**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

TRANSMISSIONS HOLDINGS, INC. )

)

Petition For Waiver of Sections 101.603(a) )

and (b) of the Commission\'s Rules for sites )

at Cherry Tower and Aurora Medical Center )

in or near Denver, Colorado. )

**ORDER**

**Adopted: March 9, 1999 Released: March 10,1999**

By Deputy Chief, Wireless Telecommunications Bureau and Chief, Cable
Services Bureau:

**I. INTRODUCTION**

Before us are two Petitions for Waiver filed by Transmissions Holdings,
Inc. (THI) (THI Waiver Requests)[^1] on February 12, 1998, seeking
waivers of Sections 101.603(a) and (b) of the Commission\'s Rules to
permit THI to use frequencies in the 12.7005 GHz - 13.1445 GHz band (12
GHz band). The 12 GHz band is primarily allocated for use by the Cable
Television Relay Service (CARS). THI desires to use the 12 GHz band for
fixed point-to-point microwave transmission of video entertainment
material on a private carriage basis.[^2] Section 101.603 of the
Commission\'s Rules prohibits private operational fixed service (POFS)
microwave licensees from transmitting video entertainment material in
this band.[^3] Based on the record in this proceeding, we conclude that
THI\'s Waiver Requests should be granted.

**II. BACKGROUND**

Pursuant to Section 101.23 of the Commission\'s Rules, Transmission
Holdings, Inc. (\"THI\") has requested waivers of Sections 101.603(a)
and (b) of the Commission\'s Rules to allow THI to modify its POFS
microwave stations at Cherry Tower and Aurora Medical Center in or near
Denver, Colorado, to transmit video entertainment material in the 12 GHz
band. THI states that the subject facilities are part of its microwave
relay system being constructed in the Denver area, and within a region
designated as a \"quiet zone\" pursuant to Section 101.123 of the
Rules.[^4] THI also has requested expedited treatment of its waiver
requests because it is under contract to provide service using the
subject facilities.[^5]

Sections 101.603(a) and (b) of the Commission\'s Rules limit the
frequencies in which POFS microwave licensees may transmit video
entertainment material. THI asserts that in accordance with these rules,
and until October of 1997, all of THI\'s microwave relay systems
nationwide, including those in Denver, were constructed using 18 GHz
microwave equipment and that these facilities are used to provide video
and telecommunications services for private cable operations.[^6]

On October 14, 1997, the Commission released an Order regarding the
relocation of the Digital Electronic Message Service (\"DEMS\") from the
18 GHz to the 24 GHz band.[^7] The *24 GHz Order* established new
\"quiet zone\" rules for the 18 GHz band in order to protect Department
of Defense facilities from interference.[^8] Under the new rules, no new
applications will be accepted in the 17.8-19.7 GHz band within the
Denver quiet zone.[^9]

THI states that, as a result of the Commission\'s action in the *24 GHz
Order*, its two applications being prepared for its Cherry Tower and
Aurora Medical Center facilities could not be granted for 18 GHz
frequencies and THI had to look elsewhere for spectrum to serve its
customers in Denver who already had contracted for service (including
those served by the Cherry Tower facility).[^10] THI further states that
it therefore filed its applications to modify the above-referenced
facilities to use the 12 GHz band CARS frequencies in order to complete
its video distribution system in the Denver area. In conjunction with
its modification applications, THI has requested waivers of Sections
101.603(a) and (b) of the Commission\'s Rules to the extent that they
prohibit the transmission of video programming services in the 12 GHz
band.[^11] Section 101.603 provides, in relevant part, that stations
licensed in this radio service shall not be used to provide the final RF
link in the chain of transmission of program material except in the
frequency bands 6425-6525 MHz, 18.142-18.580 MHz, and on frequencies
above 21,200 MHz.[^12]

**III. DISCUSSION**

Under Section 101.23 of the Commission\'s Rules, a request for a waiver
of Part 101 of the rules may be granted if: (a) the underlying purpose
of the rule will not be served or would be frustrated, by its
application in the particular case, and 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.[^13] Applicants
must also show the lack of a reasonable alternative.[^14] As discussed
in further detail below, we find that THI has met the requirements of
Section 101.23 of the Commission\'s Rules and that its Waiver Requests
should be granted.

[Unique Facts and Circumstances.]{.underline} THI argues that its
circumstances are unique.[^15] Specifically, THI contends that the
application of the video programming restrictions in Sections 101.603(a)
and (b) in light of the *24 GHz Order* will be inequitable, unduly
burdensome, and contrary to the public interest in this
circumstance.[^16] THI further states that private cable service
delivered using private fixed microwave facilities appears to be the one
segment of the market in which competition to the monopoly franchised
cable operators is thriving.[^17] THI asserts that it was precisely for
this reason that the Commission first opened the 18 GHz frequencies for
the transmission of video entertainment material.[^18] As the Commission
noted at that time, allowing POFS licensees to transmit video
entertainment material \"represents a significant step in furtherance of
our effort to encourage more robust competition in the multichannel
video delivery marketplace.\"[^19]

THI states that because the *24 GHz Order* closes 18 GHz spectrum to
private cable operations, the ability of private cable operators that
use microwave links in their systems to compete in the Denver and
Washington, D.C. markets has been adversely affected in a significant
manner.[^20] In this connection, THI indicates that absent grant of the
instant waiver request, it might have to curtail operations in the
greater Denver area.[^21] THI claims that it has not been able to
identify any other frequency band that meets its operational and
technical requirements, and in which frequency paths are available that
correspond to its network plan.[^22] THI further asserts that grant of
the Waiver Requests will help to foster competition in the video
distribution market in the Denver area and thus serve the public
interest.[^23]

Further, THI argues that application of the Section 101.603 restrictions
in this case would be inequitable because it has made a good faith
investment in 18 GHz facilities in and around Denver in an effort to
compete with the franchised cable operators in that area.[^24] THI
states that it did not, and for the most part could not, anticipate that
the Commission would virtually prohibit all 18 GHz private cable
services in the Denver area.[^25] Further, THI states that its customers
entered into contracts prior to the October 1997 rule changes that
require THI to deliver cable programming to tens of thousands of
subscribers in the Denver area.[^26] THI concludes that application of
the Section 101.603 restrictions would thus deprive many people of video
programming services and impose an enormous financial hardship on THI
and its private cable customers.[^27] THI also contends that the 12 GHz
band frequencies that are the subject of its applications are extremely
lightly used in the Denver area.[^28]

We find that THI has demonstrated unique circumstances in this case.
Without the waiver, THI would have to apply for facilities in a
frequency band other than 18 GHz in a very congested area on a frequency
band which is allowable for non-common carriers to deliver video
services and would have difficulty locating these alternative
frequencies. With the waiver, THI could use only the 12 GHz CARS
frequency band to accomplish all of its objectives. THI\'s efforts to
complete its infrastructure in the Denver area must now account for the
new 18 GHz restricted area around Denver established in the *24 GHz
Order*. We concur that grant of the requested waiver will help to
promote competition in one of the most highly concentrated
communications markets, local video distribution, ­without any
countervailing sacrifice of spectrum efficiency.[^29] We find that THI
has satisfied the requirements of Section 101.23 of the Commission\'s
Rules by showing that the unique facts and circumstances of this case
would render application of Section 101.603 contrary to the public
interest. We find that the public interest would best be served by
allowing THI to utilize 12 GHz band frequencies where 18 GHz links would
normally have been utilized in these two locations. We believe the
circumstances described herein are extraordinary, and limit this relief
to the two subject applications and the associated waiver requests.

[Reasonable Alternatives.]{.underline} Under the circumstances
described, we conclude that the only reasonable alternative available to
THI is to find other spectrum that is available for the provision of
video entertainment material by private operational fixed microwave
licensees outside of the 18 GHz band which it had originally intended to
use. THI states that it could not locate any other bands except the 12
GHz band which was lightly used in the Denver area that would meet its
operational and technical requirements. We have no evidence or
indication to the contrary. Thus, we conclude that THI has made the
requisite showing that no reasonable alternative exists.

**IV. CONCLUSION**

We find that grant of THI\'s Waiver Request is warranted because THI has
demonstrated that its unique facts and circumstances described herein
would render application of Section 101.603 of the Commission\'s Rules
contrary to the public interest. THI has also shown that no reasonable
alternative exists. We therefore grant the Waiver Requests.

**V. ORDERING CLAUSES**

Pursuant to authority contained in Sections 4(i) and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 303(r),
and Section 101.23 of the Commission\'s Rules, 47 C.F.R. § 101.23, IT IS
ORDERED that the Petitions for Waiver filed by THI ARE GRANTED to the
extent stated herein and shall become effective upon the release date of
this order.

This action is taken pursuant to the authority delegated by Section
0.331 of the Commission\'s Rules, 47 C.F.R. § 0.331.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O\'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

Deborah A. Lathen

Chief, Cable Services Bureau

This documented is located at : J:\\PRD\\POLLAK\\THI3.DOC

Edits of JB completed 11-6-98.

Edits of DT 12-8-98.

Edits of DT completed 12-8-98.

Edits of DT 12-9-98.

Edits of DT completed 12-9-98.

Edits of JR 12-21-98.

Edits of JR completed 12-21-98

Edits of KOH 2-25-99.

Edits of KOH completed 2-25-99

[^1]: THI submitted license applications for two facilities on January
    20, 1998 (File No. 740174 for Aurora Medical Center and File No.
    728211 for Cherry Tower) which are associated with the subject
    waiver requests. Special Temporary Authorizations (STAs) were
    granted jointly by the Wireless Telecommunications Bureau and the
    Cable Bureau on March 20, 1998, to allow THI to operate these
    facilities using the CARS band frequencies during the pendency of
    the waiver requests. The STAs also have been extended twice and
    currently are scheduled to expire on April 7, 1999.

[^2]: ^?^ THI filed Petitions for Waiver of Section 101.603 of the
    Commission\'s Rules on February 12, 1998, in support of its two
    applications in the Denver area. THI also submitted a Petition for
    Rulemaking of OpTel, Inc. on April 1, 1998, to allow use of the CARS
    band for delivery of video programming material for private
    operational fixed microwave service.

[^3]: ^?^ 47 C.F.R. § 101.603.

[^4]: ^?^ THI Waiver Requests at 1.

[^5]: ^?^ *Id.* As indicated in note 1 *supra*, THI has been providing
    service using the subject facilities since March 20, 1998, pursuant
    to STA.

[^6]: ^?^ *Id.*

[^7]: ^?^ *See* Amendment of the Commission\'s Rules to Relocate the
    Digital Electronic Message Service from the 18 GHz Band to the 24
    GHz Band and to Allocate the 24 GHz Band for Fixed Service, ET
    Docket No. 97-99, *Order*, 13 FCC Rcd 3581 (rel. October 14,
    1997)(*24 GHz Order*).

[^8]: ^?^ THI Waiver Requests at 2.

[^9]: ^?^ *See 24 GHz Order*, 13 FCC Rcd at 3582.

[^10]: ^?^ *Id.*

[^11]: ^?^ *Id.*

[^12]: ^?^ *See* 47 C.F.R. § 101.603(b)(3).

[^13]: ^?^ *See* 47 C.F.R. §101.23.

[^14]: ^?^ *See* 47 C.F.R. §101.23(b).

[^15]: ^?^ THI Waiver Requests at 2.

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

[^17]: ^?^ *Id.*

[^18]: ^?^ *Id.*

[^19]: ^?^ *See* Amendment of Part 94 of the Commission\'s Rules to
    Permit Private Video Distribution Systems of Video Entertainment
    Access to the 18 GHz Band, *Report and Order,* 6 FCC Rcd 1270
    (1991).

[^20]: ^?^ THI Waiver Requests at 3.

[^21]: ^?^ *Id.*

[^22]: ^?^ *Id.*

[^23]: ^?^ *Id.*

[^24]: ^?^ *Id.*

[^25]: ^?^ *Id.*

[^26]: ^?^ *Id.* at 3-4.

[^27]: ^?^ *Id.* at 4.

[^28]: ^?^ *Id.*

[^29]: ^?^ *See Id.*