**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Conditional     | *  | File No. 2497-CM-P-83        |
| License                          | *) |                              |
|                                  | ** |                              |
| MMDS, INCORPORATED               |    |                              |
|                                  | *  |                              |
| Multichannel Multipoint          | *) |                              |
| Distribution Service             | ** |                              |
|                                  |    |                              |
| Station WHT709, Birmingham,      | *  |                              |
| Alabama                          | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

# MEMORANDUM OPINION AND ORDER {#memorandum-opinion-and-order .unnumbered}

**Adopted: July 15, 2003 Released: July 17, 2003**

By the Commission:

# introduction

1.  On September 8, 1993, MMDS, Incorporated (MMDS, Inc.) filed an
    application for review[^1] of the August 9, 1993 decision of the
    Domestic Facilities Division of the former Common Carrier Bureau
    (Division). The Division's decision[^2] denied MMDS, Inc.'s petition
    for reconsideration of the cancellation of its May 14, 1992,
    conditional license for Multichannel Multipoint Distribution Service
    Station WHT709, Birmingham, Alabama. For the reasons discussed
    below, we deny MMDS, Inc.'s Application for Review.

# Background

2.  On May 14, 1992, MMDS, Inc. was granted a conditional license to
    operate Station WHT709 on the E-group channels in Birmingham,
    Alabama.[^3] The authorization contained three conditions that MMDS,
    Inc. had to satisfy before construction commencement and no later
    than August 15, 1992.[^4]

3.  The first condition required MMDS, Inc. to file an analysis
    demonstrating a lack of harmful interference for each ITFS licensee
    or construction permittee with a transmitter within fifty miles of
    MMDS, Inc.'s proposed transmitter site together with a request for
    declaratory ruling.[^5] MMDS, Inc. had to serve the interference
    analysis and request for declaratory ruling on the pertinent ITFS
    licensee before filing it at the Commission.[^6] In the alternative,
    MMDS, Inc. could file a consent statement by the pertinent ITFS
    licensee or permittee.[^7] The second condition required MMDS, Inc.
    to file a written description of emergency repair notification
    procedures by customers to the local maintenance center (location
    and telephone number)/or person responsible for the technical
    operation and the average repair response time.[^8] Finally, MMDS,
    Inc. had to file a fully executed financial certification.[^9] MMDS,
    Inc.'s failure to comply with the conditions would result in
    automatic forfeiture of this authorization on August 16, 1992.[^10]

4.  The Birmingham Board of Education (Board) is a grandfathered
    Instructional Television Fixed Service (ITFS) licensee on the
    E-group channels in Birmingham, Alabama. It operates Station
    KLC77,[^11] broadcasting educational programming to approximately
    ninety schools, five days a week.[^12] The Board uses an
    omni-directional transmitter on the E-group channels to transmit to
    school sites.[^13]

5.  On August 14, 1992, MMDS, Inc. filed documentation entitled
    "Compliance with Conditional License.[^14] This documentation
    contained three attachments: (1) Attachment 1 - Statement Concerning
    Co-Channel Interference (Co-Channel Interference Statement); (2)
    Attachment 2 - A written description of emergency repair procedures
    as well as the name of the person responsible for local maintenance;
    and (3) Attachment 3 - A fully executed financial
    certification.[^15] In its Co-Channel Interference Statement, MMDS,
    Inc. proposed to operate Station WHT709 in an omni-directional
    manner providing wireless cable services in Birmingham.[^16] MMDS,
    Inc. further stated that "\[t\]he omni-directional operation of the
    ITFS station and the MMDS station would result in mutually
    destructive interference."[^17] Consequently, MMDS, Inc. stated, it
    had begun preparation of an application for involuntary relocation
    of the Board's ITFS facilities to "suitable substitute
    spectrum."[^18] None of the documents MMDS, Inc. submitted contained
    either an analysis, which demonstrated a lack of harmful
    interference to the Board's station, or the Board's consent to MMDS,
    Inc.'s operation of Station WHT709.

6.  On October 7, 1992, the Board filed a letter in which it argued that
    MMDS, Inc's August 14, 1992 documentation did not meet the
    requirements contained in the conditional license to operate Station
    WHT709. Specifically, the Board contended that the submission was
    defective because it did not contain an analysis demonstrating a
    lack of harmful interference to the Board's station or a consent
    statement from the Board.[^19] The Board further argued that any
    reliance by MMDS, Inc. "on the rules for involuntary migration of
    point-to-point facilities of an ITFS . . . \[station was\]
    completely misplaced because the Board does not utilize the E group
    frequencies sought by MMDS \[Inc.\] for point-to-point
    broadcasts."[^20] On October 28, 1992, the Division released a
    *Public Notice* in which it gave notice that MMDS, Inc.
    automatically forfeited its conditional license for Station WHT709
    for failure to comply with the conditional license terms.

7.  On November 30, 1992, MMDS, Inc. requested reconsideration of the
    Division's October 28, 1992 Public Notice, seeking reinstatement of
    its conditional license to operate Station WHT709.[^21] MMDS, Inc.
    maintained that its August 14, 1992 documentation was not associated
    with its application and therefore the Division did not consider it
    before canceling MMDS, Inc.'s conditional license to operate Station
    WHT709.[^22] Moreover, MMDS, Inc. argued that its August 14, 1992
    documentation satisfied the conditions of its authorization to
    operate Station WHT709.[^23] MMDS, Inc. also argued that it had a
    year from the date of its conditional license in which to either
    obtain the Board's concurrence for voluntary migration from the
    E-group channels or initiate the involuntary migration provisions of
    the rules.[^24]

8.  On August 9, 1993, the Division denied MMDS, Inc.'s petition for
    reconsideration. The Division found that MMDS, Inc. did not file the
    required non-interference analysis or a petition for declaratory
    ruling.[^25] In this connection, the Division noted that MMDS Inc.'s
    August 14, 1992 documentation discussed interference between the two
    stations, but did not demonstrate a lack of interference to the
    Board's station from MMDS, Inc.'s station.[^26] The Division also
    noted that MMDS, Inc. did not file a modification application
    requesting a change of the due date for filing the specific
    documentation required by the conditional license.[^27] Moreover,
    the Division found that MMDS, Inc. was not authorized under Sections
    74.986 or 74.902(h) of the Commission's Rules to require the Board
    to migrate involuntarily to another frequency.[^28] On September 8,
    1993, MMDS, Inc. filed its AFR.

# discussion

9.  In its AFR, MMDS, Inc. contends that the Division's decision was
    procedurally and substantively flawed. MMDS, Inc. raises four
    reasons to reinstate its license. First, MMDS, Inc. argues that the
    Division wrongfully cancelled MMDS Inc.'s conditional license to
    operate Station WHT709 because the Division misplaced MMDS, Inc.'s
    August 14, 1992 documentation, which led the Division to conclude
    that MMDS, Inc. had not met the specific conditions set forth on the
    license.[^29] Second, MMDS, Inc. asserts that its August 14, 1992
    documentation satisfies the conditions on the license for Station
    WHT709. Third, MMDS, Inc. maintains that it detrimentally relied
    upon advice of the Division staff and did not request additional
    time to submit its documentation. Finally, MMDS, Inc. avers that it
    can force the Board's Station KLC77 to migrate to another frequency
    if interference considerations so require pursuant to Section 74.980
    of the Commission's Rules.[^30]

10. We have reviewed the AFR and find that the Division properly decided
    the matters raised. We note, as an initial matter, that assuming
    arguendo that the Division's original cancellation of MMDS, Inc.'s
    conditional license for Station WHT709 occurred because its August
    14, 1992 documentation was misplaced, we find that action would have
    been erroneous. However, in this instance, such error would now be
    deemed harmless because the Division has reviewed and acted on the
    substance of the information contained in the August 14, 1992
    submission. Specifically, on reconsideration, the Division
    considered the August 14, 1992 documentation and concluded that such
    documentation was insufficient to meet the terms of the conditional
    license.[^31] Therefore, the *MMDS Order* concluded that MMDS, Inc.
    automatically forfeited the license for Station WHT709 because MMDS,
    Inc. had failed to comply with the express conditions on its
    license, not because of its failure to make any filing.[^32]

11. The *MMDS Order* correctly states that when MMDS, Inc. accepted its
    conditional license, it agreed to be subject to those
    conditions.[^33] In *P&R Temmer v. FCC*,[^34] the Court noted that,
    "\[an\] FCC licensee takes its license subject to the conditions
    imposed on its use. These conditions may be contained in both the
    Commission\'s regulations and in the license. Acceptance of a
    license constitutes accession to all such conditions." By accepting
    its license without protesting the special condition placed on the
    license, MMDS, Inc. agreed to be bound by the special
    condition.[^35] Accordingly, MMDS, Inc. was required to submit by
    August 15, 1992, either (a) "an analysis demonstrating a lack of
    harmful interference for each ITFS licensee . . . with a transmitter
    site within 50 miles of the proposed MMDS transmitter site, together
    with a request for declaratory ruling," or (2) a consent statement
    by the ITFS licensee."[^36] However, the record of this proceeding
    contains a statement by MMDS, Inc. that its proposed operation would
    cause interference to the Board's station and that it did not have
    the Board's consent.[^37] Accordingly, by the express terms of its
    conditional license, MMDS, Inc. automatically forfeited its license
    on August 16, 1992.

12. Additionally, MMDS, Inc. asserts that contrary to the Division's
    statement that it could have filed an application to modify the
    conditional license to extend the deadline for submitting the
    necessary documentation,[^38] Division staff indicated that it would
    not grant extensions of time to file the documentation.[^39] As a
    result, MMDS, Inc. argues that it believed the Division staff would
    not grant a modification of the license to extend the deadline.[^40]
    This argument is immaterial because it was incumbent upon MMDS, Inc.
    to comply with the terms of its conditional license or to seek
    additional time to comply with those conditions. MMDS, Inc.'s
    unsupported claim that it received informal staff advice that an
    extension of time would not be granted did not relieve it of that
    duty.[^41]

13. Finally, MMDS, Inc. argues that it should have had the option of
    submitting an application to modify involuntarily the Board's
    license to eliminate the interference problem.[^42] We need not
    decide whether MMDS, Inc. could have filed an application to modify
    involuntarily the Board's license because MMDS, Inc. did not file
    such an application before its license automatically forfeited.
    Assuming that MMDS, Inc. could have filed an involuntary
    modification application consistent with the Commission's Rules, it
    could have filed such an application as soon as it received its
    conditional license on May 14, 1992.[^43] MMDS, Inc. had explicit
    notice that it would automatically forfeit its license on August 16,
    1992, if it did not comply with the express terms of its conditional
    license or seek modification of those conditions. Clearly, if MMDS,
    Inc. intended to modify involuntarily the Board's license, it should
    have filed such an application before its license was automatically
    forfeited. Once MMDS, Inc. automatically forfeited its license, it
    had no standing to seek modification of the Board's operations.[^44]
    Thus, the preparation and submission of a modification application
    after August 15, 1992, was not relevant to the conditions of the
    authorization and of no utility on import as of August 16, 1992.

# conclusion AND ORDERING CLAUSE

14. MMDS, Inc. received a conditional license that required it to comply
    with certain terms by August 15, 1992. The conditional license
    explicitly stated that if MMDS, Inc. did not comply with such terms,
    the conditional license of MMDS, Inc. would automatically forfeit on
    August 16, 1992. MMDS, Inc. did not comply with the requirement that
    it submit either an interference study showing a lack of harmful
    interference study to the Board's station and a petition for
    declaratory ruling or a consent statement from the Board by August
    15, 1992. Accordingly, we affirm the Division's conclusion that the
    conditional license for Station WHT709 was automatically forfeited
    on August 16, 1992.

15. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 5(c)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    155(c), and Section 1.115 of the Commission's Rules, 47 C.F.R. §
    1.115, the Application for Review filed by MMDS, Incorporated on
    September 8, 1993 IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: Application for Review (filed Sept. 8, 1993) (AFR).

[^2]: MMDS, Incorporated, *Order on Reconsideration*, 8 FCC Rcd 5440
    (CCB DFD 1993) (*MMDS Order*).

[^3]: Radio Station Authorization, Call Sign -- WHT709, File No.
    2497-CM-P-83 (Authorization). The E channel group consists of the
    frequencies 2596-2602, 2608-2614, 2620-2626, and 2632-2638 MHz. 47
    C.F.R. § 21.901(b)(4).

[^4]: *Id*.

[^5]: *Id*.

[^6]: *Id*.

[^7]: *Id*.

[^8]: *Id*.

[^9]: *Id*.

[^10]: *Id*.

[^11]: *Id*. at 5440 ¶ 2.

[^12]: Letter from Gaile Pugh Gratton, Lange, Simpson, Robinson &
    Somerville to Donna R. Searcy, Secretary, Federal Communications
    Commission (dated Oct. 7, 1992) (Gratton Letter).

[^13]: *Id*. at 2.

[^14]: MMDS, Inc., Compliance with Conditional Construction Permit
    (E-Group) Birmingham, Alabama, Compliance with Conditional License,
    Aug. 14, 1992.

[^15]: *Id*.

[^16]: Statement Concerning Co-Channel ITFS Interference (filed Aug. 14,
    1992) (Co-Channel Interference Statement) at 1.

[^17]: *Id*.

[^18]: *Id*. at 2.

[^19]: Gratton Letter.

[^20]: *Id.*

[^21]: MMDS, Inc., Petition for Reconsideration (filed Nov. 30, 1992)
    (Petition).

[^22]: *Id.* at 1. *See also*, MMDS, Inc., Supplement to Petition for
    Reconsideration (filed Dec. 18, 1992) (Supplement).

[^23]: Petition at 1.

[^24]: MMDS, Inc., Supplement at 4.

[^25]: *MMDS Order*, 8 FCC Rcd at 5440 ¶¶ 1,5.

[^26]: *Id*.

[^27]: *MMDS Order*, 8 FCC Rcd at 5440 ¶ 5.

[^28]: *Id*. at 5440-41 ¶ 6.

[^29]: AFR at 6-7.

[^30]: AFR at 10-11.

[^31]: *See Greater Boston Television, Inc. v. FCC*, 444 F.2d 841, 851
    (D.C. Cir. 1970), *cert. denied*, 403 U.S. 923 (1971) (a court will
    not reverse a decision because of harmless errors).

[^32]: *MMDS Order*, 8 FCC Rcd at 5440 ¶ 5.

[^33]: *Id.*

[^34]: 743 F.2d 918, 928 (D.C. Cir. 1984).

[^35]: 47 C.F.R. § 1.110.

[^36]: *See* Conditional License.

[^37]: MMDS Statement at 1.

[^38]: *See MMDS* Order, 8 FCC Rcd 5440 at ¶ 5.

[^39]: AFR at 8.

[^40]: *Id*.

[^41]: *See* Daniel R. Goodman, Receiver, Dr. Robert Chan, Petition for
    Waiver of Sections 90.633(c) and 1.1102 of the Commission\'s Rules,
    *Memorandum Opinion and Order on Reconsideration*, 13 FCC Rcd 21944,
    21972-73 ¶ 53 (1998) ("Erroneous advice received from a government
    employee is insufficient \[to warrant estoppel against the
    government\], particularly when the relief requested would be
    contrary to an applicable statute or rule.")

[^42]: *Id.* at 9; *citing* Communications Tech Management of Texas,
    Inc., *Memorandum Opinion and Order*, 7 FCC Rcd 7256 (CCB DFD 1992).

[^43]: 47 C.F.R. § 74.986(b) (1992).

[^44]: *See* *id.* (only licensees, conditional licensees, permittees,
    or unopposed applicants have standing to seek involuntary
    modification of an ITFS license).