**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+--------------------------------------+---+----------------------------+
| In the Matter of                     | * | File No. 0002755947        |
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| BLACK HAWK COLLEGE                   | ) |                            |
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| Licensee                             | * |                            |
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| And                                  | * |                            |
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| MOLINE DISPATCH PUBLISHING COMPANY,  | ) |                            |
| L.L.C.                               | * |                            |
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| Lessee                               |   |                            |
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| Application for Consent to *De       | * |                            |
| Facto* Lease Transfer Agreement for  | ) |                            |
| Educational Broadband Service        | * |                            |
| Stations WND204 and WND205, Moline,  | * |                            |
| Illinois                             |   |                            |
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+--------------------------------------+---+----------------------------+

> **ORDER ON RECONSIDERATION**

**Adopted: June 13, 2007 Released: June 14, 2007**

By the Deputy Chief, Broadband Division, Wireless Telecommunications
Bureau:

I.  **INTRODUCTION**

    1.  On September 27, 2006, Virginia Communications, Inc. (VCI)[^1]
        filed a document entitled "Withdrawal of Consent and Petition to
        Rescind."[^2] On November 13, 2006, VCI filed a petition for
        reconsideration[^3] requesting reconsideration of the
        consent[^4] to the *de facto* transfer lease agreement for
        Educational Broadband Service (EBS) Stations WND204 and WND205
        between Black Hawk College (Black Hawk) and Moline Dispatch
        Publishing Company (Moline Dispatch). For the reasons set forth
        below, we dismiss the Withdrawal and the Petition.

        **II. BACKGROUND**

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2.  On October 20, 1995, Black Hawk filed an application for a new EBS
    Station on the D channel group at Moline, Illinois.[^5] At the time,
    VCI was the licensee of BRS Station WHT588 on the E channel
    group.[^6] Comm Speed is the current licensee of BRS Station
    WHT588.[^7] Under the Commission's pre-transition band plan, EBS
    Station WND205's Channel D4 (2590-2596 MHz) is immediately adjacent
    to BRS Station WHT588's Channel E1 (2596-2602 MHz).[^8] At the time
    Black Hawk submitted the Application, Black Hawk represented that it
    was in the process of obtaining an interference consent letter from
    VCI.[^9] VCI had submitted a letter proposing that, in return for
    Black Hawk and another \[EBS??\] licensee negotiating a channel
    lease agreement with VCI and agreeing to co-locate those stations
    with VCI, VCI would provide Black Hawk with a letter agreeing to
    accept any interference from Black Hawk's proposed EBS station.[^10]

3.  Black Hawk and VCI failed to enter into a lease agreement.[^11]
    There is no evidence that an interference consent letter from VCI
    was ever submitted to the Commission. VCI did not file a petition to
    deny or other objection against the Application.[^12] On July 18,
    1997, the former Mass Media Bureau granted the Application.[^13] VCI
    did not seek reconsideration of that grant.[^14]

4.  On September 27, 2006, VCI filed the Withdrawal.[^15] The Withdrawal
    purported to rescind VCI's consent to interference caused by Black
    Hawk's EBS Station WND205 to BRS Station WHT588 and asked for
    "rescission" of Black Hawk's license.[^16] Shortly thereafter, on
    October 4, 2006, Black Hawk and Moline Dispatch filed an application
    seeking Commission consent to a *de facto* transfer long-term lease
    of EBS Stations WND204 and WND205.[^17] On October 5, 2006, the
    Wireless Telecommunications Bureau consented to the Lease Filing,
    and public notice of that action was given on October 11, 2006.[^18]

5.  On November 13, 2006, VCI filed the Petition.[^19] VCI argues that
    the Lease Agreement Application should not have been granted because
    Black Hawk no longer had their consent to the interference that is
    caused to their BRS station, WHT588 by WND205, Black Hawk's EBS
    station.[^20] VCI claims to have withdrawn their consent in the
    Withdrawal, which was filed with the Commission just prior to the
    filing of the Lease Agreement Application.[^21] VCI states that the
    Withdrawal was predicated on Black Hawk's failure to enter into an
    excess capacity lease agreement with them.[^22] However, VCI claims
    that this contract dispute is not the basis for the Petition.[^23]
    VCI maintains that, "Black Hawk's rights with respect to Station
    WND205 are contingent on consent from VCI, and that consent has been
    withdrawn"[^24]

6.  Black Hawk argues that the Petition is untimely because it is based
    on facts relating to the original grant of the Application that
    should have been presented when the Application was granted in
    1997.[^25] Accordingly, Black Hawk asserts that VCI is actually
    objecting to the original license grant, which has since become
    final and unappealable.[^26] Black Hawk also argues that VCI has not
    established how their interests are being adversely affected by the
    consent of the Lease Filing.[^27] Finally, Black Hawk asserts that
    VCI's claim is based on a contractual dispute that the Commission
    does not have jurisdiction to resolve.[^28] Black Hawk also cites
    the Commission's new band plan, which is organized in such a way
    that BRS Station WHT588 and EBS Station WND205 are longer adjacent
    and thus no longer able to interfere with each other.[^29]

7.  In reply, VCI attempts to recast the Withdrawal as a petition to
    revoke the EBS Station WND205 license and argues that the consent to
    the Lease Filing was premature because the Bureau had not acted on
    the Withdrawal.[^30] VCI also contends that the Petition is
    procedurally proper because the only fact that it relies on is the
    withdrawal of VCI's consent to Black Hawk's operation.[^31] VCI also
    states that it is not asking the Commission to resolve the
    underlying contractual dispute between it and Black Hawk.[^32] On
    the merits, VCI claims that the Commission's post-transition band
    plan is irrelevant because the transition has not yet taken place in
    the market,[^33] and that Section 27.1222 of the Commission's Rules
    requires Black Hawk to obtain Comm Speed's consent.[^34]

    **III. DISCUSSION**

8.  We are dismissing the Petition as untimely and because VCI lacks
    standing to challenge the consent to the Lease Filing. VCI should
    have raised these arguments when Black Hawk's Application was
    granted. Furthermore, VCI's assumption that Black Hawk has a
    continuing obligation to have VCI's consent is incorrect. Finally,
    we conclude that the Withdrawal does not provide any basis for
    Commission action and dismiss that pleading.

9.  To establish a party in interest standing, a petitioner must allege
    facts sufficient to demonstrate that grant of the subject
    applications would cause it to suffer a direct injury.[^35] In
    addition, a petitioner must demonstrate a causal link between the
    claimed injury and the challenged action.[^36] In this case, VCI has
    not made such a showing with respect to the Lease Filing. Indeed,
    VCI does not attempt to claim that the Lease Filing was defective or
    violated the Commission's Rules. VCI also fails to demonstrate how
    its interests have been harmed by the Bureau's decision to consent
    to the Lease Filing.

10. Instead, VCI makes arguments challenging the underlying validity of
    the EBS Station WND205 license. With the one possible exception
    noted below, we conclude that we cannot consider such arguments
    because they should have made when Black Hawk's original Application
    was granted in 1997. Section 405 of the Communications Act of 1934,
    as amended,[^37] provides that petitions for reconsideration "must
    be filed within thirty days from the date upon which public notice
    is given of the order, decision, report or action complained
    of."[^38] To the extent VCI believes Black Hawk's Application should
    not have been granted because VCI never provided a signed consent
    letter, such argument should have been made in a petition to deny
    the Application, or, at latest, in a petition for reconsideration of
    the 1997 grant of the Application. VCI has provided no legitimate
    reason why it failed to raise its concerns in a timely manner.
    Furthermore, we believe that VCI's delay has been particularly
    prejudicial in this case because it was raised when Black Hawk is
    attempting to enter into an arrangement with a third party.

11. We also reject VCI's argument that the filing of the Withdrawal
    should have suspended processing of the Lease Filing. Section 312 of
    the Communications Act provides the Commission with the discretion
    to institute revocation proceedings on its own motion. That
    provision does not specifically create rights in third parties to
    file petitions to revoke licenses or permits.[^39] Nonetheless, the
    Commission has traditionally acted on such petitions by treating
    them as informal requests for Commission action pursuant to Section
    1.41 of the Commission\'s rules.[^40] VCI cites no authority for the
    proposition that a request for informal relief involving a station
    precludes Commission action on applications involving that
    station.[^41] Moreover, as originally filed, it was unclear what
    action, if any, the Withdrawal was requesting of the Commission.
    Most of the Withdrawal reported that VCI was withdrawing its consent
    to Black Hawk's operation.[^42] While the last clause of the
    Withdrawal asked that "the FCC rescind BHC's license,"[^43] VCI
    utterly failed to provide any clarification or justification for
    that ambiguous request. While it is unclear whether the Withdrawal
    is a proper informal request for Commission action, we will dismiss
    the pleading to eliminate any question regarding its status.

12. VCI's filings are predicated on the assumption that Black Hawk has a
    continuing duty to have VCI's consent to operate. No such duty
    exists under the Commission's Rules. Any consent letter VCI would
    have provided would have been relevant only during the time Black
    Hawk's Application was pending. Specifically, former Section
    74.903(b) listed the technical information that applicants must
    provide with their applications.[^44] Former Section 74.903(b)(4) of
    the Commission's Rules stated, "In lieu of the interference analyses
    required by paragraphs (b)(1) and (b)(2) of this Section for any
    authorized or previously proposed station(s), an applicant may
    submit a statement(s) from the affected ITFS licensee(s) or
    permittee(s) that any resulting interference is acceptable."[^45]
    Since this section listed what was required as part of the
    application, nothing in the rule required Black Hawk to have the
    continuing consent of VCI after its Application was granted.
    Furthermore, VCI's reliance on Section 27.1222 of the Commission's
    Rules[^46] is without any basis. That rule addresses operations in
    the J and K bands under the post-transition band plan.[^47] Since
    VCI itself agrees the Commission's post-transition band plan is
    irrelevant because the transition has not yet taken place in the
    market,[^48] that rule has no relevance here.

    **IV. CONCLUSION AND ORDERING CLAUSES**

13. We dismiss the Petition as untimely and for lack of standing. We
    also dismiss the Withdrawal as not providing any basis for
    Commission action. Black Hawk did not have a continuing duty to have
    VCI's consent.

14. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.41 of the Commission's Rules, 47 C.F.R. § 1.41, that the
    Withdrawal of Consent to Interference and Petition to Rescind filed
    by Virginia Communications, Inc. on September 27, 2006 IS DISMISSED.

15. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
    and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that
    the Petition for Reconsideration filed by Virginia Communications,
    Inc. on November 13, 2006 IS DISMISSED.

16. 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
>
> John J. Schauble
>
> Deputy Chief, Broadband Division,
>
> Wireless Telecommunication Bureau

[^1]: The pleadings appear to be filed in the name of the wrong entity.
    As noted below, petitioner is basing its arguments on its status as
    the licensee of Broadband Radio Service (BRS) Station WHT588. The
    licensee of Station WHT588 is Comm Speed Quad Cities, LLC (Comm
    Speed), not VCI. While Comm Speed does not have a current ownership
    Form 602 on file, we note that VCI is listed as the point of contact
    for Comm Speed and that both entities share the same contact person
    (Steve Merrill). For purposes of this pleading, we will assume that
    VCI and Comm Speed are related entities and that the listing of VCI
    as the petitioner is a harmless error.

[^2]: Withdrawal of Consent to Interference and Petition to Rescind,
    Virginia Communications, Inc. (filed Sep. 27, 2006) (Withdrawal).

[^3]: Petition for Reconsideration, Virginia Communications Inc. (filed
    Nov. 13, 2006) (Petition).

[^4]: Wireless Telecommunications Bureau Assignment of License
    Authorization Applications, Transfer of Control of Licensee
    Applications, *De Facto* Transfer Lease Applications And Spectrum
    Manager Lease Notifications, Designated Entity Reportable
    Eligibility Event Applications, and Designated Entity Annual Reports
    Action, *Public Notice*, Report No. 2683 (WTB Oct. 11, 2006) (*Lease
    Grant PN*) at 58.

[^5]: File No. BPLIF-951020AM (Application).

[^6]: File No. BLMD-9450448 (granted Sep. 14, 1994).

[^7]: File No. BALMD-200103006AAC (granted Nov. 1, 2001).

[^8]: 47 C.F.R. § 27.5(i)(1).

[^9]: Application, Engineering Statement.

[^10]: Letter from Stephen A. Merrill, Vice President, Virginia
    Communications, Inc. to Mr. Morris Bresnahan, General Manager, WQPT
    (Oct. 19, 1995). *See* Opposition to Petition for Reconsideration,
    Black Hawk College (filed Oct. 19, 2006) (Black Hawk Opposition),
    Exhibit 1.

[^11]: Petition at 2; Black Hawk Opposition at 2.

[^12]: Black Hawk Opposition at 1.

[^13]: Broadcast Actions, Report No. 44041, *Public Notice* (Jul. 25,
    1997).

[^14]: Black Hawk Opposition at 1.

[^15]: Withdrawal.

[^16]: *Id.*

[^17]: File No. 0002755947 (Lease Filing).

[^18]: *Id.*; *Lease Grant PN*.

[^19]: Petition.

[^20]: Petition at 2.

[^21]: *Id.*

[^22]: *Id.*

[^23]: *Id.*

[^24]: *Id.*

[^25]: Black Hawk Opposition at 4.

[^26]: *Id.* at 5-6.

[^27]: *Id.*

[^28]: *Id.* at 6-7.

[^29]: *Id.* at 7-9.

[^30]: Reply, Virginia Communications, Inc. (filed Dec. 11, 2006)
    (Reply) at 1.

[^31]: *Id.* at 3.

[^32]: *Id.* at 3-4.

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

[^34]: *Id.* at 4-5.

[^35]: *See* AT&T Wireless PCS, Inc., *Order*, 15 FCC Rcd 4587, 4588 ¶ 3
    (WTB CWD 2000) (*AT&T Wireless*) (*citing* *Sierra Club v. Morton*,
    405 U.S. 727, 73 (1972); Lawrence N. Brandt, *Memorandum Opinion and
    Order*, 3 FCC Rcd 4082 (1988).

[^36]: *AT&T Wireless*, 15 FCC Rcd at 4588 ¶ 3 (*citing* *Duke Power Co.
    v. Carolina Environmental Study Group, Inc*. 438 U.S. 59, 72, 78
    (1978)).

[^37]: 47 U.S.C. § 405 (1996).

[^38]: *See also* 47 C.F.R. § 1.106(f).

[^39]: 47 U.S.C § 312. See also Manning Telecasting, Inc., File Nos.
    BMPCT-850328KF, BTCCT-850328KG, *Memorandum Opinion and Order,* 1986
    WL 292657 (Feb. 14, 1986); Conn-2 RSA Partnership, *Memorandum
    Opinion and Order,* 9 FCC Rcd at 3298 n.7 (*citing* City of
    Kerrville v. Dugosh Flying Service, Inc., *Memorandum Opinion and
    Order,* 99 FCC 2d 124, 126 (1984) and Puerto Rican Media Action and
    Educational Council, Inc. v. Educational Broadcasting Corp.,
    *Memorandum Opinion and Order,* 51 FCC 2d 1178 (1975)).

[^40]: 47 C.F.R. § 1.41. See Conn-2 RSA Partnership, 9 FCC Rcd at 3298
    n.7.

[^41]: *Compare* 49 U.S.C. § 309(d)(2) (if a petition to deny is filed,
    the Commission must evaluate the petition and issue a concise
    statement of reasons for denial of that petition before acting on
    the application).

[^42]: Withdrawal.

[^43]: Withdrawal at 2.

[^44]: 47 C.F.R. § 74.903(b) (1995) ("An applicant for a new
    instructional television fixed station or for changes in an existing
    ITFS facility for a construction permit must include the following
    technical information with the application . . .")

[^45]: 47 C.F.R. § 74.903(b)(4).

[^46]: 47 C.F.R. § 27.1222.

[^47]: The rule refers to the Lower Band Segment, Upper Band Segment,
    and Middle Band Segment, which are elements of the post-transition
    band plan. *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, 14183-14184 ¶ 37 (2004).

[^48]: *Id.* at 4.