holder,
and indicates that revocation procedures are unnecessary if a license is
canceled automatically or otherwise required to be "turn\[ed\] in" to
the Commission.[^43]

9\. In its petition to deny GWC's station applications,[^44] Caribbean
argues that these applications are defective because they do not include
interference studies with respect to Caribbean's Station WNTK992.[^45]
Caribbean further contends that because this failure appears to be
deliberate on GWC's part, the Commission should impose sanctions on
GWC.[^46] In opposition to Caribbean, GWC argues that because
Caribbean's license for Station WNTK992 had been forfeited
automatically, as demonstrated by GWC, interference to that license need
not have been considered.[^47] In reply, Caribbean argues that absent
actual forfeiture of Station WNTK992's license, the station must be
protected from interference and proper studies filed with the
Commission.[^48]

10\. Based on the record before us, we conclude that we need not address
whether Caribbean's license forfeited automatically pursuant to Section
21.44(a)(3) of the Commission's Rules,[^49] as GWC alleges.[^50] Rather,
we find that this issue need not be addressed since the record clearly
establishes that Caribbean permanently discontinued operation of Station
WNTK992.[^51] As a result, pursuant to Section 21.303(d) of the
Commission's Rules, the circumstances presented require a determination
of cancellation of the license for Station WNTK992.[^52] Section
21.303(d) states, in pertinent part:

> If any radio frequency should not be used to render any service as
> authorized during a consecutive period of twelve months at any time
> after construction is completed . . . the licensee shall, within
> thirty days of the end of such period of nonuse: (1) Submit for
> cancellation the station license . . . (2) File an application for
> modification of the license (or licenses) to delete the unused
> frequency (or frequencies), or (3) Request waiver of this rule and
> demonstrate either that the frequency will be used . . . within six
> months of the end of the initial period of nonuse, or that the
> frequency will be converted to allow rendition of other authorized
> public services within one year of the end of the initial period of
> nonuse . . . .[^53]

Caribbean admits that Station WNTK992 has been used only to transmit
"various test signals."[^54] Annual reports of Caribbean,[^55]
admissions in this proceeding,[^56] and other filings[^57] establish
that Caribbean has not used Station WNTK992 to provide "service" since
the station was constructed. Section 21.303(d) was designed to ensure
that "a carrier who has a license, but is unable to use it . . .
relinquish\[es\] the frequencies to others who may be able to use the
spectrum."[^58] This rule requires a licensee to provide service.[^59]
Therefore, we find that, under the circumstances of this case,[^60]
pursuant to Section 21.303(d) of the Commission's Rules,[^61] the
license for Station WNTK992 is cancelled with an effective date of
December 22, 1994, one year after Caribbean indicates that station
construction was completed.[^62] Because Section 21.303(d) specifically
discusses the circumstances resulting in cancellation and does not
enunciate a revocation hearing requirement, contrary to Caribbean's
argument, we find that no such hearing is required in this context.[^63]

11\. Further, with December 24, 1994 as the operative date for
cancellation, we find that Caribbean's request for a waiver of Section
21.303(d) with respect to its admitted non-operation of Station WNTK992
in 1998 and 1999, is moot, having been filed after this date. As a
result, we dismiss such request on such basis.

  -----------------------------------------------------------------------

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12\. In light of our finding that the license for Station WNTK992
cancelled, we will dismiss as moot Caribbean's application to modify
that station,[^64] GWC's petition to deny that application,[^65] and
Caribbean's application to renew that license.[^66] With respect to
Caribbean's petition to deny GWC's applications,[^67] we dismiss
Caribbean's petition for lack of standing. As Caribbean's license for
Station WNTK992 has cancelled, Caribbean can suffer no potential harm or
injury from a grant of GWC's applications. Within this context,
Caribbean cannot be said to be a party-in-interest and, therefore, lacks
standing. [^68]

# CONCLUSION AND ORDERING CLAUSES

13\. For the reasons stated above, we conclude that Caribbean's Station
WNTK992 license cancelled due to Caribbean's failure to use that license
to provide service. In light of our conclusion, we will dismiss
Caribbean's application to modify the license for Station WNTK992,[^69]
as well as the petition to deny that application filed by GWC.[^70] We
also will dismiss Caribbean's application for renewal of Station
WNTK992,[^71] and we will dismiss Caribbean's petition to dismiss or
deny that was filed against GWC's applications.[^72]

14\. 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
21.303 of the Commission's Rules, 47 C.F.R. § 21.303, the Motion to
Cancel or Declare Forfeiture of License filed by Grand Wireless Company
on May 5, 1997 IS GRANTED.

15\. 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
21.303 of the Commission's Rules, 47 C.F.R. §§ 21.303, that the license
for Station WNTK992 IS DEEMED CANCELED as of December 24, 1994.

16\. IT IS FURTHER ORDERED that the application for modification of
license filed by Caribbean MMDS Partnership on August 21, 1997 (File No.
50870-CM-P-97), the Petition to Deny filed by Grand Wireless Company on
October 24, 1997, the Petition to Dismiss or Deny filed by Caribbean
MMDS Partnership on September 17, 1998, and the application for renewal
filed by Caribbean MMDS Partnership on April 30, 2001 (File No.
BRMD-20010430AAA) ARE DISMISSED.

17\. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Section
21.32 of the Commission's Rules, 47 C.F.R. § 21.32, that the Division's
Licensing and Technical Analysis Branch SHALL PROCESS Application File
Nos. BMDP-19980721ND, BMDP-19980721NE, and BMDP-19980721NF consistent
with the applicable Commission policies, rules, and regulations.

18\. 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]: Motion to Cancel or Declare Forfeiture of License (filed May 5,
    1997) (Forfeiture Motion).

[^2]: Petition to Deny (filed Oct. 24, 1997).

[^3]: Petition to Dismiss or Deny (filed Sep. 17, 1998).

[^4]: File Nos. BMDP-980721ND, BMDP-980721NE, and BMDP-980721NF (filed
    July 21, 1998).

[^5]: File No. 50870-CM-P-97 (filed Aug. 21, 1997).

[^6]: File No. BRMD-20010430AAA (filed Apr. 30, 2001). *See Public
    Notice*, Report No. 424 (rel. July 3, 2001).

[^7]: Letter from Leo H. Thomasian, Managing Partner, Caribbean MMDS
    Partnership, to Magalie Salas, Secretary, Federal Communications
    Commission (dated Sep. 14, 1999, filed Oct. 15, 1999) (Waiver
    Request). Caribbean indicates that it originally sent the Waiver
    Request on September 14, 1999 to the Washington, D.C. address of the
    Commission prior to its current location, but Caribbean never
    received confirmation that the Commission had received the original
    letter. *Id.*

[^8]: 47 C.F.R. § 21.303(d).

[^9]: *See* Conditional License for Station WNTK992.

[^10]: Caribbean MMDS Partnership Certification of Completion of
    Construction (filed Dec. 27, 1993).

[^11]: Caribbean Opposition to Motion to Cancel or Declare Forfeiture of
    License (filed May 20, 1997) (Caribbean Opposition) at 8.

[^12]: *Id.* at 9.

[^13]: *Public Notice: FCC Announces Grant of MDS Authorizations*,
    Report No. D-871 (rel. Aug. 16, 1996).

[^14]: Notification of Involuntary Discontinuance of Service (filed Mar.
    13, 1997).

[^15]: Caribbean Opposition, *see supra*, note 10.

[^16]: File Nos. 50670-CM-P-97, 50671-CM-P-97, 50672-CM-P-97 (filed May
    20, 1997); *see* Mass Media Bureau Multipoint Distribution Service
    Applications, *Public Notice*, Report No. D-931 (rel. June 4, 1997).

[^17]: *Public Notice*, Report No. D-935-A (rel. July 2, 1997).

[^18]: Caribbean also filed a renewal application for WNTK992 on April
    30, 2001 (File No. 20010430AAA). *See* Mass Media Bureau
    Instructional Television Fixed Service/Multipoint Distribution
    Service Actions, *Public Notice*, Report No. 424 (rel. July 3,
    2001).

[^19]: Petition to Deny (filed Oct. 24, 1997).

[^20]: File Nos. BMDP-980721ND, BMDP-980721NE, and BMDP-980721NF (filed
    July 21, 1998).

[^21]: Mass Media Bureau Multipoint Distribution Service Applications,
    *Public Notice*, Report No.D-1000 (rel. Aug. 19, 1998).

[^22]: Petition to Dismiss or Deny (filed Sept. 17, 1998).

[^23]: Letter from Leo H. Thomasian, Managing Partner, Caribbean MMDS
    Partnership, to Magalie Salas, Secretary, Federal Communications
    Commission (filed Oct. 5, 1998).

[^24]: Section 21.911 Annual Reports for Station WNTK992 for 1998 and
    1999 (filed Mar. 1, 1999 and Apr. 18, 2000).

[^25]: 47 C.F.R. § 21.303(d).

[^26]: Letter from Leo H. Thomasian, Managing Partner, Caribbean MMDS
    Partnership to Magalie Salas, Secretary, Federal Communications
    Commission (dated Sep. 14, 1999, filed Oct. 15, 1999). Caribbean
    indicates that it originally sent this letter to the Commission's
    prior address on Sept. 14, 1999, but it never received confirmation
    of Commission receipt of this letter. *Id.*

[^27]: Motion for Forfeiture at 3. 47 C.F.R. § 21.44(a)(3) states that
    automatic forfeiture of a license will occur without notice to the
    licensee when there is a "voluntary removal or alteration of the
    facilities, so as to render the station not operational for a period
    of 30 days or more."

[^28]: *Id.*

[^29]: *Id.*

[^30]: Motion for Forfeiture at 5-6

[^31]: Motion for Forfeiture at 4. 47 C.F. R. § 21.303(d) requires that
    a licensee submit a station license for cancellation after a period
    of twelve months of discontinued service.

[^32]: Opposition to Motion to Cancel or Declare Forfeiture of License
    (filed May 20, 1997) at 2.

[^33]: *Id.* at 2-3, *citing* 47 U.S.C. § 312.

[^34]: *Id.* at 5-6, Exhibit A.

[^35]: *Id.* at 6-8.

[^36]: Reply to Opposition to Motion to Cancel or Declare Forfeiture of
    License (filed June 2, 1997) at 2-3, citing *Warren Ache*, 9 FCC Rcd
    2646 and its interpretation of 47 C.F.R. § 21.303(d) as allowing
    license cancellation without a revocation hearing.

[^37]: *Id.* at 4-5.

[^38]: *Id.* at 5-7.

[^39]: Petition to Deny (filed Oct. 24. 1997).

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

[^41]: Opposition to Petitions to Deny (filed Nov. 26, 1997) at 2-3.

[^42]: Reply (filed Dec. 9, 1997) at 2, citing *Report and Order* in MM
    Docket No. 94-131 and PP Docket No. 93-253, 10 FCC Rcd 9589, 9612-13
    (1995).

[^43]: Reply (filed Dec. 9, 1997) at 2-3.

[^44]: Petition to Dismiss or Deny (filed Sept. 17, 1998) involves File
    Nos. BMDP-980721ND, BMDP-980721NE, and BMDP-980721NF (filed July 21,
    1998).

[^45]: Petition to Dismiss or Deny (filed Sept. 17, 1998) at 2-3.

[^46]: *Id.* at 3-4.

[^47]: Opposition to Petition to Dismiss or Deny (filed Sept. 30, 1998)
    at 2-3.

[^48]: Reply to Opposition to Petition to Dismiss or Deny (filed Oct.
    10, 1998) at 2-3.

[^49]: 47 C.F.R. § 21.44(a)(3).

[^50]: *See* para. 5, *supra*.

[^51]: *See* Caribbean Opposition at 9; Caribbean MMDS Partnership
    Annual Reports for Calendar Years 1994 through 1999 (filed Mar. 1,
    1995; Mar. 1, 1996; Mar. 12, 1997; Mar. 2, 1998; Mar. 1, 1999; Apr.
    18, 2000).

[^52]: 47 C.F.R. § 21.303(d).

[^53]: *Id.*

[^54]: Caribbean Opposition at 9.

[^55]: Caribbean MMDS Partnership Annual Reports for Calendar Years 1994
    through 1999 (filed Mar. 1, 1995; Mar. 1, 1996; Mar. 12, 1997; Mar.
    2, 1998; Mar. 1, 1999; Apr. 18, 2000).

[^56]: Caribbean Opposition at 8-9.

[^57]: *See, e.g.,* Notification of Involuntary Discontinuance of
    Service (filed Mar. 13, 1997), Notice of Involuntary Temporary
    Discontinuance of Service (filed Oct. 2, 1998). Though Caribbean
    estimated in this latter notice that it would not be providing
    service for approximately two months, Caribbean actually provided no
    service for at least a full year. *See* Caribbean MMDS Partnership
    Annual Report for Calendar Year 1999, *supra*.

[^58]: *See* Revision of Part 21 of the Commission\'s Rules, CC Docket
    No. 86-128, *Report and Order*, 2 FCC Rcd 5713, 5724 ¶ 81 (1987).

[^59]: *See* San Diego MDS Company, *Order on Reconsideration*, DA
    03-3619 (rel. Nov. 13, 2003); *Warren Ache*, 9 FCC Rcd 2464, 2466
    (1993).

[^60]: Here, within thirty days of December 22, 1994, Caribbean filed no
    application for modification of the license or request for waiver of
    47 C.F.R. § 21.303.

[^61]: 47 C.F.R. § 21.303(d).

[^62]: We note that Caribbean failed in its obligation to submit its
    license for cancellation pursuant to 47 C.F.R. § 21.303(d). Any
    alternative reading of the rule that would require the submission of
    the license as a condition precedent to cancellation would be an
    unreasonable reading, as it would frustrate the underlying purpose
    of the rule. The rule was adopted to ensure the efficient use of the
    spectrum by requiring the cancellation of used licenses. *See*
    Revision of Part 21 of the Commission's Rules, *Report and Order,* 2
    FCC Rcd 5713, 5724 ¶ 82 (1987).

[^63]: *See Warren Ache,* 9 FCC Rcd 2464 (1993)*.*

[^64]: *See* File No. 50870-CM-P-97.

[^65]: Petition to Deny (filed Oct. 24, 1997).

[^66]: File No. BRMD-20010430AAA.

[^67]: Petition to Dismiss or Deny (filed Sep. 17, 1998).

[^68]: *See* 47 U.S.C. § 309(d)(1) and 47 C.F.R. § 21.30(a)(3); *see
    also Sierra Club v. Morton,* 405 U. S. 727, 733 (1972); *National
    Broadcasting Co*., 37 FCC 2d 897, 898 (1972); Lawrence N. Brandt and
    Krisar, Inc., *Memorandum Opinion and Order*, 3 FCC Rcd 4082 (CCB
    Dom Fac. Div. 1998) (party-in-interest status is deemed to exist
    when a petitioner demonstrates that the grant of the petitioned
    application will cause the petitioner a direct injury).

[^69]: *See* File No. 50870-CM-P-97.

[^70]: Petition to Deny (filed Oct. 24, 1997).

[^71]: File No. BRMD-20010430AAA.

[^72]: Petition to Dismiss or Deny (filed Sep. 17, 1998).