**DA 07-2169**

**May 24, 2007**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON REQUEST BY
EVERTEK, INC. FOR WAIVER OF THE REQUIREMENT TO TRANSITION TO THE NEW
BRS/EBS BAND PLAN**

**Comment Date: June 25, 2007 Reply Date: July 10, 2007**

Evertek, Inc. (Evertek), a provider of multichannel video and high-power
wireless broadband services over licensed Broadband Radio Service (BRS)
and licensed and leased Educational Broadband Service (EBS) spectrum
centered at Spencer, Iowa and Palmer, Iowa, has filed a request for
permanent waiver of the requirement that all BRS and EBS licensees
transition to the new BRS/EBS band plan adopted in the Commission's
*Report and Order* in WT Docket No. 03-66.[^1] This band plan is set
forth in Section 27.5(i)(2) of the Commission's Rules.[^2]

In the *BRS/EBS R&O* and *FNPRM,* the Commission adopted a new band plan
in an effort to modernize and enhance our rules and policies governing
the licensing of the Educational Broadband Service (EBS) and the
Broadband Radio Service (BRS) in the 2495-2690 MHz band.[^3] Indeed, a
critical element of the *BRS/EBS R&O* and *FNPRM* is the adoption of a
market-oriented, transition mechanism that enables incumbent licensees
to develop regional plans for moving to new spectrum assignments in the
restructured band plan. The Commission, nevertheless, found that it is
in the public interest to consider case-by-case waivers of the
transition rules for a class of operators or their affiliates that: (1)
meet the definition of a Multichannel Video Programming Distributor
(MVPD) as defined in Section 522 of the Communications Act of 1934, as
amended; and (2) provide MVPD service to five percent or more of the
households within their respective Geographic Service Areas (GSAs), as
calculated in accordance with the requirements of Section 76.905(c) of
the Commission's rules.[^4] The Commission further found that it is in
the public interest to consider waivers for any BRS or EBS licensee that
is collocated with any qualified MVPD licensee that seeks a waiver to
opt-out.[^5] The Commission further found that it is in the public
interest to consider waivers for those BRS licensees that have a viable
business for high-powered operations, but who need more than seven
digitized high-powered MBS channels to deliver their service to their
customers. The Commission stated that in reviewing requests to waive the
rules, the Commission would consider the actions taken by MVPD or BRS
licensees to minimize the effect of interference on neighboring markets,
as well as the licensee's explanation as to why it cannot work within
the transition rules. The Commission stated that waivers will be granted
if it is shown that: (i) the underlying purpose of the rules(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 (ii) in view of the unique or unusual factual 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.[^6]

On April 25, 2007, Evertek filed a request for waiver to allow it to
opt-out of transitioning to the new band plan. Evertek requests waiver
of Sections 27.1230 *et. seq.* of the Commission's Rules,[^7] and also
requests that the Commission issue certain clarifications. Specifically,
Evertek requests that a grant of its requested waiver specifically state
that:

> \(1\) Evertek and its EBS channel lessors will have permanent
> authority to operate within the Spencer and Palmer GSAs pursuant to
> Section 27.1209 on the "pre-transition" BRS/EBS band plan set forth in
> Section 27.5(i)(1);
>
> \(2\) Evertek and its EBS channel lessors must participate in good
> faith in any transition planning process relating to any geographic
> area that overlaps their GSAs. In conjunction with any transition,
> Evertek and its channel lessors will subsequently make such
> modifications to their facilities at the proponent's expense (unless
> otherwise agreed) as the proponent may reasonably request in an effort
> to reduce interference to licensees in other markets that are
> transitioning, provided that such modifications can be accomplished
> without cumulatively resulting in more than a *de minimis* reduction
> in Evertek's ability to serve its then-existing subscribers;
>
> \(3\) Every main, booster, and base station currently used in
> conjunction with Evertek's system shall be permitted to continue
> operating under the maximum EIRP limits set forth for "pre-transition"
> operations in Section 27.50(h)(1)(i) and (ii);
>
> \(4\) Consistent with Section 27.55(a)(4)(i), all of the BRS and EBS
> channels in Evertek's Spencer and Palmer systems will be permitted to
> operate at any point along their respective GSA boundaries at the
> greater signal strength of 47 dBu or the strength authorized in their
> underlying licenses as of January 10, 2005;
>
> \(5\) Sections 27.1220 (regarding 5.5 MHz wide channels in the LBS and
> UBS) and 27.1222 (regarding the establishment of guard bands around
> the MBS) shall not be applicable to Evertek and its EBS and BRS
> channel lessors; and
>
> \(6\) Evertek and its EBS channel lessors shall not be subject to the
> height benchmarking obligations set forth in Section 27.1221.

Interested parties may file comments on the waiver request on or before
**June 25, 2007**. Parties interested in submitting reply comments must
do so on or before **July 10, 2007**.

All comments should reference the subject waiver request including the
DA number of this Public Notice, and should be filed with the Office of
the Secretary, Federal Communications Commission, 445 12^th^ Street SW,
TW-A325, Washington DC 20554. This address for FCC locations should be
used only for documents filed by United States Postal Service
first-class mail, Express Mail, and Priority Mail. Hand-delivered or
messenger-delivered documents for the Commission's Secretary are
accepted only by the Commission's contractor, Natek, Inc., at 236
Massachusetts Avenue NE, Suite 110, Washington DC 20002. The filing
hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes must
be disposed of before entering 236 Massachusetts Avenue NE. Other
messenger-delivered documents, including documents sent by overnight
mail (other than United States Postal Service Express Mail and Priority
Mail) should be addressed for delivery to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission. See FCC
Announces a New Filing Location for Paper Documents and a New Fax Number
for General Correspondence, *Public Notice*, 16 FCC Rcd 22165 (2001).

The full text of the waiver request, comments, and reply comments will
be available for inspection and duplication during regular business
hours in the FCC Reference Information Center (RIC) of the Consumer and
Government Affairs Bureau, Federal Communications Commission, 445 12^th^
Street SW, Room CY-A257, Washington DC 20554. Copies also may be
purchased from the Commission's duplicating contractor, Best Copy and
Printing, Inc. (BCPI), Portals II, 445 12^th^ Street SW, Room CY-B402,
Washington DC 20554. Customers may contact BCPI through its web site,
[http://www.bcpiwed.com](http://www.bcpiwed.com/), by e-mail at
fcc@bcpiwebcom, by phone at (202) 488-5300 or (800) 378-3160, or by
facsimile at (202) 488-5563. For further information regarding the
public reference file for this waiver request, contact Maria Ringold,
Chief, Wireless Branch, RIC, (202) 418-1355.

Unless otherwise provided, requests for waiver of the Commission's Rules
are subject to treatment by the Commission as restricted proceedings for
*ex parte* purposes under Section 1.1208 of the Commission's Rules, 47
C.F.R. § 1.1208. Because of the policy implications and potential impact
of this proceeding on persons not parties to the waiver request, we
believe it would be in the public interest to treat this case as a
permit-but-disclose proceeding under the *ex parte* rules. See Sections
1.1200(a), 1.1206 of the Commission's Rules, 47 C.F.R. §§ 1.1200(a),
1.1206. Therefore, subsequent to the release of this Public Notice, *ex
parte* presentations that are made with respect to the issues involved
in the subject waiver request will be allowed but must be disclosed in
accordance with the requirements of Section 1.1206(b) of the
Commission's Rules, 47 C.F.R. § 1.1206(b).

For further information, contact Genevieve Ross, Broadband Division,
Wireless Telecommunications Bureau at (202) 418-1305, or by e-mail at
<Genevieve.Ross@fcc.gov>.

By the Chief, Broadband Division, Wireless Telecommunications Bureau.

-   FCC --

[^1]: *See* 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 (2004)
    (*BRS/EBS R&O* and *FNPRM*), *affirmed in pertinent part* by *Order
    on Reconsideration and Fifth Memorandum Opinion and Order and Third
    Memorandum Opinion and Order and Second Report and Order*, 21 FCC
    Rcd 5606 (2006).

[^2]: 47 C.F.R. § 27.5(i)(2).

[^3]: *BRS/EBS R&O and FNPRM*.

[^4]: 47 CFR § 76.905(c). The original proposal to permit MVPDs to
    opt-out of the transition was presented to the Commission by the
    Wireless Communications Association, International, the Catholic
    Television Network, and the National ITFS Association in October
    2002. *See generally* A Proposal for Revising the MDS and ITFS
    Regulatory Regime, RM-10586 (filed Oct. 7, 2002). As adopted, the
    *BRS/EBS R&O* and *FNPRM* significantly altered that proposal.

[^5]: *BRS/EBS R&O*, 19 FCC Rcd 14165, 14199 ¶ 77.

[^6]: 47 C.F.R. § 1.925(b)(3).

[^7]: 47 C.F.R. § 27.1230 *et. seq.*