**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | File No. 0003250992          |
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| THE BOARD OF TRUSTEES OF         | ** |                              |
| NORTHERN MICHIGAN UNIVERSITY     |    |                              |
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| For a New Educational Broadband  | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 6, 2008** **Released: August 6, 2008**

By the Acting Chief, Wireless Telecommunications Bureau:

**I. INTRODUCTION**

1.  On December 4, 2007, The Board of Trustees of Northern Michigan
    University (NMU or Northern Michigan University) filed an
    application[^1] and waiver request in support of its application for
    four Educational Broadband Service (EBS) channels in the area of
    Marquette, Michigan.[^2] In its Application, NMU seeks a waiver of
    the filing freeze that the Commission imposed on new EBS
    applications in the April 2003 *NPRM and MO&O* regarding services in
    the 2500-2690 MHz band,[^3] and of Section 1.1913(b) of the
    Commission's rules to permit manual filing of the Application.[^4]
    For the reasons stated below, we grant the Waiver Request with
    certain conditions and direct the Broadband Division to process the
    Application.

# II. BACKGROUND

2.  *2500-2690 MHz Band Generally*. In developing regulatory policies in
    the 2500-2690 MHz band over the last several decades, the Commission
    has been cognizant of this band's potential to host a variety of
    services. In 1963, the Commission established the Instructional
    Television Fixed Service (ITFS) in the 2500-2690 MHz band,[^5]
    envisioning that it would be used for transmission of instructional
    material to accredited public and private schools, colleges and
    universities for the formal education of students.[^6] In 1983, in
    response to the demand for additional spectrum for delivery of video
    entertainment programming to subscribers, the Commission re-allotted
    eight ITFS channels (the E and F channel blocks) and associated
    response channels for use by the Multipoint Distribution Service
    (MDS).[^7] In conjunction with this re-allotment, the FCC permitted
    ITFS licensees to lease "excess capacity" on their facilities to
    commercial entities.[^8]

3.  In April 2003, the Commission proposed new technical rules and a new
    band plan for ITFS and MDS spectrum (changing the service names to
    EBS and Broadband Radio Service (BRS), respectively). At the same
    time, it implemented a filing freeze with respect to all
    applications for new BRS and EBS licenses, as well as for major
    modifications of those licenses, in order to permit the orderly and
    effective resolution of issues in the BRS/EBS proceeding.[^9] In
    August 2003, the Commission modified the freeze by permitting the
    filing of applications for new BRS licenses and major modifications
    of those licenses.[^10] The Commission also permitted the filing of
    applications for major modifications of EBS licenses, but still
    maintained the filing freeze with respect to applications for new
    EBS licenses.[^11] On June 10, 2004, the Commission adopted new
    rules that initiated a fundamental restructuring of the 2500-2690
    MHz band in order to provide both existing EBS and BRS licensees and
    potential new entrants greater flexibility in order to encourage the
    highest and best use of spectrum domestically and internationally.
    [^12] Earlier this year, the Commission sought comment on how to
    license unassigned EBS spectrum.[^13]

4.  *Northern Michigan University License Application*. NMU states that
    it is an accredited university located in Marquette, Michigan that
    serves approximately 9,700 students with over 1,000 faculty and
    staff.[^14] The University currently offers 1,600 hybrid and
    Web-based courses in its curriculum targeted at the over 6,000
    students who live off campus and are not always able to attend
    classes in person during the winter months.[^15]

5.  On December 4, 2007, NMU filed an application seeking an EBS
    authorization with a Geographic Service Area (GSA) with a 35 mile
    radius around the following coordinates 46-30-48.8 N, 087-23-58.5
    (NAD83) on the following post-transition EBS channels: A4
    (2572.00-2578.00 MHz), B4 (2578-2584 MHz), C4 (2584-2590 MHz), and
    D4 (2590-2596 MHz).[^16] A review of Commission records indicates
    that there is no EBS license that covers Marquette, Michigan.
    However, there is a very slight overlap between that proposed GSA
    and the GSA of EBS Stations WNC755, WNC756, WNC753, and WNC762,
    licensed to the Regional Educational Media Center in Houghton,
    Michigan.[^17] NMU asks that any area currently licensed to another
    EBS entity not be included in its GSA.[^18]

6.  NMU explains that its efforts to expand learning opportunities for
    its students are limited by poor infrastructure and broadband
    availability.[^19] Specifically, NMU asserts that there are
    currently no other available broadband service options in the areas
    surrounding Marquette, Michigan, as these areas are extremely rural
    and have limited communications infrastructure.[^20] Supporting
    letters state that the areas surrounding Marquette have no broadband
    access in residences or schools because cable and telephone
    providers have not deployed service in those areas.[^21]

7.  NMU further states that it has explored other possible wireless
    broadband solutions.[^22] While NMU has deployed an 802.11 wireless
    network throughout its campus, it asserts that this WiFi network is
    subject to limitations, including low power, lack of adequate
    backhaul capacity, and difficulties in access point
    maintenance.[^23] NMU explains that it has evaluated solutions to
    combat the difficulties presented by the rural nature of its
    community and has determined that a WiMAX network is the best
    opportunity for providing bandwidth-intensive hybrid and web-based
    online courses remotely, and that EBS spectrum is its best option
    for creating a WiMAX network.[^24] NMU indicates that it intends to
    use its EBS license "solely for educational purposes."[^25]
    Specifically, NMU states that it does not intend to use this license
    for any commercial purpose and that it does not intend to lease any
    spectrum associated with this Application to another entity.[^26]

8.  NMU's application was listed on public notice as accepted for filing
    on December 12, 2007.[^27] No petitions to deny or other oppositions
    were filed. Comments in support of the application were filed by the
    Honorable Carl Levin, United States Senator,[^28] the Honorable
    Debbie Stabenow, United States Senator,[^29] and the Honorable Bart
    Stupak, United States Representative.[^30] Comments in support of
    the application also were filed by the Superintendent of the
    Marquette-Alger Regional Educational Service Agency,[^31] the Dean
    of Academic Services at NMU,[^32] the Chairman of Starbucks Coffee
    Company (an alumnus of NMU with an interest in Northern Michigan's
    local business community),[^33] and a local teacher interested in
    taking courses online from NMU.[^34] The supporting commenters argue
    that granting NMU relief will enable the university to deliver
    high-speed data to large sections of the remote, rural communities
    the university serves,[^35] as well as providing better educational
    opportunities to the Upper Peninsula (UP) citizens who live in and
    around Marquette County, Michigan.[^36]

# III. DISCUSSION

9.  As noted, NMU seeks both a waiver of the filing freeze on new EBS
    applications, and a waiver of the electronic filing requirement for
    such applications, to permit it to use available EBS channels to
    operate a WiMAX network for the provision of educational and
    instructional material.[^37] The Commission may grant a request for
    a waiver if it is shown that: (i) 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 (ii) in view of 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.[^38] As
    discussed below, we conclude that NMU has met the waiver standard
    with respect to both of its requests, and accordingly we grant its
    waiver request, subject to the conditions outlined in the following
    discussion.

10. We conclude that application of the filing freeze would be
    inequitable and contrary to the public interest under the unique
    circumstances presented by NMU's situation. Specifically, we find
    that, absent access to EBS spectrum, NMU would face substantial
    challenges in providing educational content to its students, who may
    not be able to attend classes in person during the winter months,
    and members of the Marquette community, a relatively remote rural
    location. As described by local officials, the areas surrounding
    Marquette have no broadband access in residences or schools because
    cable and telephone providers have not deployed service in those
    areas.[^39] Moreover, given that no EBS licensee covers the
    Marquette area, NMU does not have the option of leasing spectrum
    from an existing EBS licensee. In addition, NMU has also shown that
    it has explored other alternatives and has determined that EBS
    spectrum represents the best means of serving its students and the
    Marquette, Michigan community.

11. We note that NMU's proposed use of the EBS channels is consistent
    with the Commission's policy for EBS. Section 27.1201(a) of the
    Commission's Rules states that a "license for an Educational
    Broadband Service stations will be issued only to an accredited
    institution...engaged in the formal education of enrolled
    students."[^40] NMU is such an institution and has indicated that it
    will use the proposed EBS system solely to meet the educational
    needs of the University and its surrounding community.[^41] The
    provision of broadband services via a new EBS license would be
    consistent with the Commission's view that, "the public interest
    favors preserving \[EBS\] spectrum for licensing to \[educators\]
    and that doing so will further the educational objectives that led
    to the establishment of \[EBS\]."[^42]

12. We also find that granting a waiver to NMU is consistent with
    Commission precedent. In the *StratusWave MO&O*, the Commission
    granted a limited waiver of the filing freeze to allow StratusWave,
    a commercial operator, to access EBS spectrum to provide broadband
    services to areas in West Virginia and Ohio that had no broadband
    service or very limited broadband options where there were no BRS or
    EBS licensees in the area.[^43] The Commission issued ten-year,
    non-renewable conditional authorizations with conditions to ensure
    that the anticipated public interest benefits materialize, that the
    spectrum ultimately is used for educational purposes, and that
    StratusWave does not receive a windfall without delivering the
    promised service.[^44] Specifically, the Commission required
    StratusWave to reduce or terminate service as needed to protect EBS
    operations when a new adjacent-channel or co-channel EBS licensee
    notifies StratusWave that it is ready to commence providing service
    within any portion of the GSAs covered by StratusWave's licenses. In
    addition, StratusWave also must make a substantial service showing
    by December 31, 2009, a date earlier than the EBS buildout deadlines
    under the Commission's rules, and may not assign or transfer its
    authorizations until it has satisfied its buildout obligation.[^45]

13. Consistent with the Commission's decision in *StratusWave*, we also
    impose a condition in the instant case to ensure that the spectrum
    is used for educational purposes. Specifically, we adopt as a
    license condition NMU's commitment not to lease its spectrum.[^46]
    We note that additional conditions similar to those adopted in
    *StratusWave* -- setting a more limited term for the license and
    prohibiting transfer and assignment of the license until buildout
    obligations are satisfied -- are not necessary in the instant case.
    Unlike StratusWave, NMU is an educational institution eligible to
    hold an EBS license, and the license could only be assigned to
    another EBS-eligible licensee.[^47] Therefore, we do not see a
    significant risk that NMU will receive a windfall from the issuance
    of the license. Similarly, while the Commission accelerated
    StratusWave's buildout requirements as a condition of issuing the
    license, we do not see reason to do so here for NMU, given NMU's
    efforts to take steps towards expeditiously providing service under
    its STA, and the relatively near term approach of the existing
    buildout requirement for EBS licensees generally.[^48]

14. We also place two additional conditions on NMU's license, consistent
    with its request and representations in its Application. First, as
    NMU requests,[^49] its GSA shall not include any area within the GSA
    of any previously licensed co-channel EBS station.[^50] Second,
    although the discrete operations proposed in NMU's Application[^51]
    are not within the Canadian coordination zone, to the extent that
    NMU subsequently wishes to expand operations into the portion of its
    GSA that is within the coordination zone, it must comply with the
    coordination requirements of the relevant agreement between the
    United States and Canada.[^52] Specifically, prior to operating
    within 120 kilometers of the Canadian border, NMU must either file
    an application for an individual transmitter with the Commission,
    which will be coordinated with Canada,[^53] or directly coordinate
    with affected licensees across the border, as permitted under the
    agreement with Canada.

15. With respect to the electronic filing requirement contained in
    Section 1.1913(b) of the Commission's Rules,[^54] we observe that
    the Commission's electronic Universal Licensing System (ULS) is not
    currently configured to accept applications such as the one
    submitted by NMU. We therefore conclude that, in light of these
    circumstances, application of the rule would be inequitable and
    contrary to the public interest because it would be unfair to reject
    an application for failure to file electronically when electronic
    filing capability is not available. We therefore grant NMU a waiver
    to permit manual filing of its Application.

16. Based upon the evaluation of the record before us, we conclude that
    NMU has demonstrated that continued application of the filing freeze
    and electronic filing requirement would be inequitable, unduly
    burdensome and contrary to the public interest, given the unique
    circumstances of this case. We also find that waiving the filing
    freeze and the electronic filing requirement will facilitate the
    provision of educational material through a broadband network in
    Northern Michigan and will further the Commission's goals of
    ultimately providing all Americans with access to ubiquitous
    wireless broadband connections, regardless of their location.[^55]
    We note that the waivers granted in the instant Order are based on
    the unique circumstances of this case, and do not prejudge the
    Commission's consideration of the appropriate mechanism generally
    for licensing unassigned EBS spectrum.[^56]

# IV. CONCLUSION AND ORDERING CLAUSES

17. For the reasons discussed above, we grant NMU's requests for waiver
    of (1) the filing freeze that was imposed by the Commission on new
    EBS applications in the Commission's April 2003, *NPRM and MO&O*,
    and, (2) the electronic filing requirement in Section 1.1913(b) of
    the Commission's Rules. We also direct the Broadband Division to
    process NMU's Application in accordance with the requirements set
    forth in this *Memorandum Opinion and Order* and the Commission's
    rules.

18. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended 47 U.S.C. § 154(i), and
    Section 1.925(b)(3) of the Commission's Rules, 47 C.F.R. §
    1.925(b)(3), that the waiver requests filed by Northern Michigan
    University on December 3, 2007 in connection with File No.
    0003250992 ARE GRANTED, subject to the conditions noted below.

19. 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 that
    the licensing staff of the Broadband Division, Wireless
    Telecommunications Bureau SHALL PROCESS File No. 0003250992 in
    accordance with this *Memorandum Opinion and Order* and the
    Commission's Rules.

20. 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 that
    the following conditions SHALL BE IMPOSED on any authorizations
    issued to Northern Michigan University as a result of the
    application it has filed:

> The Geographic Service Area of this station shall not include any area
> within the GSA of any previously licensed co-channel EBS station.
>
> Operation within 120 kilometers of the Canadian border is prohibited
> without prior compliance with the coordination requirements of the
> Interim Arrangement Concerning the Use of the Frequency Bands 2150 --
> 2162 MHz and 2500 -- 2690 MHz by MCS and MDS Stations Near the
> Canada/United States of America Border or any subsequent agreement
> with Canada.  
>
> The Board of Trustees of Northern Michigan University shall not lease
> any spectrum associated with this license to another entity.

21. This action is 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]: File No. 0003250992 (filed Dec. 4, 2007) (Application).

[^2]: Application, Exhibit A - Request for Waiver (filed Dec. 4, 2007)
    (Waiver Request).

[^3]: *See* Waiver Request at 1. *See also* 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. *Notice of
    Proposed Rulemaking and Memorandum Opinion and Order*, WT Docket No.
    03-66, 18 FCC Rcd 6722, 6811 ¶ 226, 6825 ¶ 260 (2003) (*NPRM and
    MO&O*).

[^4]: *See* Waiver Request at 1. Section 1.913(b) of the Commission's
    Rules states in relevant part that "all applications and other
    filings using FCC Forms 601 through 608 or associated schedules must
    be filed electronically in accordance with the electronic filing
    instructions provided by ULS." 47 C.F.R. § 1.913(b).

[^5]: *See* Educational Television, Docket No. 14744, *Report and
    Order*, 39 FCC 846 (1863) (*MDS R&O*), *recon. denied* 39 FCC 873
    (1964) (*ETV Decision*).

[^6]: *See* Amendment of the Commission's Rules With Regard to the
    Instructional Television Fixed Service, the Multipoint Distribution
    Service, and the Private Operational Fixed Microwave Service; and
    Applications for an Experimental Station and Establishment of
    Multi-Channel Systems, *Report and Order*, 48 Fed. Reg. 33873, 33875
    ¶ 9 (1983) (*1983 R&O*) (*citing ETV Decision*, 39 FCC 846, 853 ¶
    25.).

[^7]: *See* Amendment of Parts 2,21,74 and 94 of the Commission's Rules
    and Regulations in regard to frequency allocation to the
    Instructional Television Fixed Service, the Multipoint Distribution
    Service, and the Private Operational Fixed Microwave Service, Gen
    Docket No. 80-112 and CC Docket No. 80-116, *Report and Order,* 94
    FCC 2d 1203 (1983) (*First Leasing Decision*).

[^8]: *Id*. at 1206-07 ¶ 4.

[^9]: *See NPRM and MO&O*, 18 FCC Rcd at 6811 ¶ 226, 6825 ¶ 260.

[^10]: *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 Bands*. Second Memorandum Opinion and
    Order*, WT Docket No. 03-66, 18 FCC Rcd 16848 ¶ 1 (2003) (*Second
    MO&O*).

[^11]: *Id*.

[^12]: *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*).

[^13]: *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, *Third Order on Reconsideration
    and Sixth Memorandum Opinion and Order and Fourth Memorandum Opinion
    and Order and Second Further Notice of Proposed Rulemaking and
    Declaratory Ruling,* WT Docket No. 03-66, 23 FCC Rcd 5992, 6060-6068
    ¶¶ 180-204 (2008) (*Second FNPRM*).

[^14]: Waiver Request at 1.

[^15]: *Id.* at 2.

[^16]: Application. On October 2, 2007, NMU filed an application for
    Special Temporary Authority (STA) to operate on EBS spectrum pending
    action on an application for regular authority to operate on the
    spectrum. Request for Special Temporary Authority, File No.
    0003187729 (filed Oct. 2, 2007) (STA Application). The STA
    Application proposed the same GSA as the instant Application. *Id.*
    The STA Application was granted on October 3, 2007. *See* License
    for Station WQHQ337 (STA). On January 17, 2008, the Bureau granted
    an application for renewal of the STA. *See* File No. 0003245253.

[^17]: Application, Appendix 2, Engineering Statement of John F.X.
    Browne at 2.

[^18]: Waiver Request at 11.

[^19]: *Id.* at 3.

[^20]: *Id*. at 1-3.

[^21]: *See* Letter from Darlene M. Walch, Dean of Academic Information
    Services, Northern Michigan University to the Federal Communications
    Commission (dated Nov. 24, 2007) (Walch Letter).; Letter from June
    M. Schaefer, Superintendent -- Marquette-Alger Regional Educational
    Service Agency to the Federal Communications Commission (dated Nov.
    15, 2007) (RESA Letter).

[^22]: Waiver Request at 3.

[^23]: *Id.* at 4.

[^24]: *Id.* at 3-4.

[^25]: *Id.* at 6.

[^26]: *Id.*

[^27]: *See* Wireless Telecommunications Bureau Market-Based
    Applications Accepted for Filing, Report No. 3694, *Public Notice*
    (rel. Dec. 27, 2007) at 3.

[^28]: Letter from Carl Levin, United States Senator, to the Marlene H.
    Dortch, Secretary, Federal Communications Commission (dated Nov. 26,
    2007) (Levin Letter).

[^29]: Letter from Debbie Stabenow, United States Senator, to the
    Honorable Kevin J. Martin, Chairman, Federal Communications
    Commission (dated Nov. 30, 2007) (Stabenow Letter).

[^30]: Letter from Bart Stupak, Member of Congress to the Marlene H.
    Dortch, Secretary, Federal Communications Commission (dated Nov. 20,
    2007) (Stupak Letter).

[^31]: RESA Letter.

[^32]: Walch Letter.

[^33]: Letter from Howard Schultz, Chairman, Starbucks Coffee Company to
    the Federal Communications Commission (dated Nov. 30, 2007) (Schultz
    Letter).

[^34]: Letter from Susan S. Syria to the Federal Communications
    Commission (dated Dec. 2, 2007) (Syria Letter).

[^35]: Stupak Letter; Stabenow Letter; RESA Letter; Schultz Letter,
    Syria Letter.

[^36]: Stupak Letter; Stabenow Letter; RESA Letter; Schultz Letter;
    Walch Letter; Levin Letter.

[^37]: *See* Waiver Request at 1.

[^38]: 47 C.F.R. § 1.925(b)(3).

[^39]: *See* Letter from Darlene M. Walch, Dean of Academic Information
    Services, Northern Michigan University to the Federal Communications
    Commission (dated Nov. 24, 2007) (Walch Letter).; Letter from June
    M. Schaefer, Superintendent -- Marquette-Alger Regional Educational
    Service Agency to the Federal Communications Commission (dated Nov.
    15, 2007) (RESA Letter).

[^40]: 47 C.F.R. § 27.1201(a).

[^41]: *See* Waiver Request at 7.

[^42]: *See* Gateway Telecom LLC d/b/a StratusWave Communications;
    Applications For New Educational Broadband Service Stations on the A
    and B Group Channels in Centerville, Ohio; and the A and B Group
    Channels in Arden, West Virginia, *Memorandum Opinion and Order*, 22
    FCC Rcd 15789, 15796 ¶ 15 (2007) (*StratusWave MO&O*).

[^43]: *StratusWave MO&O*, 22 FCC Rcd at 15798 ¶ 20. *See also* Choice
    Communications, LLC, *Memorandum Opinion and Order*, 20 FCC Rcd
    10906 (WTB 2005) (Bureau waiver of filing freeze to permit an
    existing BRS operator to obtain vacant EBS channels in the Virgin
    Islands to expand its service offerings).

[^44]: *Id.*, 22 FCC Rcd at 15799 ¶ 21.

[^45]: *Id.*, 22 FCC Rcd at 15801 ¶ 27.

[^46]: Waiver Request at 6.

[^47]: *See* 47 C.F.R. § 27.1201.

[^48]: *See* 47 C.F.R. § 27.14(o) (all EBS licensees must demonstrate
    substantial service by May 1, 2011).

[^49]: Waiver Request at 11.

[^50]: As noted above, there is a very slight overlap between that
    proposed GSA and the GSA of EBS Stations WNC755, WNC756, WNC753, and
    WNC762, licensed to the Regional Educational Media Center in
    Houghton, Michigan.

[^51]: *See* Waiver Request at 5.

[^52]: Interim Arrangement Concerning the Use of the Frequency Bands
    2150 -- 2162 MHz and 2500 -- 2690 MHz by MCS and MDS Stations Near
    the Canada/United States of America Border (Dec. 5, 1997). A similar
    condition was placed on NMU's STA. *See* STA.

[^53]: *See* 47 C.F.R. § 27.1209(b)(1)(i).

[^54]: *See* 47 C.F.R. § 1.913(b).

[^55]: FCC Strategic Plan 2006-2011 at 5. In turn, this goal is based
    upon the statutory requirement that the Commission "encourage the
    deployment on a reasonable and timely basis of advanced
    telecommunications capability to all Americans." Telecommunications
    Act of 1996, P.L. 104-104, Section 706(a).

[^56]: *See* *Second FNPRM*, *supra*.