Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of Applications of | * | File Nos. 20020820AAG,       |
|                                  | * | 20020820AAH, 20020820AAI,    |
| NORTHWEST COMMUNICATIONS         | ) | and 20020820AAJ              |
| COOPERATIVE                      | * |                              |
|                                  | * | File No. 20030129AAD         |
| Certifications of Completion of  |   |                              |
| Construction of Multipoint       | * | File Nos. 20030129AAB,       |
| Distribution Service Stations    | * |                              |
| WMX663 and WMX664, Bowbells,     | ) | 20030129AAC                  |
| North Dakota, and WMX665 and     | * |                              |
| WMX666, Epping, North Dakota     | * |                              |
|                                  |   |                              |
| PACE TELECOMMUNICATIONS          | * |                              |
| CONSORTIUM                       | * |                              |
|                                  | ) |                              |
| Certifications of Completion of  | * |                              |
| Construction of Instructional    | * |                              |
| Television Fixed Service Station |   |                              |
| WLX374, Indian River, Michigan   | * |                              |
|                                  | * |                              |
| CHEBOYGAN-OTSEGO-PRESQUE ISLE    | ) |                              |
| EDUCATIONAL SERVICE CENTER       | * |                              |
|                                  | * |                              |
| Certifications of Completion of  |   |                              |
| Construction of Instructional    | * |                              |
| Television Fixed Service         | * |                              |
| Stations WNC702, Charlevoix,     | ) |                              |
| Michigan and WHR997, Topinabee,  | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPNION AND ORDER**

**Adopted: December 9, 2004 Released: December 10, 2004**

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

# INTRODUCTION

1.  On August 20, 2002, Northwest Communications Cooperative (NCC) filed
    a Petition for Waiver of Sections 21.43 and 21.44 of the
    Commission's Rules and associated late-filed certifications of
    completion of construction.[^1] Similarly, on January 29, 2003, PACE
    Telecommunications Consortium (PACE)[^2] and
    Cheboygan-Otsego-Presque Isle Education Service District
    (COPESD)[^3] filed certifications of completion of construction and
    associated waiver requests. For the reasons discussed below, we
    grant the waiver requests and direct processing of the associated
    certifications.

# BACKGROUND

2.  On November 1, 1994, NCC was granted conditional licenses to operate
    Multipoint Distribution Service (MDS)[^4] stations WMX663 and WMX664
    in Bowbells, North Dakota and WMX665 and WMX666 in Epping, North
    Dakota. NCC was required to construct and file a certification of
    completion of construction within one year from the date of
    authorization.[^5] NCC asserts that it did indeed construct the
    stations, but upon filing applications for renewal of these
    authorizations, it realized that the necessary certifications of
    completion of construction had never been filed due to an
    oversight.[^6] NCC requests a waiver of Sections 21.43 and 21.44 for
    the Commission to accept and process its certifications so that the
    necessary renewal applications can also be processed.[^7]

3.  We have a similar request before us from COPESD, who inadvertently
    neglected to file a construction certification for its Instructional
    Television Fixed Service (ITFS) Station[^8] WNC702 in Charlevoix,
    Michigan although it had timely constructed the station.[^9] COPESD
    asserts that because the station serves approximately 18,000
    students in a geographically isolated, academically under-served
    area and does not lease out any excess capacity, denial of its
    waiver request would be greatly detrimental to the community.[^10]

4.  We also have before us late-filed certification of construction from
    COPESD for ITFS Station WHR997 in Topinabee, Michigan,[^11] and from
    PACE for ITFS Station WLX374 in Indian River, Michigan.[^12] In both
    cases, the Petitioners filed minor modification applications to
    request registration of certain receive sites that were up to 57
    miles away from the main transmit site. This registration was
    necessary in order to receive protection from interference from
    neighboring stations. At the time COPESD and PACE's applications
    were granted in 2001, the referenced receive sites were operational
    pursuant to developmental authority.[^13] Thus, COPESD and Pace
    assert that they did not believe it was necessary to submit
    certification notices.[^14] Both Petitioners have filed the instant
    certifications in order to ensure that the Commission's records are
    complete.

# DISCUSSION

5.  Section 74.34[^15] of the Commission's Rules requires ITFS licensees
    to notify the Commission upon completion of any authorized
    construction. Similarly, Sections 21.43[^16] and 21.44[^17] of the
    Commission's Rules require MDS licensees to notify the Commission
    upon completion of any authorized construction. In NCC's case,
    Section 21.44(a) of the Commission's Rules provides that licenses
    automatically cancel if a timely construction notification is not
    filed.[^18] The Petitioners, who have not filed timely
    Certifications of Construction, seek waivers of these provisions so
    that their late-filed Certifications will be accepted and their
    licenses will remain intact.[^19] For MDS licensees, we may grant
    such a waiver if the purpose of the rule will not be served or would
    be frustrated by its application in the case and that grant of the
    waiver is otherwise in the public interest.[^20] For ITFS licensees,
    "An applicant for waiver faces a high hurdle even at the starting
    gate. 'When an applicant seeks a waiver of a rule, it must plead
    with particularity the facts and circumstances which warrant such
    action."'[^21] We conclude that a waiver is warranted under the
    circumstances presented. Specifically, we conclude that the
    underlying purpose of the subject rules would not be served by
    strict application of the rule to the instant cases, and grant of a
    waiver would be in the public interest.

6.  The purpose of the construction notification is to confirm that
    licensees have met their responsibility, not to cancel the licenses
    for legitimately operating facilities. The Petitioners in the
    instant case met their actual construction obligations in a timely
    manner, but neglected to notify the Commission of the completion of
    such construction. Considering the circumstances, we conclude that
    the best approach is to grant Petitioners the waiver they seek in
    order to allow acceptance of pending late-filed construction
    notifications. The late-filed certifications confirm that licensees
    have met their responsibilities and will assist the Commission to
    achieve a more accurate licensing database. Moreover, we believe
    that canceling Petitioner's licenses for legitimately operating
    facilities that were constructed in accordance with the terms of
    their authorizations would frustrate the purpose of our
    certification requirement.

7.  In the interest of maintaining the integrity and accuracy of the
    licensing database, we have in the past granted requests for waiver
    and accepted late-filed notifications of timely construction if the
    licensee indicates that it met the construction deadline but
    requires a waiver of the rule governing timely filing of such
    notifications. We believe this situation is analogous to the
    situation recently addressed by the Wireless Telecommunications
    Bureau's Mobility, Broadband, and Public Safety and Critical
    Infrastructure Divisions (Divisions) in a joint Order responding to
    requests from the Industrial Telecommunications Association, the law
    firm of Blooston, Mordkofsky, Duffy & Pendergast, and the American
    Mobile Telecommunications Association.[^22] In that case, the
    Petitioners requested that the Commission allow Part 90 private land
    mobile radio (PLMR) licensees that had constructed their licensed
    facilities as required, but failed to file timely construction
    notifications an amnesty period of 180 days during which to file
    their construction notifications without having to file for an
    extension of time or request for waiver of the Commission\'s rules.
    The Petitioners argued that the PLMR licensees had recently been
    transitioned to the Universal Licensing System (ULS), and prior to
    such implementation, such licensees did not have to report their
    construction status on any routine basis.[^23] Thus, they contended
    that the notification requirement was new and unfamiliar, and there
    was confusion about the applicability of the construction
    notification rule.[^24] Noting that the purpose of the rule was not
    to cancel legitimate operations, but rather, to confirm that
    licensees had met their obligations, the Divisions concluded to
    grant a waiver of all pending late-filed notifications rather than
    grant a blanket amnesty for 180 days, as had been requested by the
    Petitioners. The Divisions took this action to assist the Commission
    in maintaining accurate licensing records. In light of this decision
    by the Divisions, we believe that granting the waivers requested by
    NCC, PACE, and COPESD is in the public interest in likewise
    assisting the Commission in maintaining accurate licensing records
    in the MDS and ITFS services. Thus, we conclude that Petitioners
    have shown good cause for a waiver of Sections 21.43, 21.44[^25] and
    74.34 of the Commission\'s Rules, as appropriate, to accept the
    late-filed construction notifications at issue.

8.  We note that in 2003, the Commission undertook a comprehensive
    examination of our rules and policies governing the MDS and ITFS
    services in the 2500-2690 MHz band, in recognition of the spectrum's
    vast potential for broadband offering. On July 29, 2004, the
    Commission released a *Report and Order and Further Notice of
    Proposed Rule Making* which fundamentally restructured the band to
    provide ITFS licensees with greater flexibility, and took numerous
    steps to promote competition, innovation, and investment in wireless
    broadband services and educational services.[^26] Among other
    actions, the *MDS/ITFS R&O & FNPRM* migrates these services to the
    Universal Licensing System (ULS) that governs all WTB services. The
    ULS is helpful because it notifies wireless licensees by mail of
    impending construction deadlines at least ninety days prior to the
    relevant deadline. However, we underscore that once MDS and ITFS
    licensees become part of the ULS system, licensees must be mindful
    that the ULS-generated notification reminder letters are an aid
    provided by the Commission, and that not receiving a reminder letter
    is not a sufficient reason to not file the notification. While we
    agree that relief is warranted here, we emphasize that licensees are
    expected to be aware of, and fulfill, their regulatory obligations.

# CONCLUSION AND ORDERING CLAUSES

9.  NCC, PACE, and COPESD have demonstrated that it would be in the
    public interest to waive the Commission's Rules and consider their
    late-filed certifications of completion of construction.
    Accordingly, we will grant their waiver requests and direct
    processing of their certifications.

10. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    [Sections](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1000547&DocName=47CFRS1.946&FindType=L)
    21.19, 21.43 and 21.44 of the Commission's Rules, 47 C.F.R. § 21.19,
    21.43, 21.44 that the waiver requests filed by Northwest
    Communications Cooperative on August 20, 2002 in connection with
    File Nos. 20020820AAG, 20020820AAH, 20020820AAI, and 20020820AAJ ARE
    GRANTED, and
    [Sections](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1000547&DocName=47CFRS1.946&FindType=L)
    21.19, 21.43 and 21.44 of the Commission's Rules ARE WAIVED with
    respect to those certifications.

11. 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](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1000547&DocName=47CFRS1.946&FindType=L)
    74.34 of the Commission's Rules, 47 C.F.R. § 74.34, that the waiver
    requests filed by PACE Telecommunications Consortium and
    Cheboygan-Otsego-Presque Isle Education Service District on January
    29, 2003 in connection with File Nos. 20030129AAB, 20030129AAC and
    20030129AAD ARE GRANTED, and [Section
    74.34](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1000547&DocName=47CFRS1.946&FindType=L)
    of the Commission's Rules IS WAIVED with respect to those
    certifications.

12. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 21.44 and 74.34 of the Commission's Rules, 47 C.F.R. §§
    21.44, 74.34, that the licensing staff of the Broadband Division
    SHALL PROCESS the captioned applications certifying completion of
    construction in accordance with this *Memorandum Opinion and Order*
    and the Commission's Rules.

13. 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](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1000547&DocName=47CFRS0.331&FindType=L).

> FEDERAL COMMUNICATIONS COMMUNICATION
>
> John J. Schauble
>
> Deputy Chief, Broadband Division
>
> Wireless Telecommunications Bureau

[^1]: Request for Waiver, filed in association with File Nos.
    20020820AAG, 20020820AAH, 20020820AAI, 20020820AAJ (filed Aug. 20,
    2002) (NCC Waiver Request).

[^2]: *See* File No. 20030129AAD (filed Jan. 29, 2003).

[^3]: *See* File Nos. 20030129AAB and 20030129AAC (filed Jan. 29, 2003).

[^4]: 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) (*BRS/EBS Order*). 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.

[^5]: 47 C.F.R. § 21.44.

[^6]: *See* NCC Waiver Request.

[^7]: *Id.*

[^8]: *See* n.4, *supra.*

[^9]: File No. 20030129AAB.

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

[^11]: File No. 20030129AAC.

[^12]: File No. 20030129AAD.

[^13]: *See* File Nos. 20030129AAC, 20030129AAD, Exhibit 1.

[^14]: *Id.*

[^15]: 47 C.F.R. § 74.34.

[^16]: 47 C.F.R. § 21.43.

[^17]: 47 C.F.R. § 21.44.

[^18]: 47 C.F.R. § 21.44(a).

[^19]: NCC's Petition specifically seeks a waiver of Sections 21.43 and
    21.44 of the Commission's Rules which are applicable to MDS
    licensees. PACE and COPESD's Petitions, however, do not specifically
    seek waivers of Section 74.34 of the Commission's Rules, which is
    applicable to ITFS licensees. Nonetheless, we are treating PACE and
    COPESD's Petitions as requests for waiver of these provisions.

[^20]: *See* 47 C.F.R. § 21.19.

[^21]: *Order*, 18 FCC Rcd at 2449 ¶ 4, *citing WAIT Radio v. FCC*, 418
    F.2d 1153, 1157 (D.C. Cir. 1969) (*WAIT Radio*).

[^22]: *In the Matter of American Mobile Telecommunications Association
    Industrial Telecommunications Association*, Petitions for Amnesty
    Period for Part 90 Private Land Mobile Licensees to File Untimely
    Construction Notifications, *Order,* DA 04-1537, 19 FCC Rcd. 9666
    (PSCID, MD and BD, 2004) *(AMTA Order)*.

[^23]: *AMTA Order*, 19 FCC Rcd at 9668.

[^24]: *Id.*

[^25]: We will also waive, on our own motion, Section 21.44(b) of the
    Commission's Rules to allow consideration of the NCC Waiver Request
    as a late-filed request for reinstatement of its licenses.

[^26]: *BRS/EBS Order*, 19 FCC Rcd at 14165.