**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | DA 08-54                     |
|                                  | *) |                              |
| Applications filed by Licensees  | ** |                              |
| in the Local Multipoint          |    |                              |
| Distribution Service (LMDS)      | *  |                              |
| Seeking Waivers of Section       | *) |                              |
| 101.1011 of the Commission's     | ** |                              |
| Rules and Extensions of Time to  |    |                              |
| Construct and Demonstrate        | *  |                              |
| Substantial Service              | *) |                              |
|                                  | ** |                              |
| Petition of Members of the Rural |    |                              |
| LMDS Group for Waiver of Section | *  |                              |
| 101.1011 of the Commission's     | *) |                              |
| Rules and Extension of           | ** |                              |
| Construction Deadline            |    |                              |
|                                  | *  |                              |
| Request by Members of the LMDS   | *) |                              |
| Coalition for Waiver and Limited | ** |                              |
| Extension of Deadline for        |    |                              |
| Establishing Compliance with     | *  |                              |
| Section 101.1011(a) LMDS         | *) |                              |
| Substantial Service Requirements | ** |                              |
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| Petition of IDT Spectrum, LLC    | *  |                              |
| for Waiver and Extension of Time | *) |                              |
| to Meet Substantial Service      | ** |                              |
| Requirements Found in Section    |    |                              |
| 101.1011 of the Commission's     | *  |                              |
| Rules                            | *) |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: April 11, 2008 Released: April 11, 2008**

By the Chief, Wireless Telecommunications Bureau:

# introduction

1.  In this *Order*, we address 678 applications filed by licensees in
    the Local Multipoint Distribution Service ("LMDS") seeking waivers
    of Section 101.1011 of the Commission's Rules[^1] and extensions of
    time to build out their licenses and demonstrate substantial service
    within their licensed areas.[^2] For the reasons discussed below, we
    find that the public interest is served by extending the ten-year
    construction requirement under Section 101.1011(a) of the
    Commission's Rules[^3] for those licenses listed in the Appendix
    until June 1, 2012. For the reasons discussed below, we otherwise
    deny the waiver requests to the extent that they seek additional
    relief, and we decline to consider requests for clarification of how
    the Bureau may act on future applications to renew LMDS licenses. 

# background

2.  The Commission has allocated 1,300 megahertz of LMDS spectrum in
    each basic trading area ("BTA").[^4] Specifically, the Commission
    allocated two LMDS licenses per BTA -- the "A Block" and "B Block"
    licenses.[^5] The A Block license is comprised of 1,150 MHz of total
    bandwidth, and the B Block license is comprised of 150 MHz of total
    bandwidth.[^6] The A Block consists of the sub bands 27.50-28.35 GHz
    (the A1 Band); 29.10-29.25 GHz (the A2 Band); and 31.075-31.225 GHz
    (the A3 Band).[^7] The B Block consists of the sub bands
    31.00-31.075 (the B1 Band) and 31.225-31.30 GHz (the B2 Band).[^8]
    The same entity may hold the licenses for both the A and B Blocks of
    spectrum in an individual BTA, but each license is auctioned and
    licensed separately.

3.  LMDS licensees may provide any service consistent with the
    Commission's Rules and their regulatory status,[^9] subject to a
    ten-year term from the initial license grant date.[^10] At the end
    of the ten year period, licensees are required to submit an
    acceptable showing to the Commission demonstrating that they are
    providing "substantial service" in each licensed area.[^11] Failure
    by any licensee to meet this requirement will result in forfeiture
    of the license and the licensee will be ineligible to regain
    it.[^12]

4.  The final LMDS band allocation was adopted by the Commission on
    March 20, 1997.[^13] Since allocating the LMDS spectrum, the
    Commission has thus far held two LMDS auctions: Auction 17 and
    Auction 23.[^14] Auction No. 17, the first LMDS auction, began on
    February 18, 1998, and closed on March 25, 1998.[^15] In Auction 17,
    104 bidders won 864 licenses.[^16] Auction No. 23 began on April 27,
    1999, and closed on May 12, 1999.[^17] In Auction 23, 40 bidders won
    161 licenses.[^18] According to the Commission's Universal Licensing
    System (ULS), there are 976 active LMDS licenses.[^19]

5.  *Rural LMDS Group Waiver Request*. The Rural LMDS Group[^20] seeks a
    ten year extension of time for its members to construct and
    demonstrate substantial service in their licensed areas.[^21] The
    Rural LMDS Group asserts that its members cannot economically build
    out their planned LMDS systems prior to their 2008 and 2009
    construction deadlines due to the lack of affordable equipment.[^22]
    The Rural LMDS Group explains that the market for LMDS equipment did
    not develop as anticipated and that the only equipment currently
    available to its members is either limited to point-to-point
    backhaul on certain frequencies or is cost prohibitive for licensees
    to deploy at this time.[^23] More specifically, the Rural LMDS Group
    notes that the only manufacturers producing LMDS equipment that is
    available for purchase by their members and capable of providing
    point-to-multipoint broadband services are Ericsson and Hughes.[^24]
    The Rural LMDS Group contends that none of this equipment is
    suitable for their members' needs due to cost[^25] and technical
    limitations.[^26] The Rural LMDS Group states that equipment vendors
    have been unable to offer their members any timetable for when
    affordable equipment may become available and that to obtain "a firm
    commitment for the production of a sufficient number of product
    units to ensure affordability will take years."[^27] The Rural LMDS
    Group estimates that it will take approximately two to three years
    from the date affordable point-to-multipoint LMDS equipment becomes
    available for them to construct and operate an LMDS system.[^28] The
    Rural LMDS Group is hopeful that such equipment will be available by
    2016.[^29]

6.  *LMDS Coalition Waiver Request.* The LMDS Coalition[^30] asks that
    the Commission extend the construction deadline until July 1, 2011
    for each of its members' A-Block licenses and until July 1, 2013 for
    each of its members' B Block licenses.[^31] The LMDS Coalition
    argues that the requested extension of time will afford its members
    sufficient time to design, construct, and deploy economically
    rational LMDS networks capable of competing in the growing backhaul
    and broadband access sectors.[^32] According to the LMDS Coalition,
    a competitive LMDS industry never materialized because unexpectedly
    high equipment costs, driven in large part by technical restraints
    and unfavorable propagation characteristics, prevented LMDS from
    emerging as a viable competitor to either the local telephone
    exchange or cable television businesses.[^33] However, the LMDS
    Coalition notes that a number of equipment vendors re-entered the
    LMDS marketplace in 2006 with technologically advanced equipment
    designs that have the potential to stimulate growth in the
    industry.[^34] The LMDS Coalition anticipates that equipment prices
    will continue to drop and that equipment performance will continue
    to improve as additional technological improvements occur over the
    next 18 months.[^35] However, the LMDS Coalition contends that,
    while next generation equipment, offering better throughput at lower
    prices, started becoming available for the LMDS A Block in 2006,
    there is still no equipment currently available that operates on the
    LMDS B-Block.[^36] Accordingly, the LMDS Coalition requests a longer
    extension of time with respect to the B-Block licenses.

7.  The LMDS Coalition also asks that the Commission clarify that it
    will grant renewal applications for these licenses notwithstanding
    the failure to demonstrate substantial service by the end of their
    initial license term, conditioned on a demonstration of substantial
    service by the extended deadline.[^37] The LMDS Coalition further
    requests that the Commission not accept competing applications that
    would be mutually exclusive with a renewal application filed by one
    if its members.[^38]

8.  *IDT Spectrum Request*. On September 28, 2007, IDT Spectrum filed
    applications to extend the construction deadline for 16 LMDS
    licenses by an additional ten years.[^39] IDT Spectrum notes that it
    has experienced the same difficulties recounted by the Rural LMDS
    Group and the LMDS Coalition.[^40] Although IDT Spectrum recognizes
    that "improvements in LMDS technology are underway, . . . there is
    substantial uncertainty as to when the equipment will be available
    at prices conducive to economically justifiable construction of
    facilities and initiation of services."[^41] IDT Spectrum believes
    that a ten year extension is necessary to allow for the development
    of affordable equipment and market demand.[^42]

9.  *Corr Wireless Request.* In addition, Corr Wireless filed an
    application for the extension of the construction deadline for LMDS
    Station WPLM443 on December 26, 2007.[^43] Corr Wireless agrees with
    the representations made by the LMDS Coalition and the Rural LMDS
    Group and emphasizes the issues faced by rural licensees.[^44] Corr
    Wireless requests a five year extension of time to demonstrate
    substantial service because it will permit equipment for the LMDS A
    Block to become more widely available to rural licensees.[^45]

10. *Comments.* On December 19, 2007, the Bureau released a *Public
    Notice* seeking comment on applications filed by members of the
    Rural LMDS Group and the LMDS Coalition. On January 9, 2008, the
    Bureau released a second *Public Notice* providing updated file
    numbers for Qwest Corporation, which is a member of the LMDS
    Coalition,[^46] clarifying the nature of the relief sought by IDT
    Spectrum, LLC (IDT Spectrum),[^47] and including an additional
    extension application that had been filed since the release of the
    *December Public Notice*.[^48] Comments and reply comments were due
    on or before January 18, 2008 and February 1, 2008,
    respectively.[^49] The Commission received four comments[^50] and
    seven reply comments supporting the waiver requests.[^51]

11. Commenting parties in this proceeding generally agree that a waiver
    is warranted to extend the deadlines by which LMDS licensees must
    demonstrate the provision of substantial service within their
    licensed areas. Although the specifics offered by the parties
    differ, commenting parties generally contend that LMDS licensees
    will be unable to meet their construction deadlines due to the lack
    of available, affordable, or viable equipment for use in this
    band.[^52] For example, the National Telecommunications Cooperative
    Association ("NTCA") asserts that the only equipment available is
    either limited to point-to-point wireless backhaul on certain
    frequencies or is cost prohibitive for many licensees to
    deploy.[^53] The Alliance of Small Market LMDS Licensees
    ("Alliance") notes that its members have been unable to identify a
    supplier of mass produced and affordable transmitting equipment that
    is authorized for operation on the LMDS frequency bands.[^54]
    Although the LMDS Coalition believes that "viable, cost-effective
    equipment is on the horizon, it will come too late for most LMDS
    licensees to deploy new, economically rational networks in time to
    satisfy the Commission's requirement."[^55] Similarly, Clearwire
    Corporation ("Clearwire") contends that cost effective equipment
    only recently became available, and, as a result, there is currently
    insufficient time remaining in which to plan, purchase, construct
    and deploy service over these licenses prior to the upcoming
    substantial service deadlines.[^56]

12. Commenting parties offered limited information to support a specific
    timeline as to the availability of affordable, viable equipment for
    use in the band. As noted above, some commenting parties state that
    equipment is now available for deployment in the LMDS A Block,
    albeit that it will still take some time to reach the point of
    deploying sufficient facilities to demonstrate substantial service
    within each licensed area.[^57] Blooston, Mordkofsky, Dickens,
    Duffy, and Prendergast, LLP ("Blooston") notes that, "\[w\]hile
    equipment is now starting to become available by manufacturers such
    as Hughes and Ericsson, it will take several years for mass
    production to bring prices down to an affordable level for rural
    subscribers; and it will likely take even longer for sufficient
    equipment to be available to meet demands of rural citizens, since
    larger carriers are likely to dominate delivery schedules at
    first."[^58]

13. Commenting parties either remain silent or differ from one another
    on the necessary length of an extension of the substantial service
    deadlines. For example, Clearwire believes that grant of "some
    extension of time is in order."[^59] Blooston believes that a three
    to five year extension of time is the minimum necessary for LMDS
    licensees to provide service to non-rural areas and that a ten year
    extension of time is more appropriate for rural LMDS licensees to
    provide substantial service.[^60] The Alliance contends that a
    ten-year extension is more appropriate especially in markets smaller
    than the top-50 in the United States.[^61] NTCA and the Rural LMDS
    Group contend that rural licensees should be granted an additional
    ten year extension of time to build out their licenses in order to
    provide advanced wireless broadband services using
    point-to-multipoint equipment for the band.[^62]

14. *Additional Waiver Requests Filed Since the Release of the Public
    Notice*. Since the Bureau released the *December Public Notice,* a
    number of other LMDS licensees have filed applications seeking
    waivers of Section 101.1011 of the Commission's Rules and extensions
    of time to build out their licenses and demonstrate substantial
    service within their licensed areas. Specifically, since the release
    of the *December Public Notice*, the licensees of an additional 109
    LMDS stations have filed extension applications. Accordingly, there
    are now pending extension applications for 678 of the 976 active
    LMDS licenses. In addition, the licensees of 41 LMDS stations have
    filed construction notifications stating that they meet the
    substantial service requirements in their licensed areas.[^63]

15. The Virginia Tech Foundation (Foundation) filed applications seeking
    two year extensions of time to build out its four A Block
    licenses.[^64] Virginia Tech uses the LMDS licenses to engage in
    research and development related to the spectrum and to promote
    rural broadband infrastructure development.[^65] According to
    Virginia Tech, it has leveraged LMDS spectrum in several areas of
    research and outreach.[^66] Virginia Tech explains that it is in the
    process of developing an LMDS service project to provide diversity
    for fiber optic cabling in a university campus research network
    environment and also to provide access for remote laboratory and
    office locations not served by fiber.[^67] The manufacturer of the
    equipment identified by Virginia Tech as capable of operating in the
    gigabit per second range has notified them that the specific
    equipment "is currently unreleased though release is expected."[^68]
    Virginia Tech requests the additional time necessary to acquire this
    equipment and to work through any technical challenges which will
    likely be presented.[^69]

16. SpeedUSNY.com, L.P. ("SpeedUSNY") and T-Mobile License, LLC
    ("T-Mobile") filed applications seeking extensions of time
    consistent with the LMDS Coalition Waiver Request. Specifically, on
    January 7, 2008, SpeedUSNY, which is a member of the LMDS Coalition,
    filed an application seeking a three year extension of time to build
    out its A Block license.[^70] T-Mobile filed applications on
    February 27, 2008 seeking three and five year extensions of time to
    build out its A Block and B Block licenses, respectively.[^71]
    T-Mobile states that it "plans to have the equipment needed to
    incorporate LMDS into its business operations as soon as vendors can
    make it available. . ." but requires the additional time to deploy
    service.[^72]

17. Clearwire Corporation ("Clearwire"), which holds two LMDS licenses
    through its subsidiary, Fixed Wireless Holdings, LLC, filed
    applications on February 14, 2008, requesting that the Commission
    extend the build out deadlines for its two A Block licenses by three
    years to July 31, 2011.[^73] Clearwire contends that a waiver is
    warranted due to the fact that cost effective 28 GHz equipment only
    recently became available, and, as a result, there is currently
    insufficient time remaining in which to plan, purchase, construct
    and deploy service over these licenses prior to the substantial
    service deadline.[^74]

18. Pinnacle LMDS, L.L.C. ("Pinnacle") filed an application seeking a
    five year extension of time to build out its A Block license.[^75]
    Pinnacle has "investigated" various applications of LMDS in its
    licensed area and agrees with the representations made by the LMDS
    Coalition and the Rural LMDS Group concerning the state of the LMDS
    industry and the lack of commercially viable LMDS equipment.[^76]
    Pinnacle emphasizes the issues faced by rural licensees because LMDS
    stations require an extraordinary multiplicity of sites to cover
    large areas.[^77] Pinnacle believes a five year extension of time
    will permit equipment for the LMDS A Block to become more widely
    available to rural licensees.[^78]

19. Consolidated Telcom, G.W. Wireless, Inc. ("G.W. Wireless"), IT&E
    Overseas, Inc. (IT&E), Rainier Connect, Inc. ("Rainier"), South
    Slope Cooperative Telephone Company ("South Slope"), Townes
    Telecommunications, Inc. ("Townes"), Venture Wireless, Inc.
    ("Venture Wireless"), and Webster-Calhoun Cooperative Telephone
    Association ("Webster-Calhoun") filed similar requests seeking
    extensions of at least five years, and preferably ten years, beyond
    their current license build out and renewal deadlines.[^79] They
    argue that an extension is needed due to the lack of affordable LMDS
    equipment and a larger collapse in the fixed broadband wireless
    market that has made it economically unfeasible for LMDS licensees
    (and especially licensees in rural markets) to construct their
    networks and to initiate service.[^80] They hope that "five years
    will allow sufficient time for recent advances in LMDS technology to
    take hold, and for the next generation of fixed wireless network and
    customer premises equipment ("CPE") to become available for small
    and rural carriers."[^81] They estimate that, once cost effective
    equipment is available, the time period for design, construction and
    deployment of an LMDS system could be as long as 24 to 36
    months.[^82]

20. Fleming-Mason Service Corporation ("Fleming-Mason"), Spectra Wave,
    Inc. ("Spectra Wave"), Sycamore Telephone Company ("Sycamore"), Star
    Search Rural TV & Cellular, Inc. ("Star Search"), BTA Associates,
    LLC ("BTA Associates") , LMDS, L.P., and Northern Communications,
    Inc. ("Northern") filed waiver requests seeking to extend the
    substantial service deadline for their LMDS licenses by an
    additional ten years.[^83] They note that they have faced "the same
    issues that have delayed construction that were described in
    applications filed by members of the Rural LMDS Group."[^84] Star
    Search contends that it has been unable to procure the equipment
    necessary to build a viable network to serve its existing customer
    base.[^85] Moreover, Star Search argues that this problem of a lack
    of commercially viable equipment is exacerbated in rural areas like
    southeastern Oklahoma and northeastern Texas due to the propagation
    characteristics of the LMDS service.[^86] Similarly, Northern states
    that it cannot economically build out its licenses due to the lack
    of affordable equipment.[^87] LMDS, L.P. reiterates that it cannot
    efficiently construct, operate, and provide any service that would
    meaningfully benefit the public using its LMDS spectrum due to the
    lack of either affordable equipment or a developed marketplace for
    LMDS services.[^88]

21. On March 17, 2008, Swayzee Telephone Company, Inc. ("Swayzee") filed
    a waiver request seeking an unspecified extension of time to build
    out its A Block license in Marion, Indiana.[^89] Swayzee contends
    that an extension of time is necessary and the "direct result of
    lack of an economic form of delivery technology available for this
    bandwidth."[^90] Swayzee states that there is not a viable solution
    for this technology as of March 17, 2008 but that it is hopeful that
    a solution will be available reasonably soon.[^91]

# discussion

22. LMDS licensees may provide any service consistent with the
    Commission's Rules and their regulatory status,[^92] subject to a
    ten-year term from the initial license grant date.[^93] At the end
    of the ten year period, licensees are required to submit an
    acceptable showing to the Commission demonstrating that they are
    providing "substantial service" in each licensed area.[^94] The
    Commission defined "substantial service" as "service that is sound,
    favorable, and substantially above a level of mediocre service that
    just might minimally warrant renewal."[^95] In adopting a
    substantial service requirement for LMDS licensees, the Commission
    concluded that, "\[a\]lthough LMDS licensees will have incentives to
    construct facilities to meet the service demands in their licensed
    service areas, . . . minimum construction requirements can promote
    the efficient use of the spectrum, encourage the provision of
    service to rural, remote, and insular areas, and prevent the
    warehousing of spectrum."[^96] Failure by any licensee to meet this
    requirement will result in forfeiture of the license and the
    licensee will be ineligible to regain it.[^97]

23. Section 1.946 of the Commission's Rules provides that a request for
    extension of time to construct "may be granted if the licensee shows
    that failure to meet the construction deadline is due to involuntary
    loss of site or other causes beyond its control."[^98] The rule
    prohibits granting extensions based on a failure to obtain
    financing, failure to obtain an antenna site, failure to order
    equipment, or because of a transfer of control of the licensee.[^99]
    Section 1.925 of the Commission's Rules[^100] provides that a waiver
    of the Commission's Rules may be granted if it is shown that
    either (1) the underlying purpose of the rule(s) would not be served
    or would be frustrated by application to the instant case, and that
    a grant of the requested waiver would be in the public interest;
    or (2) in view of the unique or unusual circumstances of the instant
    case, application of the rule(s) would be inequitable, unduly
    burdensome or contrary to the public interest, or the applicant has
    no reasonable alternative.[^101]

24. We find that the LMDS licensees before us have demonstrated that
    they faced factors beyond their control, including difficulties in
    obtaining viable, affordable equipment, that warrant granting a
    limited extension of time to permit these licensees to continue to
    build out their licenses. We note that the applications before us in
    this proceeding represent a majority of LMDS licenses for which
    buildout requirements are approaching, and that the types of
    challenges faced by these applicants in developing service for the
    band have been nearly uniform.

25. A number of LMDS licensees before us state that equipment is
    becoming available, at least for the A Block, and that there is
    potential for LMDS and other upper microwave frequencies to be used
    over time as a high-capacity, broadband access service to consumers
    or as a backhaul solution for licensees in the 700 MHz Band,[^102]
    the Advanced Wireless Services (AWS-1),[^103] and other bands
    suitable for mobile broadband service.[^104] We note that the
    Commission has issued licenses for the AWS-1 band in the past 18
    months[^105] and recently has completed an auction for the 700 MHz
    Band.[^106] We anticipate that, in the next several years, services
    in these bands will develop robustly,[^107] along with other mobile
    and fixed wireless broadband services.

26. Under those circumstances, we determine that strict enforcement of
    Section 101.1011(a) of the Commission's Rules[^108] would not serve
    the rule's underlying purpose, as it would tend to slow, rather than
    accelerate, equipment development and service deployment. We believe
    the public interest would best be served by granting these LMDS
    licensees a limited amount of additional time in which to construct
    their licenses, to allow the equipment market to develop further and
    to give them the option to coordinate their buildout with licensees
    in the 700 MHz and AWS bands. Accordingly, we extend the ten-year
    construction requirement under Section 101.1011(a) of the
    Commission's Rules[^109] for those licenses listed in the Appendix
    until June 1, 2012, nearly four years from the end of the first
    license term for many of the applicants before us.[^110]

27. We find that grant of a longer extension would not promote the
    Commission's goals regarding efficient use of spectrum and timely
    deployment of service.[^111] Moreover, requests for longer
    extensions of time are also unsupported on the record and without
    precedent. To the extent that applicants rely upon the *BROADWAN
    Report*[^112] to support the proposition that LMDS equipment is not
    expected to become technically and financially viable for another
    ten years,[^113] this reliance is misplaced.[^114] Applicants appear
    to rely on the conclusion in the *BROADWAN Report* that it will take
    approximately 10 years to develop all of the "deliverables" needed
    to develop the system contemplated in the report.[^115] The system
    contemplated in the *BROADWAN Report*, however, goes far beyond LMDS
    related technology and includes the project's work towards the
    creation of hybrid architectures combining wireline (*e.g.,* DSL,
    cable modem and fiber) and wireless technologies (*e.g.,* LMDS and
    satellite) to deliver broadband services.[^116] Moreover, the
    *BROADWAN Report* is limited and dated in terms of being instructive
    as to the state of LMDS technology development. In particular, we
    note that the underlying study discussed in the *BROADWAN Report*
    concluded in May of 2006.[^117] The record in this proceeding
    indicates that the cost of LMDS A Block equipment has significantly
    fallen since 2006 even as manufacturers increase the performance and
    efficiency of the equipment.[^118] Accordingly, we find nothing in
    the record to support such a broad extension of time.

28. We decline to consider at this time the requests of those applicants
    seeking clarification of how the Bureau may act on future
    applications to renew their licenses.[^119]  Because those
    applicants have not filed renewal applications at this time, a
    ruling on prospective renewal requests would be premature.[^120] 
    Thus, while we are extending the deadline to meet the construction
    requirements, we remind LMDS licensees that they must timely file a
    renewal application in compliance with the Commission's Rules for
    their licenses.[^121]

# ordering clauses

29. Accordingly, IT IS 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 Sections 1.3, 1.925, and 1.946 of the Commission's Rules,
    47 C.F.R. §§ 1.3, 1.925, 1.946, that the applications for waivers
    and extensions of time to demonstrate substantial service listed in
    the Appendix to this *Order* ARE GRANTED to the extent indicated and
    are otherwise DENIED, and the deadline for those licenses listed in
    the Appendix to demonstrate substantial service IS EXTENDED until
    June 1, 2012.

30. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of
    the Communications Act, as amended, 47 U.S.C. §§ 154(i), 303(r), and
    Sections 0.331 and 1.949 of the Commission's rules, 47 C.F.R. §§
    0.331, 1.949, the requests filed by the LMDS Coalition and T-Mobile
    to conditionally grant applications for LMDS license renewal ARE
    DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Fred B. Campbell, Jr.

    Chief, Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 101.1011.

[^2]: The applications are listed in the Appendix to this *Memorandum
    Opinion and Order*. On December 19, 2007, the Wireless
    Telecommunications Bureau ("Bureau") released a *Public Notice*
    seeking comment on pending extension applications. *See* Wireless
    Telecommunications Bureau Seeks Comment on Applications Filed by
    Licensees in the Local Multipoint Distribution Service (LMDS)
    Seeking Waivers of Section 101.1011 of the Commission's Rules and
    Extensions of Time to Construct and Demonstrate Substantial Service,
    *Public Notice,* 22 FCC Rcd 21703 (WTB 2007) (*December Public
    Notice*); *see also* Wireless Telecommunications Bureau Seeks
    Comment on Applications Filed by Licensees in the Local Multipoint
    Distribution Service (LMDS) Seeking Waivers of Section 101.1011 of
    the Commission's Rules and Extensions of Time to Construct and
    Demonstrate Substantial Service, *Public Notice,* 23 FCC Rcd 162
    (WTB 2008) (*January Public Notice*). The Commission received four
    comments and seven reply comments.

[^3]: 47 C.F.R. § 101.1011(a).

[^4]: *See* Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5 GHz Frequency Band, to
    Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules and
    Policies For Local Multipoint Distribution Service and For Fixed
    Satellite Services, CC Docket No. 92-297, *Second Report and Order,
    Order on Reconsideration and Fifth Notice of Proposed Rulemaking*,
    12 FCC Rcd 12545, 12605 ¶ 136 (1997) ("*Second LMDS Report and
    Order"*)*; see also* Rand McNally Commercial Atlas & Marketing Guide
    36-39 (123rd ed. 1992). Rand McNally is the copyright owner of the
    Major Trading Area (MTA) and BTA Listings, which list the BTAs
    contained in each MTA and the counties within each BTA, as embodied
    in Rand McNally's Trading Area System MTA/BTA Diskette, and
    geographically represented in the map contained in Rand McNally's
    Commercial Atlas & Marketing Guide. The conditional use of Rand
    McNally copyrighted material by interested persons is authorized
    under a blanket license agreement dated February 10, 1994 and covers
    use by LMDS applicants. This agreement requires authorized users of
    the material to include a legend on reproductions (as specified in
    the license agreement) indicating Rand McNally ownership. There are
    a total of 493 BTAs in the LMDS.

[^5]: *See Second LMDS Report and Order*, 12 FCC Rcd at 12556 ¶ 12.

[^6]: *See id.*

[^7]: *See* 47 C.F.R. § 101.1005.

[^8]: *See* 47 C.F.R. § 101.1005.

[^9]: *See* 47 C.F.R. § 101.1013(b).

[^10]: *See Second LMDS Report and Order,* 12 FCC Rcd at 12657 ¶ 259.
    Pursuant to 47 C.F.R. § 101.67, LMDS licenses are issued for a
    period not to exceed ten years.

[^11]: *See* 47 C.F.R. § 101.1011(a); *see also Second LMDS Report and
    Order,* 12 FCC Rcd at 12658 ¶¶ 261-262.

[^12]: *See* 47 C.F.R. § 101.1011(a).

[^13]: *See Second LMDS Report and Order,* 12 FCC Rcd at 12556 ¶ 13;
    *see also* Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission\'s Rules to Redesignate the 27.5 GHz Frequency Band, to
    Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules and
    Policies For Local Multipoint Distribution Service and For Fixed
    Satellite Services, CC Docket No. 92-297, *First Report and Order
    and Fourth Notice of Proposed Rulemaking*, 11 FCC Rcd 19005, 19025 ¶
    45 (1996) (*First LMDS Report and Order*) (allocating the initial 1
    GHz of spectrum for LMDS and seeking comment on the allocation of an
    additional 300 MHz of spectrum at 31.0-31.3 GHz).

[^14]: *See, e.g.,* LMDS Auction Closes, *Public Notice,* 13 FCC Rcd
    18217 (1998) (*Auction 17 Closing PN*); Local Multipoint
    Distribution Service Auction Closes, *Public Notice,* 14 FCC Rcd
    8543 (1999) (*Auction 23 Closing PN*). The NY BTA is the only BTA
    for which an LMDS license was issued, by waiver, prior to Auctions
    17 and 23. Specifically, in 1991, the Commission granted a waiver
    authorizing Hye Crest Management, Inc. (Hye Crest) to provide
    service on 1 GHz of contiguous spectrum at 27.5- 28.5 GHz in eight
    of the twenty-six counties that now comprise the NY BTA. *See* Hye
    Crest Management, Inc., *Memorandum Opinion and Order*, 6 FCC Rcd
    332 (1991) (*Hye Crest MO&O*). In the wake of the *Hye Crest MO&O*
    and the flood of waiver applications requesting similar relief, the
    Commission initiated a rulemaking proceeding on January 8, 1993 to
    amend the Commission's Rules to reallocate spectrum for LMDS use and
    to establish rules governing LMDS. *See* Rulemaking to Amend Part 1
    and Part 21 of the Commission's Rules to Multipoint Distribution
    Service, CC Docket No. 92-297, *Notice of Proposed Rulemaking*,
    *Order, Tentative Decision and Order on Reconsideration*, 8 FCC Rcd
    557 (1993) (*First LMDS NPRM*). For a more thorough discussion of
    the evolution of LMDS and of the unique history of the NY BTA, see
    SpeedUSNY.com, Request for Finding of Substantial Service for Local
    Multipoint Distribution Service (LMDS) Station WLT379, New York, New
    York; IDT Spectrum, LLC, Request for Waiver and Extension of Time of
    Section 101.1011 of the Commission's Rules or, in the Alternative, a
    Finding of Substantial Service for Local Multipoint Distribution
    Service (LMDS) Station WPOI485, New York, New York, *Memorandum
    Opinion and Order and Order on Reconsideration,* 22 FCC Rcd 13974
    (WTB 2007) (*NY* *LMDS Order*).

[^15]: *See* FCC Announces Spectrum Auction Schedule for 1998, *Public
    Notice,* 12 FCC Rcd 19726 (1997); *Auction 17 Closing PN,* 13 FCC
    Rcd at 18217. Although the New York BTA (BTA321) consists of
    twenty-six counties, the A Block license that was available for
    auction did not include the LMDS spectrum for the eight counties
    that comprised the licensed area granted to Hye Crest in 1991. *See,
    e.g., Second LMDS Report and Order,* 12 FCC Rcd at 12604 ¶ 135.
    []{.mark}

[^16]: *See Auction 23 Closing PN,* 14 FCC Rcd at 8543.

[^17]: *See* Auction of 168 Local Multipoint Distribution Service
    Licenses, *Public Notice,* 14 FCC Rcd 6163 (1999) (*Auction 23
    Eligibility PN*); *Auction 23 Closing PN,* 14 FCC Rcd at 8543. The
    second LMDS auction is otherwise known as the LMDS re-auction.

[^18]: *Auction 23 Closing PN,* 14 FCC Rcd at 8543.

[^19]: According to ULS, of the 976 active LMDS licenses, 496 are in the
    A Block and 480 are in the B Block.

[^20]: *See* Rural LMDS Group, Petition for Waiver of Section 101.1011
    of the Commission's Rules and Extension of Construction Deadline
    (filed May 25, 2007) ("Rural LMDS Group Waiver Request"). The
    members of the Rural LMDS Group are listed in Appendix A to the
    *December Public Notice.* *See December Public Notice,* Appendix A.
    We note that the members of the Rural LMDS Group also individually
    filed applications electronically in the Universal Licensing System
    (ULS) seeking extensions of time for 112 LMDS licenses. *See, e.g.,*
    Farmers Telephone Cooperative, Inc., File No. 0003064168 (June 8,
    2007) ("Farmers Application").

[^21]: Rural LMDS Group Waiver Request at 1. The members of the Rural
    LMDS Group individually filed applications seeking extensions of
    time for 112 LMDS licenses, of which 57 are in the A Block and 55
    are in the B Block.

[^22]: Rural LMDS Group Waiver Request at 1.

[^23]: Rural LMDS Group Waiver Request at 2.

[^24]: Rural LMDS Group Waiver Request at 3.

[^25]: Rural LMDS Group Waiver Request at 3*.* The Rural LMDS Group
    argues that LMDS equipment is cost prohibitive because it is only
    being produced in small quantities and not in mass production. *Id.*

[^26]: According to the Rural LMDS Group, LMDS equipment only operates
    in a small portion of the bandwidth and has a limited range of only
    one to five miles due to the significant propagation loss of the
    band. In addition, the Rural LMDS Group contends that LMDS equipment
    requires line-of-sight between the customer premises equipment (CPE)
    and base station hub. Rural LMDS Group Waiver Request at 3*.*

[^27]: Rural LMDS Group Waiver Request at 4.

[^28]: Rural LMDS Group Waiver Request at 4.

[^29]: Rural LMDS Group Waiver Request at 4. The Rural LMDS Groups cites
    to a study conducted by BROADWAN from December 1, 2003 through May
    31, 2006 for the proposition that "broadband point-to-multipoint
    equipment capable of operating at 20 GHz and above is not expected
    to become technically and financially viable for another ten years."
    *See id.* (*citing* BROADWAN, Broadband Services for Everyone over
    Fixed Wireless Access Networks, *Final Activity Report*, at Appendix
    1 (Aug. 30, 2006) (*BROADWAN Report*)). The *BROADWAN Report* may be
    accessed at http://www.telenor.no/broadwan/. As explained in the
    Discussion below, this is a misinterpretation of the language in the
    *BROADWAN Report.*

[^30]: *See* LMDS Coalition, Request for Waiver and Limited Extension of
    Deadline for Establishing Compliance with Section 101.1011(a) LMDS
    Substantial Service Requirements (filed June 14, 2007) ("LMDS
    Coalition Waiver Request"). The members of the LMDS Coalition are
    listed in Appendix B to the *December Public Notice.* *See December
    Public Notice,* Appendix B. The members of the LMDS Coalition also
    individually filed applications electronically in ULS seeking
    extensions of time for 440 LMDS licenses. *See, e.g.,* Alltel
    Communications, Inc., File No. 0003071271 (June 14, 2007) ("Alltel
    Application").

[^31]: LMDS Coalition Waiver Request at 2. The members of the LMDS
    Coalition individually filed applications seeking extensions of time
    for 440 LMDS licenses, of which 140 are in the A Block and 300 are
    in the B Block.

[^32]: LMDS Coalition Waiver Request at 15, 18.

[^33]: LMDS Coalition Waiver Request at 5. More specifically, the LMDS
    Coalition states that first generation LMDS equipment was
    significantly more expensive than comparable equipment used in lower
    frequency bands because equipment capable of operating in the
    relatively high LMDS bands could not use customary, silicon-based
    circuit designs. *Id.* at 6. In addition, the LMDS Coalition
    contends that the unfavorable propagation characteristics of the
    band require the deployment of far more LMDS base stations to cover
    the same geographic area than that required for networks operating
    in lower bands. *Id.*

[^34]: LMDS Coalition Waiver Request at 9. As a result of technological
    advances, the LMDS Coalition states that LMDS equipment prices have
    dropped 30 to 50 percent, and that equipment throughput has
    increased from approximately 155 Megabits-per-second ("Mbps") in
    2001 to 400 Mbps currently, with throughput speeds of up to 800 Mbps
    possible in the near future. *Id.* at 10.

[^35]: LMDS Coalition Waiver Request at 15.

[^36]: LMDS Coalition Waiver Request at 9.

[^37]: Letter from Paul J. Sindebrand, Esq., counsel to the LMDS
    Coalition, to Marlene H. Dortch, Secretary, Federal Communications
    Commission (Oct. 16, 2007) at 2 (*October Letter*). Specifically,
    the LMDS Coalition proposes that the Bureau release a Public Notice,
    subsequent to the revised construction deadlines, to open a window
    for the filing of applications for LMDS authorizations to operate in
    those BTAs where licenses were terminated for failure to provide
    substantial service. *See id.*

[^38]: *See id.* Specifically, the LMDS Coalition requests that we
    clarify that no LMDS "competing applications" will be accepted
    except as specified in that future Public Notice. *See id.*

[^39]: ^?^ *See e.g.,* File No. 0003185188, Petition for Waiver and
    Extension of Time to Meet Substantial Service Requirements Found in
    Section 101.1011 of the Commission's Rules (filed Sep. 28, 2007)
    ("IDT Spectrum Waiver Request") at 5. IDT Spectrum holds 10 A Block
    licenses and six B Block licenses.

[^40]: IDT Spectrum Waiver Request at 6-8.

[^41]: IDT Spectrum Waiver Request at 8.

[^42]: IDT Spectrum Waiver Request at 5-10.

[^43]: *See* File No. 0003268451 (filed Dec. 26, 2007) ("Corr Wireless
    Application").

[^44]: *See id.,* Request for Waiver of Build-Out Deadline ("Corr
    Wireless Waiver Request") at 1.

[^45]: *Id.*

[^46]: In the *December Public Notice,* Appendix B incorrectly listed
    the file numbers associated with the extension applications for
    Stations WPLM325, WPLM326, WPLM327, WPLM328, WPLM329, WPLM330,
    WPLM331, WPLM332. Appendix B to the *January Public Notice* listed
    the correct file numbers and also correctly reflected that the
    licenses are held by Qwest Corporation.

[^47]: In the *December Public Notice,* the extension applications filed
    by IDT Spectrum were incorrectly listed in the appendix for
    applications filed by members of the LMDS Coalition. *See December
    Public Notice,* Appendix B. The file numbers associated with IDT
    Spectrum's applications were therefore listed in a separate appendix
    to the *January Public Notice. See January Public Notice,* Appendix
    C*.*

[^48]: *See* Corr Wireless Application.

[^49]: *See December Public Notice* at 1. The *January Public Notice*
    did not modify the comment and reply comment deadlines.

[^50]: Alliance of Small Market LMDS Licensees, Comments (filed Jan. 18,
    2008) ("Alliance Comments"); Blooston, Mordkofsky, Dickens, Duffy,
    and Prendergast, LLP (filed Jan. 18, 2008) "(Blooston Comments");
    Fixed Wireless Communications Coalition, Comments (filed Jan. 18,
    2008) ("FWCC Comments"); National Telecommunications Cooperative
    Association, Comments (filed Jan. 18, 2008) ("NTCA Comments").

[^51]: Clearwire Corporation, Reply Comments (filed Jan. 31. 2008)
    ("Clearwire Reply Comments"); Cloudnine Communications, LLC and
    LMDS, L.P., Reply Comments (filed Feb. 1. 2008) ("Cloudnine Reply
    Comments"); FiberTower Corporation, Reply Comments (filed Feb. 1.
    2008) ("FiberTower Reply Comments"); IDT Spectrum, LLC, Reply
    Comments (filed Feb. 1. 2008) ("IDT Spectrum Reply Comments"); LMDS
    Coalition, Reply Comments (filed Feb. 1. 2008) ("LMDS Coalition
    Reply Comments"); Rural LMDS Group, Reply Comments (filed Feb. 1.
    2008) ("Rural LMDS Group Reply Comments"); Star Search Rural TV &
    Cellular, Inc., Reply Comments (filed Feb. 1. 2008) ("Star Search
    Reply Comments").

[^52]: *See, e.g.,* LMDS Coalition Reply Comments at 3 (noting that
    there is general agreement in the record that the lack of economical
    equipment availability is the primary reason that LMDS has not
    become commercially viable thus far); Rural LMDS Group Reply
    Comments at 1-2 (noting a consensus among commenters as to the lack
    of affordable equipment for point-to-multipoint applications); NTCA
    Comments at 2 ("good cause to grant a waiver and extension of time
    due to the lack of available equipment"); *see also* Alliance
    Comments at 1-2; Cloudnine Reply Comments at 1-2; Blooston Comments
    at 2-3.

[^53]: NTCA Comments at 2.

[^54]: Alliance Comments at 2; *see also* Cloudnine Reply Comments at 2.

[^55]: LMDS Coalition Reply Comments at 4.

[^56]: Clearwire Reply Comments at 1-2; *see also* NTCA Comments at 2
    (noting that there "is optimism that recent technological advances
    will bring the LMDS promise to fruition, but it is not possible for
    licensees to meet their current construction requirements").

[^57]: *See LMDS* Coalition Reply Comments at 3-4; Clearwire Reply
    Comments at 1-2; *see also* FWCC Comments at 1-2; FiberTower Reply
    Comments at 1-2.

[^58]: Blooston Comments at 2.

[^59]: Clearwire Reply Comments at 2.

[^60]: Blooston Comments at 3 n.7.

[^61]: Alliance Comments at 3; *see also* Cloudnine Reply Comments at 2.

[^62]: NTCA Comments at 3; Rural LMDS Group Reply Comments at 1-2.

[^63]: Those substantial service showings will be addressed separately.

[^64]: *See, e.g.,* File No. 0003344210 (filed Mar. 4, 2008), Waiver to
    Allow Extension of Build Outs.

[^65]: *See id.* at 1.

[^66]: *See id.* For example, in 1998, the university led the creation
    of the LMDS Research Consortium which brought together several
    licensees, equipment manufacturers, and research laboratories to
    develop and promote LMDS technology. *See id.*

[^67]: *See id.* Virginia Tech also notes that it is working with the
    Mid-Atlantic Broadband Cooperative (MBC) to utilize LMDS to provide
    high capacity service to extend MBC's fiber optic footprint. *See
    id.*

[^68]: *Id.* at 1-2.

[^69]: *See id.* at 2.

[^70]: *See* File No. 0003278300 (filed Jan. 7, 2008) ("SpeedUSNY
    Application"). On July 31, 2007, SpeedUSNY had been granted an
    extension of time to demonstrate substantial service for Station
    WLT379 to October 6, 2008. *See NY LMDS Order,* 22 FCC Rcd at 13975
    ¶ 1. SpeedUSNY now requests a further extension of time to July 1,
    2011 to construct and demonstrate substantial service for Station
    WLT379 consistent with the terms of the LMDS Coalition Waiver
    Request.

[^71]: *See, e.g.,* 0003338472 (filed Feb. 27, 2008), Request for
    Extension of Time to Complete Construction ("T-Mobile Waiver
    Request"). T-Mobile holds five A Block licenses and 11 B Block
    licenses.

[^72]: T-Mobile Waiver Request at 3. T-Mobile repeats the request of the
    LMDS Coalition for the Commission to clarify that it will
    conditionally license T-Mobile's renewals subject to a demonstration
    of substantial service prior to the expiration of the extended
    construction period. *See id.* at 4.

[^73]: File Nos. 0003326077; 0003325976 (filed Feb. 14, 2008), Request
    for Waiver and Extension of Time to Construct ("Clearwire Waiver
    Request").

[^74]: *See id.*

[^75]: File No. 0003298311 (filed Jan. 23, 2008), Request for Waiver of
    Buildout Deadline ("Pinnacle Waiver Request").

[^76]: *See id.* at 1.

[^77]: *See id.*

[^78]: *See id.*

[^79]: Venture Wireless, Inc., Request for Waiver and Extension of Time
    to Construct (filed Jan. 28, 2008) ("Venture Wireless Waiver
    Request") at 1; South Slope Cooperative Telephone Company, Request
    for Waiver and Extension of Time to Construct (filed Jan. 18, 2008)
    ("South Slope Waiver Request") at 1; Consolidated Telecom, Request
    for Waiver and Extension of Time to Construct (filed Jan. 30, 2008)
    ("Consolidated Telecom Waiver Request") at 1; G.W. Wireless, Inc.,
    Request for Waiver and Extension of Time to Construct (filed Jan.
    29, 2008) ("G.W. Wireless Waiver Request") at 1; IT&E Overseas,
    Inc., Request for Waiver and Extension of Time to Construct (filed
    Feb. 8, 2008) ("IT&E Waiver Request") at 1; Rainier Connect, Inc.,
    Request for Waiver and Extension of Time to Construct (filed Jan.
    28, 2008) ("Rainier Waiver Request") at 1; Townes
    Telecommunications, Inc., Request for Waiver and Extension of Time
    to Construct (filed Jan. 18, 2008) ("Townes Waiver Request") at 1;
    Webster-Calhoun Cooperative Telephone Association, Request for
    Waiver and Extension of Time to Construct (filed Jan. 18, 2008)
    ("Webster-Calhoun Waiver Request) at 1; *see also* Command Connect,
    LLC, Request for Waiver and Extension of Time to Construct (filed
    Jan. 23, 2008) at 1-2 (requesting a ten year extension because
    "prudence dictates a ten-year extension request to preclude further
    requests in view of the possibility of unforeseen delays"); Cable
    and Communications Corporation, Request for Waiver and Extension of
    Time (filed Mar. 10, 2008) at 1-2 (same).

[^80]: *See, e.g.,* Venture Wireless Waiver Request at 1. Specifically,
    they contend that the only equipment available to "small/rural
    licensees is limited to point-to-point backhaul transmitters that
    are only suitable for support of wireless systems that serve
    relatively closely spaced base stations, and first generation
    multipoint broadband equipment that is not mass marketed, and is not
    priced in a range that will be feasible for rural deployment." *See,
    e.g.,* Venture Wireless Waiver Request at 2-3.

[^81]: *See, e.g.,* Venture Wireless Waiver Request at 1. They note that
    "discussions with equipment manufacturers regarding the availability
    of suitable LMDS equipment indicate that there is no firm timetable
    that for the production of sufficient quantities of equipment to
    translate into reasonable prices for rural carriers and their
    customers. Venture Wireless Waiver Request at 4.

[^82]: *See, e.g.,* Venture Wireless Waiver Request at 4.

[^83]: Fleming-Mason Service Corporation, Request for Waiver and
    Extension of Time to Construct (filed Jan. 23, 2008 ("Fleming-Mason
    Waiver Request") at 1; Spectra Wave, Inc., Request for Waiver and
    Extension of Time to Construct (filed Jan. 23, 2008) ("Spectra Wave
    Waiver Request") at 1; Sycamore Telephone Company, Request for
    Waiver and Extension of Time to Construct (filed Jan. 23, 2008)
    ("Sycamore Waiver Request") at 1; Star Search Rural TV & Cellular,
    Inc., Petition for Waiver and Extension of Time to Meet the
    Substantial Service Requirements in Section 101.1011(a) of the
    Commission's Rules (filed Feb. 1, 2008) ("Star Search Waiver
    Request"); BTA Associates, LLC, Request for Waiver of Build-Out
    Deadline (filed Feb. 12, 2008) ("BTA Associates Waiver Request");
    LMDS, L.P., Petition for Waiver and Extension of Time to Construct
    (filed Mar. 17, 2008) ("LMDS L.P. Waiver Request"); Northern
    Communications, Inc., Petition for Waiver of Section 101.1011(a) of
    the Commission's Rules and Extension of Construction Deadline
    ("Northern Waiver Request").

[^84]: Fleming-Mason Waiver Request at 1.

[^85]: Star Search Waiver Request at 2.

[^86]: Star Search Waiver Request at 2.

[^87]: Northern Waiver Request at 1.

[^88]: LMDS L.P. Waiver Request at 1.

[^89]: Swayzee Telephone Company, Inc, FCC Waiver Request (filed Mar.
    17, 2008) ("Swayzee Waiver Request").

[^90]: *Id.* at 1.

[^91]: *Id.*

[^92]: *See* 47 C.F.R. § 101.1013(b).

[^93]: *See Second LMDS Report and Order,* 12 FCC Rcd at 12657 ¶ 259.
    Pursuant to 47 C.F.R. § 101.67, LMDS licenses are issued for a
    period not to exceed ten years.

[^94]: *See* 47 C.F.R. § 101.1011(a); *see also Second LMDS Report and
    Order,* 12 FCC Rcd at 12658 ¶¶ 261-262.

[^95]: *Second LMDS Report and Order,* 12 FCC Rcd at 12658 ¶ 261; *see
    also id.* 12660 ¶ 269. The Commission elaborated on what may
    constitute "substantial service" for LMDS by offering some specific
    examples, which are sometimes referred to as "safe-harbors." *See
    id.* at 12660-12661 ¶¶ 269-270.

[^96]: *Second LMDS Report and Order,* 12 FCC Rcd at 12659 ¶ 266. The
    Commission believed that adopting such a "liberal build-out
    requirement" would provide LMDS licensees with the flexibility to
    offer a range of services using the LMDS spectrum. *See id.* at
    12659 ¶ 267. The Commission also expressed concern that, "given the
    undeveloped nature of equipment for use in this band . . . strict
    construction requirements might have the effect of discouraging
    participation in the provision of services over the LMDS spectrum."
    *Id.* at 12660 ¶ 268.

[^97]: *See* 47 C.F.R. § 101.1011(a).

[^98]: 47 C.F.R. § 1.946(e)(1).

[^99]: 47 C.F.R. § 1.946(e)(2), (3).

[^100]: 47 C.F.R. § 1.925.

[^101]: *Id.; see also Northeast Cellular Telephone Co. v. FCC*, 897
    F.2d 1164, 1166 (D.C. Cir. 1990); *WAIT Radio v. FCC*, 418 F.2d 1153
    (D.C. Cir. 1969), *aff\'d*, 459 F.2d 1203 (1972), *cert. denied*,
    409 U.S. 1027 (1972); 47 C.F.R. § 1.3.

[^102]: The 700 MHz Band licenses may be used for flexible fixed,
    mobile, and broadcast uses, including fixed and mobile wireless
    commercial services (including FDD-based and TDD-based services);
    fixed and mobile wireless uses for private, internal radio needs;
    and mobile and other digital new broadcast operations. These uses
    may include two-way interactive, cellular, and mobile television
    broadcasting services.

[^103]: Advanced Wireless Service (AWS) is a collective term for new and
    innovative fixed and mobile terrestrial wireless applications using
    bandwidth that is sufficient for the provision of a variety of
    applications, including those using voice and data (such as Internet
    browsing, message services, and full-motion video) content. The
    services ultimately provided by AWS licensees are only limited by
    the fixed and mobile designation of the spectrum we allocate for AWS
    and the service rules we ultimately adopt for the bands.

[^104]: *See, e.g.,* Clearwire Waiver Request at 1 (stating that it
    intends to utilize this spectrum for backhaul purposes); T-Mobile
    Waiver Request at 2 (*citing* FWCC Comments at 2) (stating that the
    rollout of 3G and 4G services as well as the deployment of services
    in the 700 MHz band will stimulate the market for wireless broadband
    and create demand for LMDS frequencies to provide broadband backhaul
    services); Rural LMDS Group Reply Comments at 2 (stating that
    additional time is required in order to allow for the development
    and deployment of affordable point-to-multipoint equipment capable
    of providing advanced broadband services over their licensed LMDS
    frequencies); Venture Wireless Waiver Request at 2-7 (same).

[^105]: *See*, *e.g.*, Wireless Telecommunications Bureau Grants
    Advanced Wireless Services Licenses, *Public Notice*, 22 FCC Rcd
    7293 (WTB 2007).

[^106]: *See* Auction of 700 MHz Band Licenses Closes, *Public Notice*,
    DA 08-595 (WTB rel. Mar. 20, 2008).

[^107]: Licensees in the Lower 700 MHz A, B, and E Blocks and in the
    Upper 700 MHz C Block must meet their first buildout requirement by
    February 17, 2013 (assuming their licenses are granted before
    February 17, 2009). *See* 47 C.F.R. § 27.14(g), (h). In addition, we
    anticipate that AWS-1 service will be rolled out in a number of
    markets over the next several years as federal incumbents are
    relocated. For more information on the relocation, see
    http://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm.

[^108]: 47 C.F.R. § 101.1011(a).

[^109]: 47 C.F.R. § 101.1011.

[^110]: Licenses were awarded on a rolling basis with a license term of
    ten years from the date of grant. *See* *Second LMDS Report and
    Order*, 12 FCC Rcd at 12657 ¶ 259. The first LMDS auction closed on
    March 25, 1998 with 864 licenses being won*. See Auction 17 Closing
    PN*, 13 FCC Rcd at 18217. In the second LMDS auction, which closed
    on May 12, 1999, 161 licenses were awarded to winning bidders. *See
    Auction 23 Closing PN*, 14 FCC Rcd at 8543.

[^111]: *See Second LMDS Report and Order,* 12 FCC Rcd at 12659 ¶ 256.

[^112]: The *BROADWAN Report* may be accessed at
    http://www.telenor.no/broadwan/.

[^113]: Rural LMDS Group Waiver Request at 4 (*citing BROADWAN Report*
    at Appendix 1); *see also, e.g.,* Venture Wireless Waiver Request at
    4.

[^114]: *See* discussion *infra* at n.29. The *BROADWAN Report* is part
    of a project with the following goals: development of an economical
    realistic network architecture for the provision of broadband
    services for all citizens in Europe; positioning of European
    industry in the lead for next generation broadband fixed wireless
    access (BFWA) solutions; and motivating advanced utilization of
    broadband services at all levels of society by performing
    demonstrations and trials in some rural areas. *BROADWAN Report* at
    2.

[^115]: *BROADWAN Report* at Appendix 1 at 97.

[^116]: *See BROADWAN Report* at Appendix 1. Moreover, the *BROADWAN
    Report* states that those entities participating in the project
    employ new technology deployments as and when they become
    technically and financially viable and not that any particular
    technology will be unavailable for another ten years. *Id.* In this
    respect, we note that the LMDS Coalition also discussed the
    *BROADWAN Report* in more detail without contending that the
    findings of the *BROADWAN Report* support a ten-year extension of
    LMDS construction deadlines. *See, e.g.,* LMDS Coalition Waiver
    Request at 10-11.

[^117]: *See BROADWAN Report*.

[^118]: *See, e.g.,* LMDS Coalition Waiver Request at 9-10.

[^119]: *See, e.g., October Letter* at 2; T-Mobile Waiver Request at 4;
    *see also* LMDS L.P. Waiver Request at 14 (requesting that the
    Commission should either (a) extend the existing license terms to
    match an extended construction time-frame or (b) formally specify
    that licensees who are challenged at renewal will be permitted to
    utilize all construction efforts taken within the extended
    construction period in demonstrating their right to an expectancy of
    renewal).

[^120]: In fact, renewal applications may not be filed until ninety days
    prior to license expiration. *See* 47 C.F.R. § 1.949. Moreover,
    pursuant to 47 C.F.R. § 101.67, LMDS licenses are issued for a
    period not to exceed ten years. LMDS, L.P. did not seek a waiver of
    47 C.F.R. § 101.67, and we do not find that it would be in the
    public interest or consistent with precedent to extend the license
    term.

[^121]: 47 C.F.R. § 1.949(a). We further remind licensees that section
    1.946 of the Commission's rules provides that "If a licensee fails
    to commence service or operations by the expiration of its
    construction period or to meet its coverage or substantial service
    obligations by the expiration of its coverage period, its
    authorization terminates automatically, without specific Commission
    action, on the date the construction or coverage period expires." 47
    C.F.R. § 1.946(c).