Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Matter of                  | *  |                              |
|                                  | *) |                              |
| ART LICENSING CORPORATION        | ** |                              |
|                                  |    |                              |
| Requests for Waiver, Extension   | *  |                              |
| of Time to Meet Coverage         | *) |                              |
| Requirements, and Extension of   | ** |                              |
| License Period                   |    |                              |
|                                  | *  |                              |
| 211 Applications for Renewal of  | *) |                              |
| License of Common Carrier        | ** |                              |
| Point-to-Point Microwave         |    |                              |
| Stations                         | *  |                              |
|                                  | *) |                              |
| 158 Notifications of Completion  | ** |                              |
| of Construction of Common        |    |                              |
| Carrier Point-to-Point Microwave | *  |                              |
| Stations                         | *) |                              |
|                                  | ** |                              |
| 352 Applications for Extension   |    |                              |
| of Time of Construct 39 GHz      | *  |                              |
| Economic Area Licenses           | *) |                              |
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+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION AND MEMORANDUM OPINION AND ORDER**

**Adopted: October 1, 2008 Released: October 2, 2008**

By the Acting Chief, Wireless Telecommunications Bureau:

# INTRODUCTION 

1.  On March 2, 2007, FiberTower Corporation (FiberTower) filed, on
    behalf of its wholly owned subsidiary, ART Licensing Corporation
    (ART Licensing), a petition for reconsideration[^1] of the action
    taken by the Broadband Division (Division) of the Wireless
    Telecommunications Bureau (Bureau) on January 31, 2007,[^2] on
    requests for relief regarding 214 Fixed Service (FS) rectangular
    service area licenses in the 38.6--40.0 GHz band (39 GHz band) [^3]
    held by ART Licensing. FiberTower also filed substantial service
    showings for all 214 of the subject licenses.[^4] In addition, on
    August 8, 2008, FiberTower filed applications to extend the deadline
    for demonstrating substantial service for each of its 352 39 GHz
    Economic Area (EA) licenses to June 1, 2012.[^5]

2.  For the reasons discussed below, we find that FiberTower is
    providing substantial service in the areas covered by 31 of the
    subject rectangular service area licenses.[^6] We dismiss the
    Petition as moot with respect to those licenses and direct
    processing of pending applications relating to those licenses. With
    respect to the remaining 183 rectangular service area licenses, we
    conclude that FiberTower has not demonstrated substantial service
    but conclude that an extension of time to demonstrate substantial
    service until June 1, 2012 is warranted.[^7] We therefore grant the
    Petition in part with respect to those licenses, reinstate the
    extension applications associated with those licenses, reject the
    requests for determination of substantial service without prejudice
    to FiberTower refiling prior to the extension date of June 1, 2012,
    and direct processing of the renewal applications associated with
    those licenses. In addition, for the reasons stated below, we
    conclude that it is in the public interest to extend the deadline
    for FiberTower to demonstrate substantial service for the 352
    subject EA licenses to June 1, 2012, and we authorize the Broadband
    Division to process those EA Extension Applications.

# BACKGROUND

3.  *39 GHz Licensing Generally*. Licensees in the 39 GHz Service are
    subject to Part 101 of the Commission's Rules.[^8] Originally,
    channels in the 39 GHz Service were licensed on a licensee-defined
    rectangular service area basis.[^9] In 1997, the Commission amended
    the rules for the 39 GHz Service to provide for licensing on a Basic
    Trading Area (BTA) basis, as well as for the use of competitive
    bidding.[^10] Subsequently, the Commission revised the rules to use
    Economic Area (EA) licensing areas, [^11] and auctioned 39 GHz
    overlay licenses on an EA basis in 2000.[^12] Pursuant to the
    Commission's Rules, 39 GHz licenses -- both rectangular service
    areas and EAs -- are issued for a period not to exceed ten
    years.[^13] With respect to renewal expectancy and performance
    requirements, 39 GHz rectangular service area and EA licensees must
    demonstrate "substantial service" in their license areas in
    connection with applications for license renewal.[^14]

4.  *ART Licensing's Rectangular Service Area Licenses.* The subject
    rectangular service area licenses were originally issued to Advanced
    Radio Telecom Corp. (ART) between August 1, 1996 and September
    24, 1997. ART, which was founded in 1993,[^15] began to sell a
    variety of Internet services to end users in Seattle, Washington,
    Portland, Oregon, and Phoenix, Arizona in 1998.[^16] In April 2001,
    ART and certain related companies filed for bankruptcy,[^17]
    subsequently emerging from bankruptcy, pursuant to Commission
    approval, with new ownership under the control of First Avenue
    Networks, Inc. (FAN).[^18] On May 14, 2006, FAN and FiberTower
    announced an agreement to merge.[^19] The companies reported that
    they operated networks to provide backhaul -- transport from cell
    site to switch -- in twelve geographic areas with more than 1,000
    sites.[^20] On August 30, 2006, pursuant to Commission approval, the
    merger was consummated.[^21] The merged company was renamed
    FiberTower Corporation (FiberTower).[^22] FiberTower uses a
    combination of radio links, fiber-optic rings, and fiber exchange
    points to provide its services.[^23] FiberTower contends that, on a
    company-wide basis, it had built 1,768 sites and had more than 1,300
    customer billing locations by the end of the third quarter of
    2006.[^24] According to FiberTower, it had master service agreements
    at that time with five of the seven largest domestic wireless
    carriers.[^25]

5.  On October 6, 2006, ART Licensing, which is the licensee of record
    and a wholly-owned subsidiary of FiberTower, filed 214 applications
    seeking waivers of Sections 1.949(b) and 101.67 of the Commission's
    Rules[^26] to extend the license periods for 214 39 GHz licenses to
    October 18, 2010.[^27] FiberTower also therein requested waivers of
    and extensions of time to comply with the substantial service
    requirements set forth in Section 101.17(a) of the Commission's
    Rules[^28] for those 214 licenses.[^29] FiberTower argued that
    extending the licenses to October 18, 2010 would serve the public
    interest because that is the date by which FiberTower must renew the
    licenses for 352 Economic Area (EA) licenses in the 39 GHz
    band.[^30] FiberTower contended that the requested extension would
    permit FiberTower to develop the majority of its 39 GHz licenses
    simultaneously, and would also allow the Commission to consider the
    substantial service showings for its rectangular service area
    licenses at the same time that it evaluates FiberTower's showings
    for its 352 EA licenses in the 39 GHz band.[^31] In the Waiver
    Request, FiberTower maintained that, while it has made efforts to
    make productive use of the licenses, it has faced insurmountable
    obstacles largely out of its control.[^32] While FiberTower conceded
    that "earlier efforts to provide substantial service were negatively
    influenced by avoidable errors,"[^33] it expressed optimism that new
    demand and equipment availability would make productive use of the
    39 GHz band feasible.[^34] FiberTower claimed that it needed a
    stable and defined date from which it may plan to meet substantial
    service obligations for the subject licenses.[^35]

6.  *Division Letter.* On January 31, 2007, the Division found that
    FiberTower's arguments failed to justify an extension of time to
    demonstrate substantial service.[^36] Although the Division found
    that FiberTower had failed to demonstrate that the requested waiver
    was warranted, on its own motion, the Division granted FiberTower a
    limited waiver of Section 1.946 of the Commission's Rules to extend,
    until August 1, 2007, the deadline by which it was required to
    demonstrate that it is providing substantial service for 162
    licenses with deadlines prior to that date.[^37] Specifically, the
    Division found that such a limited waiver would further the public
    interest "by preventing the disruption of any service that
    FiberTower may currently be providing while giving FiberTower a last
    opportunity to put these licenses to use."[^38] The Division also
    authorized processing of renewal applications for those 162
    licenses, subject to the condition that such licenses will
    automatically terminate if FiberTower fails to demonstrate
    substantial service for each license by August 1, 2007. However, the
    Division did not find that the public interest warranted extending
    waiver relief to the 52 licenses with substantial service deadlines
    beyond August 1, 2007.[^39] Rather, pursuant to the *Division
    Letter*, FiberTower was required to file a renewal application and
    demonstrate substantial service for each of the 52 licenses by the
    deadline set forth in the license terms.[^40]

7.  *FiberTower's Petition.* On March 2, 2007, FiberTower filed the
    instant Petition. FiberTower argues that it and its predecessors
    were diligent in attempting to put the spectrum to use.[^41]
    FiberTower claims that it has attempted to develop the licenses by
    making a "massive systemic investment" towards "(1) the construction
    of multiple network operational control centers; (2) equipment
    purchases on a national scale; (3) the creation of a nationwide
    warehouse and equipment distribution system; (4) efforts by the
    national engineering team to continuously pursue updated multipoint
    and enhanced performance point-to-point equipment; (4) efforts by
    the national systems team to develop multiple software systems; (5)
    the creation of national scope operations, sales, and marketing
    teams; \[and\] (6) investment in legal, regulatory and finance
    infrastructure."[^42] FiberTower contends that it and other
    licensees have faced technical issues and equipment problems that
    have thwarted the use of these licenses.[^43] FiberTower also argues
    that granting an extension only until August 1, 2007 is not in the
    public interest because it promotes defensive construction of
    spectrum solely to preserve licenses.[^44] In addition, FiberTower
    notes that it filed substantial service showings for three licenses
    that were the subject of the *Division Letter* and requests that the
    condition requiring that these stations demonstrate substantial
    service by August 1, 2007 be deleted from these licenses.[^45]

8.  On June 29, 2007, FiberTower filed a supplement to the instant
    Petition.[^46] FiberTower presents additional information in the
    Supplement concerning its efforts to develop "viable" equipment for
    the provision of service with the subject 39 GHz licenses.[^47]
    FiberTower also requests confidential treatment for the Supplement
    and for the information and exhibits attached to the
    Supplement.[^48]

9.  In addition, FiberTower has now filed substantial service showings
    for all 214 of the subject licenses. With respect to the licenses
    with renewal dates prior to August 1, 2007,[^49] FiberTower filed
    substantial service showings for Stations WPNE715, WPND676, WPND776,
    and WPNA623 as an exhibit to the renewal application of each
    station.[^50] On July 21, 2007 and August 1, 2007, FiberTower filed
    notifications of construction completion with substantial service
    showings for the remaining 158 licenses with renewal dates prior to
    August 1, 2007.[^51] Since August 1, 2007, FiberTower has submitted
    substantial service showings for the 52 subject licenses with
    expiration dates beyond August 1, 2007 as an exhibit to the renewal
    application of each station.

10. With respect to 22 of the licenses, FiberTower contends that it
    falls within the "safe harbor"[^52] because it has constructed four
    links per million population in each licensed area.[^53] In
    addition, FiberTower stated in the substantial service showings for
    eight other licenses that it would meet the safe harbor standard in
    those licensed areas by a specific date and has since amended those
    eight applications to indicate that it has.[^54] Moreover, on
    November 16, 2007, FiberTower amended the substantial service
    showing for Station WPNH555 to state that it has now met the safe
    harbor standard in that licensed area.[^55] However, with respect to
    the remaining 183 licenses, FiberTower concedes that it has not
    constructed an average of four links per million population in the
    licensed areas and therefore does not fall within the safe
    harbor.[^56] Rather, FiberTower renews arguments that it has
    satisfied the Commission's substantial service standard because it
    has invested "significant time, energy, and capital to put in place
    the systems, infrastructure, services and personnel required to
    support large-scale regional or national deployments."[^57]
    Specifically, FiberTower contends that its overall capital
    investment in its wireless network and additional antecedent
    planning, such as entering into contracts with vendors, serves the
    Commission's goal of, "promot\[ing\] investment in and rapid
    deployment of new technology and services."[^58]

11. *ART Licensing's 39 GHz EA licenses.* On August 8, 2008, FiberTower,
    on behalf of ART Licensing, filed Applications to extend the
    substantial service deadline for its 39 GHz EA licenses from October
    18, 2010 to June 1, 2012. FiberTower cites extensive efforts to
    develop its networks during the EA license terms.[^59] It also
    relies on a recent decision by the Bureau to extend the substantial
    service deadline for Local Multipoint Distribution Service (LMDS)
    licensees to June 1, 2012 and claims that FiberTower is similarly
    situated to the LMDS licensees that received an extension.[^60]
    FiberTower also cites as support a recent decision to extend the
    substantial service deadline to June 1, 2012 for 39 GHz EA licenses
    held by IDT Spectrum, LLC.[^61]

# DISCUSSION

## Substantial Service Notifications

12. Because the Petition would be moot with respect to any license for
    which FiberTower has demonstrated substantial service before the
    applicable deadline, we first examine the substantial service
    showings that FiberTower has made for each of its licenses. Pursuant
    to the Commission's Rules, 39 GHz licenses are issued for a period
    not to exceed ten years.[^62] At the end of the ten-year period, a
    licensee is required to submit an acceptable showing to the
    Commission demonstrating that it "is providing service which rises
    to the level of 'substantial'" in each area for which it holds a
    license.[^63] Licensees failing to demonstrate that they are
    providing substantial service will not have their licenses
    renewed.[^64] For the reasons explained herein, we find that
    FiberTower has demonstrated that it is providing substantial service
    in 31 licensed areas. However, with respect to the remaining 183
    licenses, we find that FiberTower has failed to demonstrate that it
    is providing substantial service in the licensed areas.

13. FiberTower contends that it falls within the Commission's safe
    harbor because it has constructed four links per million population
    in 31 licensed areas. We agree with FiberTower that it falls within
    the safe harbor for 22 of the subject licenses areas because it
    timely constructed four links per million population in each
    licensed area.[^65] In another 9 licensed areas, FiberTower amended
    its applications to demonstrate that it had met the safe harbor
    within 60 days of the applicable construction deadline. [^66] With
    respect to these nine licenses, we find that FiberTower's diligence
    in moving forward to complete construction justifies granting a
    short extension of the construction deadline to allow consideration
    of the substantial service showings for these licenses. Accordingly,
    on our own motion, we will grant FiberTower a 60-day extension of
    time to meet the construction deadlines in each of those licensed
    areas.[^67] With respect to the extended deadline, we conclude that
    FiberTower has met the four-links per million safe harbor and has
    therefore demonstrated substantial service. We therefore direct
    acceptance of the construction notifications and processing of the
    associated renewal applications for those 31 stations.[^68] We
    dismiss the Petition as moot with respect to those 31 licenses
    because FiberTower has complied with its substantial service
    deadlines for those licenses.

14. With respect to the remaining 183 licenses, FiberTower has failed to
    demonstrate that it "is providing service which rises to the level
    of 'substantial.'"[^69] Indeed, FiberTower concedes that it has not
    constructed "any 39 GHz links physically operating in" these 183
    licensed areas.[^70] Rather, FiberTower asks the Commission to find
    that it is providing substantial service in each of these licensed
    areas based on non-license-specific references to the "significant
    time, energy, and capital to put in place the systems,
    infrastructure, services and personnel required to support
    large-scale regional or national deployments."[^71] Specifically,
    FiberTower relies on the following activities: (1) establishing
    network operations centers; (2) establishing back office systems to
    support national operations; (3) establishing billing systems; (4)
    hiring engineers and developing engineering systems; (5) developing
    a customized software system for design management, customer
    contract registration, opportunity analysis and network forecasting;
    and (6) establishing relationships with contractors, tower
    operators, and mobile carriers.[^72] We conclude that these
    activities cannot support a finding of substantial service in the
    absence of any actual operation of the stations.

15. Although FiberTower is correct that the Commission adopted the
    substantial service requirement as the performance standard for 39
    GHz licensees to accord licensees flexibility in designing their
    systems and offering a variety of services to the public, FiberTower
    ignores the Commission's counterbalancing purpose of providing "a
    clear and expeditious accounting of spectrum use by licensees to
    ensure that service is indeed being provided to the public." The
    record supports our finding that FiberTower is not providing any
    service in these 183 licensed areas.[^73]

16. We find that FiberTower's reliance on *Microwave Renewals, Pacific
    Bell,* and *Winstar* is misplaced.[^74] In *Microwave Renewals,* the
    former Public Safety and Private Wireless Division (PSPWD) of the
    Bureau considered the substantial service showings for 102 39 GHz
    licenses "in light of" the fact that the "licensees actually had
    less than one-third of a full ten-year license term to satisfy the
    substantial service requirement."[^75] PSWPD found that the
    licensees were using the spectrum to provide service to the public,
    either by operating at 50% or better of the Commission safe harbor
    or by demonstrating significant construction (*i.e.*, the
    construction of more than ten links in the service area).[^76]
    Similarly, in *Pacific Bell*,[^77] a licensee demonstrated the
    provision of substantial service by constructing five links in a
    licensed area that had a population of approximately 2 million in
    the 34 months that elapsed since the Commission adopted and applied
    the substantial service requirement to incumbent 39 GHz licensees.
    Finally, in *Winstar*,[^78] PSPWD found that the licensee may
    adequately demonstrate "that it is providing substantial service" in
    each licensed area if it constructed at least one link because the
    "sliver areas in question have populations far less than a quarter
    million." While each decision rested on specific facts, none
    involved a finding of substantial service where, in fact, no
    construction or operation was undertaken in the licensed area during
    the license term.  We do not believe that a finding of substantial
    service can be made without a demonstration of actual construction
    or operation in the licensed area during the license term. As noted
    above, we find no such evidence in the record with respect to 183 of
    the subject rectangular service area licenses**.**  We therefore
    turn to the Petition with respect to those 183 licenses.

## Extension Requests

17. 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."[^79] 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.[^80]
    Section 1.925 of the Commission's Rules[^81] 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.[^82]

18. Initially, we agree with the *Division Letter* that the
    "technological and business issues" that FiberTower claims have
    hindered the provision of substantial service within the 39 GHz
    band[^83] are not those that warrant an extension of time or a
    waiver. In particular, the *Division Letter* correctly found that
    the record in this proceeding does not demonstrate that FiberTower
    faces the "regulatory uncertainty" or the extensive technical and
    equipment challenges faced by WCS licensees.[^84] Moreover, Section
    1.946(e)(2) of the Commission's Rules[^85] states that an extension
    will not be granted if the delays are caused by a failure to obtain
    financing. FiberTower and its predecessors exercised their own
    business judgment in acquiring their 39 GHz holdings. We agree with
    the Division that FiberTower's realization that ART's prior business
    plans were not commercially viable was not a factor outside of its
    control that would justify an extension of time to construct.[^86]

19. We also find that FiberTower's reliance on the *WCS Extension
    Order,*[^87] *FCI900,*[^88] and the *220 MHz Extension Order*[^89]
    is misplaced. In the *WCS Extension Order*, the Bureau found that,
    in the Wireless Communications Service (WCS), limited deployment
    attempts using available equipment had been marred by technical
    problems or proved to be economically infeasible.[^90] Moreover, the
    Bureau was "persuaded . . . that relatively restrictive
    \[out-of-band emission (OOBE)\] limits may have impeded the
    development of WCS equipment and have contributed to the unique
    circumstances of the band."[^91] The Bureau therefore concluded that
    "the WCS licensees have demonstrated that they face factors beyond
    their control that have limited their options in providing
    service...."[^92] The *Division Letter* correctly found that the
    record in this proceeding does not demonstrate that FiberTower faces
    the "regulatory uncertainty" or the extensive technical and
    equipment challenges faced by WCS licensees.[^93]

20. We conclude, however, that it would be in the public interest to
    grant an extension of time to demonstrate substantial service until
    June 1, 2012 for the 183 rectangular service area licenses that have
    not yet demonstrated substantial service, as well as the subject 352
    EA licenses. As FiberTower notes, the 39 GHz band has the potential
    to serve as a backhaul solution for licensees in the 700 MHz
    Band,[^94] the Advanced Wireless Services (AWS-1),[^95] and the
    Broadband Radio Service/Educational Broadband Service
    (BRS/EBS).[^96] We note that the Commission has issued licenses for
    the AWS-1 band in the past 18 months[^97] and recently has completed
    an auction for the 700 MHz Band.[^98] We anticipate that, in the
    next several years, services in these bands will develop
    robustly,[^99] along with other mobile and fixed wireless broadband
    services. In the case of LMDS, the Bureau recently concluded that it
    would be in the public interest to give LMDS licensees 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."[^100]
    FiberTower has demonstrated that its 39 GHz licenses are similarly
    enough situated to LMDS that it would be appropriate to grant
    similar relief for its 39 GHz licenses.

21. Under those circumstances, we determine that strict enforcement of
    Section 101.17 of the Commission's Rules[^101] would not serve the
    rule's underlying purpose, as it would tend to slow, rather than
    accelerate, service deployment. We believe the public interest would
    best be served by granting FiberTower until June 1, 2012 to
    demonstrate substantial service for its 183 rectangular service area
    licenses for which it has not yet demonstrated substantial service,
    as well as for its 352 EA licenses. Accordingly, we grant
    FiberTower's petition for reconsideration in part, reinstate their
    applications for extension of time with respect to the 183 licenses
    listed in Appendix B, and direct the Division to extend the
    substantial service requirement under Section 101.17 of the
    Commission's Rules[^102] for those licenses listed in Appendix B
    until June 1, 2012. We direct the Division to reinstate the
    extension applications filed for those stations and process the
    extension applications and associated renewal applications. We also
    direct the Division to process the EA Extension Applications set
    forth in Appendix C.

# CONCLUSION AND ORDERING CLAUSES

22. We find that FiberTower has demonstrated substantial service for 31
    of its licenses, dismiss the Petition as moot with respect to those
    licenses, and direct processing of the renewal applications and
    construction notifications associated with those 31 licenses. With
    respect to the remaining 183 licenses addressed by the *Division
    Letter*, we grant the Petition in part and extend the deadline for
    FiberTower to demonstrate substantial service to June 1, 2012.
    Finally, we find it is in the public interest to extend the
    substantial service deadline for FiberTower's 39 GHz EA licenses to
    June 1, 2012 and direct the Division to process those applications.

23. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and
    Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the
    Petition for Reconsideration and Request for Clarification filed on
    March 2, 2007 by FiberTower Corporation, on behalf of its wholly
    owned subsidiary, ART Licensing Corporation, IS DISMISSED IN PART,
    GRANTED IN PART, and DENIED IN PART.

24. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and Section
    1.106(f) of the Commission's Rules, 47 C.F.R. § 1.106(f), the
    Information Regarding Petition for Reconsideration and Request for
    Clarification filed on June 29, 2007 by FiberTower Corporation IS
    DISMISSED.

25. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.946 and 101.17(b) of the Commission's Rules, 47
    C.F.R. §§ 1.946, 101.17(b), that the Broadband Division of the
    Wireless Telecommunications Bureau SHALL REINSTATE the applications
    for extension of time to demonstrate substantial service filed by
    FiberTower Corporation listed in Appendix B and SHALL PROCESS those
    applications in accordance with this *Order on Reconsideration and
    Memorandum Opinion and Order*.

26. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.946 and 1.955(a)(2) of the Commission's Rules, 47
    C.F.R. §§ 1.946, 1.955(a)(2), that the requests for findings of
    substantial service made by FiberTower Corporation ARE GRANTED with
    respect to those licenses listed in Appendix A and ARE DENIED with
    respect to the licenses listed in Appendix B.

27. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.946(d) and 101.17(b) of the Commission's Rules, 47
    C.F.R. §§ 1.946(d), 101.17(b), that the Broadband Division of the
    Wireless Telecommunications Bureau SHALL PROCESS the applications
    for notifications of completion of construction filed by FiberTower
    Corporation listed in Appendix A in accordance with this *Order on
    Reconsideration and Memorandum Opinion and Order*.

28. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.949 and 101.17(b) of the Commission's Rules, 47
    C.F.R. §§ 1.949(b), 101.17(b), that the Broadband Division of the
    Wireless Telecommunications Bureau SHALL PROCESS the applications
    for renewal of license filed by FiberTower Corporation listed in
    Appendices A and B in accordance with this *Order on Reconsideration
    and Memorandum Opinion and Order*.

29. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.946(d) and 101.17(b) of the Commission's Rules, 47
    C.F.R. §§ 1.946(d), 101.17(b), that the applications for
    notifications of completion of construction filed by FiberTower
    Corporation listed in Appendix B ARE DENIED.

30. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Sections 1.946 and 101.17(b) of the Commission's Rules, 47
    C.F.R. §§ 1.946, 101.17(b), that the Broadband Division of the
    Wireless Telecommunications Bureau shall process the applications
    for extension of time to demonstrate substantial service listed in
    Appendix C in accordance with this *Order on Reconsideration and
    Memorandum Opinion and Order*.

31. These actions are taken under delegated authority pursuant to
    Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§
    0.131, 0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> James D. Schlichting
>
> Acting Chief, Wireless Telecommunications Bureau

[^1]: FiberTower Corporation, Petition for Reconsideration and Request
    for Clarification (filed Mar. 2, 2007) (Petition).

[^2]: Letter from Joel D. Taubenblatt, Chief, Broadband Division,
    Wireless Telecommunications Bureau, FCC, to Philip L. Verveer, Esq.,
    Wilkie Farr and Gallagher, LLP, dated January 31, 2007 (*Division
    Letter*).

[^3]: The 214 applications at issue are hereinafter collectively
    referred to as "Extension Applications."

[^4]: The attached Appendices to this *Order on Reconsideration and
    Memorandum Opinion and Order* list the licenses in question and the
    renewal applications and/or construction notifications pending for
    those stations.

[^5]: The applications and call signs at issue are listed in Appendix C.
    The applications will be collectively referred to as the EA
    Extension Applications.

[^6]: The licenses in question, as well as the associated renewal
    applications and construction notifications, are listed in Appendix
    A.

[^7]: The licenses in question, as well as the associated renewal
    applications and extension applications, are listed in Appendix B.

[^8]: 47 C.F.R. Part 101.

[^9]: *See* 47 C.F.R. § 101.147(u). Rectangular service area licenses in
    the 39 GHz Service are also referred to as incumbent licenses.

[^10]: Amendment of the Commission's Rules Regarding the 37.0 -- 38.6
    GHz and 38.6 -- 40 GHz Bands, *Report and Order and Second Notice of
    Proposed Rulemaking*, ET Docket No. 95-183, 12 FCC Rcd 18600 (1997)
    (*39 GHz R&O*).

[^11]: Amendment of the Commission's Rules Regarding the 37.0 -- 38.6
    GHz and 38.6 -- 40 GHz Bands, *Memorandum Opinion and Order*, ET
    Docket No. 95-183, 14 FCC Rcd 12428, 12,452-12,453 ¶ 46 (1999) (*39
    GHz MO&O*).

[^12]: *See* 39 GHz Band Auction Closes, *Public Notice*, 15 FCC Rcd
    13648 (WTB 2000).

[^13]: 47 C.F.R. § 101.67.

[^14]: *See* *39 GHz R&O,* 12 FCC Rcd at 18626 ¶ 49. *See also* 47
    C.F.R. § 101.17.

[^15]: Waiver Request at 4.

[^16]: Petition at 7-8.

[^17]: *See* File No. 0000623492, Description of Transaction,
    Qualifications of Transferee & Public Interest at 1.

[^18]: *See* File No. 0000720210 (filed Jan. 3, 2002, accepted Jan. 4,
    2002).

[^19]: *See* File No. 0002619531, Amended Description of the Proposed
    Transactions and Public Interest Statement (filed June 21, 2006) at
    3.

[^20]: *Id.*

[^21]: *See* File No. 0002731976 (filed Aug. 31, 2006, accepted Sep. 1,
    2006).

[^22]: *See* File No. 0002619531, Amended Description of the Proposed
    Transactions and Public Interest Statement (filed June 21, 2006) at
    2.

[^23]: Petition at 10.

[^24]: *Id*. Unless noted in the substantial service showings discussed
    below, FiberTower does not claim that any of the referenced sites
    were constructed for the operation of the subject licenses,

[^25]: *See Id* (estimating the expected contract value at \$300
    million).

[^26]: 47 C.F.R. §§ 1.949(b), 101.67.

[^27]: *See* Extension Applications, Request for Waiver, Extension of
    Time to Meet Coverage Requirements, and Extension of License Period
    (filed Oct. 6, 2006) (Waiver Request). Although ART Licensing is the
    licensee of record for the subject stations, FiberTower filed the
    Waiver Request and the instant Petition on behalf of ART Licensing.
    Because the Waiver Request and the instant Petition generally
    discuss the actions of FiberTower to support the requested relief,
    we herein also generally refer to FiberTower except in those
    instances where the Waiver Request or the instant Petition
    specifically reference ART Licensing.

[^28]: 47 C.F.R. § 101.17(a).

[^29]: Extension Applications, Waiver Request.

[^30]: *See* Waiver Request at 2.

[^31]: *See Id.* at 2, 7.

[^32]: *Id.* at 9.

[^33]: *Id.* at 3-4.

[^34]: *Id.* at 4-6.

[^35]: *Id.* at 7.

[^36]: *See Division Letter* at 3.

[^37]: *See Division Letter* at 4; Appendix B (listing the 162 licenses
    for which FiberTower was granted extensions of time). According to
    the Commission's records, new authorizations were printed for each
    of the subject licenses on February 1, 2007.

[^38]: *Id.* at 4-5.

[^39]: *Id.* at 5; Appendix C (listing the 52 licenses for which no
    extension of time was granted).

[^40]: *Id.*

[^41]: Petition at 6-12.

[^42]: *Id.* at 9-10.

[^43]: *Id.* at 12-16.

[^44]: *Id.* at 16-18.

[^45]: *Id.* at 22.

[^46]: FiberTower Corporation, Information Regarding Petition for
    Reconsideration and Request for Clarification (filed June 29, 2007)
    (June Supplement).

[^47]: FiberTower also requests that, to the extent that information
    presented in the Supplement had not previously been presented to the
    Commission, the Commission consider the information pursuant to 47
    C.F.R. §§ 1.106(c)(1), (c)(2).

[^48]: *See* June Supplement.

[^49]: Pursuant to the *Division Letter,* FiberTower filed 159
    renewal-only applications for those licenses for which the
    substantial service deadline had been extended to August 1, 2007.
    FiberTower had previously filed renewal applications for three 39
    GHz licenses that were due to expire on November 15, 2006. *See*
    File Nos. 0002819591 (WPNA435); 0002819589 (WPNA437); 0002819003
    (WPNA522). Pursuant to the *Division Letter,* the three applications
    were granted and new licenses were issued subject to the condition
    that the licensee demonstrate substantial service in each license
    area by August 1, 2007, and that failure to demonstrate substantial
    service by August 1, 2007 shall result in automatic cancellation of
    the licenses. Since August 1, 2007, FiberTower has also filed
    renewal-only applications for those 52 licenses for which no relief
    was granted by the *Division Letter*. Accordingly, there are
    currently 211 renewal-only applications pending. We list these 211
    renewal-only applications in the Appendices.

[^50]: *See* File Nos. 0002973788 (WPNE715); 0002931158 (WPND676);
    0002931157 (WPND776); 0002931204 (WPNA623). In each of these
    substantial service showings, FiberTower states that it meets the
    "safe harbor standard" of four links per million population in the
    respective licensed areas.

[^51]: *See, e.g.,* File No. 0003127025, Exhibit - Substantial Service
    Showing Demonstration for Renewal of Call Sign WPNG313 (filed Aug.
    1, 2007) ("Substantial Service Showing"). We list the 158 pending
    notification applications in the Appendices. Except as otherwise
    noted, specific references to "Substantial Service Showing" pertain
    to File No. 0003127025.

[^52]: The Commission elaborated on what may constitute "substantial
    service" for the 39 GHz band by offering some specific examples,
    which are sometimes referred to as "safe harbors," to provide 39 GHz
    band licensees with a degree of certainty as to how to comply with
    the substantial service requirement by the end of the initial
    license term. *39 GHz R&O*, 12 FCC Rcd at 18626, ¶ 46. The
    Commission explained that a 39 GHz licensee may fall within a "safe
    harbor" by constructing four permanent links per one million people
    in its licensed area. *Id.*

[^53]: *See* File Nos. 0002973788 (WPNE715); 0002931158 (WPND676);
    0002931157 (WPND776); 0002931204 (WPNA623); 0003127959 (WPNA435);
    0003127961 (WPNA437); 0003127965 (WPNA522); 0003127963 (WPNA679);
    0003127967 (WPND652); 0003127968 (WPND674); 0003127974 (WPND836);
    0003127972 (WPNE255); 0003127977 (WPNE369); 0003127978 (WPNE372);
    0003127980 (WPNE708); 0003127981 (WPNE710); 0003128011 (WPNE711);
    0003127982 (WPNE713); 0003127983 (WPNE938); 0003127984 (WPNG295);
    0003127986 (WPNG297); 0003137414 (WPNG953).

[^54]: *See* File Nos. 0003128014 (WPND649); 0003128015 (WPNE239);
    003128013 (WPNE253); 0003128017 (WPNE936); 0003128012 (WPNG308);
    0003136163 (WPNH527); 0003138481 (WPNH841); 0003138487 (WPNH846).

[^55]: *See* File No. 0003180937 (WPNH555) (filed Sep. 24, 2007; amended
    Nov. 16, 2007).

[^56]: *See* Appendix.

[^57]: Substantial Service Showing at 9.

[^58]: *Id*.

[^59]: Request for Extension of Time or, in the Alternative, Limited
    Waiver of Substantial Service Requirement (filed Aug. 8, 2008) (EA
    Extension Exhibit) at 2-3. While the exhibits filed for each
    application are essentially identical, the specific cites here are
    to the exhibit filed under File No. 0003540677.

[^60]: *Id.* at 2-3, 6-7, 12, *citing* 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, *Memorandum
    Opinion and Order*, 23 FCC Rcd 5894 (WTB 2008) (*LMDS Order*).

[^61]: EA Extension Exhibit at 1, 6, *citing* IDT Spectrum, LLC,
    *Memorandum Opinion and Order and Order on Reconsideration*, DA
    08-1878 (WTB rel. Aug. 8, 2008) (*IDT Spectrum Order*).

[^62]: 47 C.F.R. § 101.67.

[^63]: 47 C.F.R. § 101.17(a). A licensee's substantial service showing
    should include, but not be limited to, the following information for
    each license area: (1) a description of the 38.6--40.0 GHz band
    licensee's current service in terms of geographic coverage; (2) a
    description of the 38.6--40.0 GHz band licensee's current service in
    terms of population served, as well as any additional service
    provided during the license term; and (3) a description of the
    38.6--40.0 GHz band licensee's investments in its system(s) (type of
    facilities constructed and their operational status is required).
    *See* 47 C.F.R. § 101.17(a)(1)-(3).

[^64]: *See* 47 C.F.R. § 101.17(b).

[^65]: *See* File Nos. 0002973788 (WPNE715); 0002931158 (WPND676);
    0002931204 (WPND776); 0002931204 (WPNA623); 0003127959 (WPNA435);
    0003127961 (WPNA437); 0003127965 (WPNA522); 0003127963 (WPNA679);
    0003127967 (WPND652); 0003127968 (WPND674); 0003127974 (WPND836);
    0003127972 (WPNE255); 0003127977 (WPNE369); 0003127978 (WPNE372);
    0003127980 (WPNE708); 0003127981 (WPNE710); 0003128011 (WPNE711);
    0003127982 (WPNE713); 0003127983 (WPNE938); 0003127984 (WPNG295);
    0003127986 (WPNG297); 0003137414 (WPNG953).

[^66]: Specifically, FiberTower amended File Nos. 0003138481 (WPNH841)
    and 0003138487 (WPNH846) within 30 days of the construction
    deadlines for those licensed areas stating that it had now met its
    substantial service obligations in each of those areas. With respect
    to six other licensed areas, FiberTower filed similar amendments
    within 60 days of the applicable construction deadlines for those
    areas. *See* File Nos. 0003128014 (WPND649) (amended Sept. 4, 2007);
    0003128015 (WPNE239) (amended Sept. 4, 2007); 0003128017 (WPNE936)
    (amended Sept. 4, 2007); 0003128012 (WPNG308) (amended Sept. 4,
    2007); 0003136163 (WPNH527) (amended Sept. 24, 2007) (the
    substantial service deadline for Station WPNH527 was August 13,
    2007); 0003128013 (WPNE253) (amended Sept. 24, 2007) (the
    substantial service deadline for Station WPNE253 was August 1,
    2007); 0003180937 (WPNH555) (amended Nov. 16, 2007) (the substantial
    service deadline for WPNH555 was September 24, 2007).

[^67]: *See* File Nos. 0003128014 (WPND649); 0003128015 (WPNE239);
    0003128013 (WPNE253); 0003128017 (WPNE936); 0003128012 (WPNG308);
    0003136163 (WPNH527); 0003138481 (WPNH841); 0003138487 (WPNH846);
    0003180937 (WPNH555).

[^68]: *See* Appendix A for a full list of the licenses and applications
    in question.

[^69]: *See* 47 C.F.R. § 101.17(a).

[^70]: Substantial Service Showing at 9.

[^71]: *Id*.

[^72]: *Id* at 10-15.

[^73]: FiberTower notes the number of sites it has constructed
    "predominately on point-to-point licensed bands (11 GHz, 18 GHz, 23
    GHz). . . ." Substantial Service Showing at 16-17.

[^74]: *See* Substantial Service Showing at 7-9.

[^75]: *Microwave Renewals,* 17 FCC Rcd at 4406 ¶ 8.

[^76]: *See id.* at 4406-4407 ¶¶ 8-11.

[^77]: Pacific Bell Wireless LLC*,* *Memorandum Opinion and Order*, 18
    FCC Rcd 8150, 8153-8154 ¶¶ 10-13 (WTB PSPWD 2003).

[^78]: Winstar Wireless Fiber Corp., *Memorandum Opinion and Order*, 18
    FCC Rcd 24673, 24683 ¶¶ 18-19 (WTB PSPWD 2003).

[^79]: 47 C.F.R. § 1.946(e)(1).

[^80]: 47 C.F.R. § 1.946(e)(2), (3). Pursuant to 47 C.F.R. §
    1.946(e)(2), a presumption of diligence is established if a licensee
    orders equipment within 90 days of its initial license grant.

[^81]: 47 C.F.R. § 1.925.

[^82]: *Id.; see also Northeast Cellular Telephone Co. v. FCC*, 897 F.2d
    1164, 1166 (D.C. Cir. 1990); *W**AIT 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).

[^83]: *See, e.g.,* Petition at 14. []{.mark}

[^84]: *See Division Letter* at 4, n. 34.

[^85]: 47 C.F.R. § 1.946(e)(2).

[^86]: *See Division Letter* at 3 (*citing* Eldorado Communications,
    LLC, *Order*, 17 FCC Rcd 24613, 24616 (WTB CWD 2002) (*Eldorado
    Communications*)).

[^87]: Consolidated Request of the WCS Coalition for Limited Waiver of
    Construction Deadline for 132 WCS Licenses, *Order*, 21 FCC Rcd
    14134 (WTB 2006) (*WCS Extension Order*).

[^88]: FCI 900, Inc. Expedited Request for 3-Year Extension of 900 MHz
    Band Construction Requirements, *Memorandum Opinion and Order*, 16
    FCC Rcd 11072 (WTB 2001) (*FCI 900*).

[^89]: Request of Warren C. Havens for Waiver of The Five-Year
    Construction Requirement For 220 MHz Service Phase II Economic Area
    and Regional Licensees, *Memorandum Opinion and Order*, 19 FCC Rcd
    12994 (WTB 2004) (*220 MHz Extension Order*).

[^90]: *See WCS Extension Order,* 21 FCC Rcd at 14139 ¶ 10.

[^91]: *See Id*.

[^92]: *See Id.* at 14139 ¶ 9 (*citing* 47 C.F.R. § 1.946(e)(1)).

[^93]: *See Division Letter* at 5, n. 44.

[^94]: 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.

[^95]: 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.

[^96]: BRS provides integrated access to broadband technologies,
    including high-speed digital technologies that provide consumers
    integrated access to voice, high-speed data, video-on-demand, and
    interactive delivery services. Amendment of Parts 1, 21, 73, 74 and
    101 of the Commission's Rules to Facilitate the Provision of Fixed
    and Mobile Broadband Access, Educational and Other Advanced Services
    in the 2150-2162 and 2500-2690 MHz Bands, *Report and Order and
    Further Notice of Proposed Rulemaking*, WT Docket No. 03-66, 19 FCC
    Rcd 14165, ¶ 9 (2004).

[^97]: *See*, *e.g.*, Wireless Telecommunications Bureau Grants Advanced
    Wireless Services Licenses, *Public Notice*, 22 FCC Rcd 7293 (WTB
    2007).

[^98]: *See* Auction of 700 MHz Band Licenses Closes, *Public Notice*,
    DA 08-595 (WTB rel. Mar. 20, 2008).

[^99]: 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.

[^100]: *LMDS Order*, 23 FCC Rcd at 5906 ¶ 26.

[^101]: 47 C.F.R. § 101.17.

[^102]: *Id*.