**DA 06-2617**

**December 28, 2006**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON REQUEST BY
ANTILLES WIRELESS, L.L.C. d/b/a USA DIGITAL FOR WAIVER OF THE
REQUIREMENT TO TRANSITION TO THE NEW BRS/EBS BAND PLAN**

**Revised Comment Date: January 9, 2007 Revised Reply Date: January 19,
2007**

Antilles Wireless, L.L.C. d/b/a USA Digital (USA Digital) a provider of
multichannel video, audio, wireless broadband, and voice services over
licensed and leased Broadband Radio Service (BRS) and leased Educational
Broadband Service (EBS) spectrum in Billings, Montana, and the
surrounding area, has filed, on its behalf and on behalf of all the EBS
and BRS licensees from which USA Digital leases excess capacity, 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 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 GSAs, as calculated in accordance with the
requirements 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 November 16, 2006, USA Digital filed a request for waiver to allow it
to opt out of transitioning to the new band plan. USA Digital requests
waiver of Sections 27.1230 *et. seq.* of the Commission's Rules,[^7] and
also requests that the Commission issue certain clarifications.
Specifically, USA Digital requests that grant of its requested waiver
specifically state that:

> \(1\) USA Digital and its channel lessors will have permanent
> authority to operate pursuant to Section 27.1209 on the
> "pre-transition" BRS/EBS band plan set forth in Section 27.5(i)(1);
>
> \(2\) USA Digital and its 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, USA
> Digital and its channel lessors will subsequently make such
> modifications to their facilities at the Proponent's expense 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 USA Digital's ability to
> serve its then-existing subscribers;
>
> \(3\) Every main, booster and base station currently used in
> conjunction with USA Digital'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);
>
> \(4\) Any channels used for the transmission of digital video
> programming on USA Digital's system shall be permitted to continue
> operating under the "pre-transition" emission limits for digital video
> programming channels set forth in Section 27.53(l)(3). In addition,
> per Section 27.53(l)(5), USA Digital and its channel lessors shall be
> permitted to operate fixed, temporary fixed, and mobile data stations
> deployed as of January 10, 2005, provided that those facilities are in
> compliance with the emission limits set forth in former Sections
> 21.908 and 74.936;
>
> \(5\) Consistent with Section 27.55(a)(4)(i), all of the BRS and EBS
> channels in USA Digital's system 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;
>
> \(6\) 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 USA Digital and its EBS and BRS
> channel lessors; and
>
> \(7\) USA Digital and its channel lessors shall not be subject to the
> height benchmarking obligations set forth in Section 27.1221.

On December 15, 2006, the Broadband Division of the Wireless
Telecommunications Bureau issued a public notice seeking comment on USA
Digital's proposal.[^8] Comments were due January 2, 2007, and replies
were due January 12, 2007.[^9] On December 18, 2006, Clearwire
Corporation, on behalf of itself and its wholly owned subsidiary, Fixed
Wireless Holdings, LLC (collectively, Clearwire) filed a motion to
extend the filing date for comments and reply comments.[^10]
Specifically, Clearwire suggested the time allotted for comments and
reply comments would provide inadequate time to submit a complete
record.[^11] We note that USA Digital does not object to a grant of
Clearwire's request. Under those circumstances, we find good cause for
extending the original filing dates by one week because it will benefit
all parties and allow the creation of a more complete record.

Interested parties may now file comments on the waiver request on or
before January 9, 2007. Parties interested in submitting reply comments
must do so on or before January 19, 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 John J. Schauble, Deputy Chief,
Broadband Division, Wireless Telecommunications Bureau at (202)
418-0797, or by e-mail at <John.Schauble@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.*

[^8]: Wireless Telecommunications Bureau Seeks Comment On Request By
    Antilles Wireless, L.L.C. d/b/a USA Digital for Waiver of the
    Requirement to Transition to the New BRS/EBS Band Plan, *Public
    Notice*, DA 06-2529 (WTB BD rel. Dec. 15, 2006).

[^9]: *Id.*

[^10]: Motion for Extension of Time from Clearwire Corporation, filed on
    behalf of Fixed Wireless Holdings, LLC (collectively
    Clearwire)(filed Dec. 18, 2006) (Extension Motion).

[^11]: Extension Motion at 1, 2.