**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  |                              |
|                                  | *) |                              |
| ANTILLES WIRELESS, L.L.C. d/b/a  | ** |                              |
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| USA DIGITAL                      | *  |                              |
|                                  | *) |                              |
| Request for Permanent Waiver of  | ** |                              |
| Commission Rules Regarding       |    |                              |
| Transition of Broadband Radio    | *  |                              |
| Service and Educational          | *) |                              |
| Broadband Service to Revised     | ** |                              |
| Band Plan                        |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: May 23, 2007 Released: May 24, 2007**

By the Associate Chief, Wireless Telecommunications Bureau:

# introduction

1.  The Wireless Telecommunications Bureau (Bureau) has before it a
    request by Antilles Wireless, L.L.C. d/b/a USA Digital (USA
    Digital), seeking a waiver of Sections 27.1230-27.1239 of the
    Commission's Rules[^1] for itself and all of its Broadband Radio
    Service (BRS) and Educational Broadband Service (EBS)
    licensees/lessors.[^2] Sprint Nextel Corporation (Sprint
    Nextel),[^3] Clearwire Corporation (Clearwire),[^4] Montana State
    University (MSU),[^5] and the Hispanic Information and
    Telecommunications Network, Inc. (HITN),[^6] filed oppositions to
    the waiver request. For the reasons discussed below, the Bureau
    grants USA Digital's Waiver Request.[^7]

# background

2.  On July 29, 2004, the Commission released a *Report and Order and
    Further Notice of Proposed Rulemaking* (*BRS/EBS* *R&O*) that
    transformed the rules and policies governing the licensing of
    services in the 2500-2690 MHz band.[^8] Prior to the *BRS/EBS*
    *R&O*, the technical rules and band plan for the 2500-2690 MHz band
    were designed primarily to promote wireless cable and educational
    television services, which resulted in licensees receiving
    interleaved channel groups instead of contiguous channel blocks.[^9]
    In most areas of the country, however, the deployment of wireless
    cable was not successful.

3.  Consequently, in the *BRS/EBS* *R&O*, the Commission developed a new
    band plan and technical rules that permit a range of new and
    innovative wireless services in the 2500-2690 MHz band and gives
    licensees contiguous channel blocks.[^10] The new band plan consists
    of two low-power segments, the Lower Band Segment (LBS) and the
    Upper Band Segment (UBS), and a high-power segment, the Middle Band
    Segment (MBS).[^11] The channel configuration and the technical
    rules for the LBS and UBS are designed to permit a range of wireless
    services.[^12] The MBS, in contrast, consists of seven high-power
    channels and is designed for the transmission of video programming,
    for those licensees that still wish to provide such
    programming.[^13] The *BRS/EBS* *R&O* further established a plan to
    transition EBS and BRS licensees from their interleaved channel
    locations to their new channel locations in the LBS, UBS, or
    MBS.[^14] Not all licensees, however, are required to transition to
    the new band plan and technical rules. The *BRS/EBS* *R&O* permitted
    certain Multichannel Video Programming Distributors (MVPD) to seek a
    waiver from the Commission to "opt-out" of the transition, thus
    permitting them to continue high-power, high-site operations
    throughout the entire 2500-2690 MHz band.[^15] On April 27, 2006,
    the Commission released the *Third Memorandum Opinion and Order and
    Second Report and Order* (*3rd MO&O*), in which it affirmed its
    decision to consider these waivers on a case-by-case basis.[^16]

4.  USA Digital asks on behalf of itself and its licensees/lessors to
    "opt-out" of the transition of the 2500-2690 MHz band in Billings,
    Montana and seeks a waiver of Section 27.1230-27.1239 of the
    Commission's rules for itself and all of its licensees/lessors.[^17]
    In addition, USA Digital requests that the waiver state that:

-   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);

-   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 *de minimis* reduction in USA Digital's
    ability to serve its then-existing subscribers;

-   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);

-   Any channel 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 Section 21.908 and 74.936;

-   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;

-   Section 27.1220 (regarding the 5.5 MHz wide channels in the LBS and
    UBS) and 27.1222 (regarding the establishment of guardbands around
    the MBS) shall not be applicable to USA Digital and its channel
    lessors; and

-   USA Digital and its channel lessors shall not be subject to the
    height benchmarking obligations set forth in Section 27.1221.

5.  Sprint Nextel,[^18] Clearwire,[^19] MSU,[^20] and HITN[^21] filed
    comments opposing USA Digital's waiver request. They argue that USA
    Digital does not meet the Commission's waiver standard and has not
    presented technical evidence to show that its continued operation
    under the old band plan and technical rules will not cause harmful
    interference to other 2.5 GHz licensees.[^22] Sprint Nextel and MSU
    express concern about the impact a waiver would have on their
    contemplated operations in Sheridan, Wyoming (Sprint Nextel) and
    Bozeman, Montana (MSU).[^23] In addition, Sprint Nextel argues that
    USA Digital does not demonstrate that its MVPD operations will
    remain commercially viable in the future.[^24] Clearwire argues that
    permitting USA Digital to opt-out of the transition will prevent
    Clearwire, the Billings, Montana BTA holder, from deploying service
    not only in Billings but also in the entire BTA, thus hurting
    competition.[^25]

# discussion

6.  In the *BRS/EBS* *R&O*, the Commission found that it is in the
    public interest to consider waivers of the rules requiring licensees
    to transition to the new band plan and to comply with the new
    technical rules.[^26] Specifically, the Commission found that it is
    in the public interest to consider waivers on a case-by-case basis
    for those operators or their affiliates that meet the definition of
    a multichannel video programming distributor in Section 522 of the
    Communications Act of 1934, as amended, and that provide MVPD
    service to five percent or more of the households within their
    respective geographic service areas (GSAs) (this calculation is made
    in accordance with the requirements of Section 76.905(c)[^27] of the
    Commission's Rules).[^28] The Commission further found that it is in
    the public interest to consider waivers for any BRS or EBS licensee
    that is co-located with any qualified MVPD licensee that elects to
    opt-out.[^29] In addition, the Commission 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.[^30]

7.  The Commission stated that, in reviewing requests to waive the
    rules, it would consider the actions taken by MVPD or BRS licensees
    to minimize the affect of interference on neighboring markets, as
    well as the licensee's explanation as to why it cannot work within
    the transition rules adopted by the Commission.[^31] 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.[^32]

8.  Initially, we conclude that HITN lacks standing to file an
    opposition to the Waiver Request. HITN claims standing because it
    has pending a petition for reconsideration of the Commission's
    decision to dismiss its application for a new EBS station on the
    G-group EBS channels in Billings.[^33] Under Commission precedent, a
    potential assignee of a television station that would compete with
    another station in the market lacks standing to file petitions to
    deny against other stations in that market.[^34] HITN's status as a
    dismissed applicant with a pending petition for reconsideration is
    even more tenuous than a potential assignee of a licensed station
    because the Commission has already dismissed its application and
    affirmed that dismissal. Furthermore, we believe that HITN's
    arguments are largely made by other commenters and thus are
    considered in this proceeding. Accordingly, we will give no further
    consideration to HITN's pleading.

9.  USA Digital has shown that, in view of its unusual circumstances,
    requiring it to transition to the new band plan and technical rules
    would be inequitable, unduly burdensome, and contrary to the public
    interest. First, USA Digital has shown that it cannot transition to
    the new band plan because its BRS/EBS system uses more than seven
    digitized channels to deliver digitally compressed multichannel
    video service programming.[^35] USA Digital is the licensee or
    lessee of all the BRS and EBS spectrum in Billings, Montana, except
    for the G-group EBS channels and BRS Channel No. 2A.[^36] USA
    Digital provides 116 channels of digitized video programming.[^37]
    As stated above, under the *BRS/EBS R&O*, USA Digital is not
    required to show that it provides service to at least five percent
    of the households within its geographic service area if it can show
    that it needs more than seven digitized channels and has a viable
    business for high-powered operations. The Bureau therefore rejects
    the arguments made by Clearwire and Sprint Nextel that USA Digital's
    waiver request is defective because USA Digital did not show that it
    provides service to at least five percent of the households within
    its geographic service area."[^38] In light of USA Digital's showing
    that it needs more than seven digitized channels, we reject
    Clearwire's argument that USA Digital can provide its legacy service
    on the MBS.[^39]

10. Second, USA Digital has shown that it has developed a viable
    business. USA Digital has provided a Declaration from Christian M.
    Hilliard, its President and principal owner.[^40] Mr. Hilliard
    describes USA Digital's operations as follows. In 1999, USA Digital
    invested \$5 million to expand its service offerings and currently
    offers digital cable programming, broadband, and telephony service,
    including 116 channels of digitized video programming, 37 channels
    of digital audio, high-speed broadband service, and VoIP telephone
    service.[^41] USA Digital provides digital video service to
    approximately 2700 subscribers, broadband data services to over 200
    subscribers, and recently introduced telephony services to
    approximately 300 subscribers.[^42] In light of the detailed
    information presented by Mr. Hilliard, the Bureau finds that USA
    Digital has developed a viable business. Moreover, we reject Sprint
    Nextel's argument that USA Digital must demonstrate that its MVPD
    operations are likely to remain commercially viable in the
    future.[^43] We note that the agency did not require such a showing
    when it granted WATCH TV's or Digital TV One's respective waiver
    requests.[^44] Nor did the agency require WATCH TV or Digital TV One
    to provide information from investors, qualified financial
    institutions, auditors, accountants, or owners indicating that their
    businesses remained viable for the foreseeable future, as Sprint
    Nextel argues that we should require here.[^45]

11. Third, we find that USA Digital, by providing two engineering
    analyses by T. Lauriston Hardin, P.E., has shown that the
    interference concerns raised by Sprint Nextel are without merit and
    the interference concerns raised by MSU are easily managed.[^46]
    While Sprint Nextel has submitted engineering maps, it failed to
    provide the underlying data necessary to demonstrate that there
    would be an interference problem. In contrast, the engineering
    analyses submitted by USA Digital show that its system will not
    cause interference to Sprint Nextel's proposed operations in
    Sheridan, Wyoming, and will cause only minimal interference into the
    Bozeman, Montana GSA where MSU is contemplating operations. Mr.
    Hardin analyzed both sites according to the requirements of Section
    27.55(a) of the Commission's rules. Section 27.55(a) permits a
    licensee in the LBS/UBS to transmit signals with a strength up to 47
    dB\[mµ\]V/m measured at 1.5 meters above ground.[^47] Section
    27.55(a) also permits a licensee in the MBS to transmit a signal at
    the GSA boundary up to --73 +10 log(X/6) dBW/M^2,^ where X is the
    bandwidth in MHz of the channel.[^48] Mr. Hardin's engineering
    analysis of the potential for interference between USA Digital and
    Sprint Nextel's Sheridan, Wyoming site, which are 70 miles apart,
    states that "the Billings transmit site is blocked by terrain
    shielding from reaching the Sheridan GSA."[^49] Mr. Hardin concludes
    that "\[t\]he Billings system will not cause interference . . . to
    the Sheridan system."[^50]

12. The engineering analysis shows that the Billings system, which is 80
    miles from the Bozeman BTA, will cause minor interference in an
    unpopulated area of the Bozeman BTA.[^51] We agree with USA Digital
    that such interference is *de minimis,* not only because the area
    where the signal intrudes is unpopulated, but also because MSU's
    system is non-operational. Thus, we also agree with USA Digital that
    MSU can mitigate any potential interference from USA Digital's
    current operations by appropriately designing its future
    cellularized BRS/EBS system. We emphasize, as correctly stated by
    USA Digital, that no licensee has any assurance that signals from
    co-channel operations will not intrude into its GSA under the
    Commission's post-transition rules.[^52]

13. Fourth, we find that USA Digital adequately addresses concerns about
    interference to the remainder of the Billings BTA. According to USA
    Digital, "the Billings BTA is massive -- comprising the entire half
    of Montana (25 counties) and northwestern Wyoming (3
    counties)."[^53] Yet, despite this vast area, USA Digital states
    that it is aware of no other operating BRS/EBS system in the
    Billings BTA.[^54] USA Digital further states that because Billings
    is largely surrounded by mountains, it is highly unlikely that any
    system deployed in the future outside of Billings will suffer
    material interference from signals emanating from USA Digital's
    operations.[^55] Moreover, USA Digital explains, because the area
    outside Billings, Montana is extremely rural, it is unlikely that
    any operations will be deployed in the immediate vicinity of
    Billings.[^56] We note that Clearwire, the Billings BTA holder, is
    in agreement on this point; Clearwire states that "\[w\]ithout
    Billings proper, it is unlikely that a business case could support
    deployment in the remainder of the BTA. . . "[^57] Thus, we reject
    as speculative Clearwire's argument that USA Digital's operations
    would prevent Clearwire from deploying service outside of Billings
    even if a business case could be made to deploy such service.
    Clearwire has not submitted engineering studies to show that it may
    be precluded from providing service if USA Digital does not
    transition to the new band plan.[^58]

14. Clearwire argues that if Billings is transitioned, it could operate
    a system in Billings; then, according to Clearwire, the business
    case would support service in the remainder of the BTA outside of
    Billings.[^59] We find this speculative because we agree with USA
    Digital that even if Billings is transitioned to the new band plan,
    Clearwire does not control enough spectrum to operate a system using
    its current technology. USA Digital owns or leases all of the
    channels except the G-group, which is unlicensed, and BRS channel
    No. 2A, which is licensed to Clearwire. Clearwire has reported to
    the Securities and Exchange Commission that it does not launch
    service in a market using its current technology unless it controls
    a minimum of six channels containing a minimum of 5 megahertz of
    spectrum each.[^60] Thus, to operate a system in Billings, Clearwire
    would have to obtain or lease at least an additional 26 megahertz of
    spectrum.[^61] Even if Clearwire could lease the G-group channels
    from a future EBS licensee, Clearwire would still be short of that
    goal. Based on the record before us, it appears that the only way
    Clearwire could commence service in Billings is if USA Digital
    ceased providing service, either voluntarily or involuntarily.

15. We reject Clearwire's argument that its BRS Channel No. 2A would be
    orphaned if Billings were not transitioned. Clearwire argues that
    the pre-transitioned channel F2 at 2618-2620 MHz and channel E3 at
    2620-2624 MHz would occupy its channel location in the new band
    plan.[^62] The Commission provided for this situation by assigning
    BRS Channel No. 2/2A in untransitioned markets the frequencies at
    2686-2690 MHz; thus, Clearwire's BRS Channel No. 2A has a channel on
    which it can be located.[^63] We also reject Clearwire's argument
    that we should deny USA Digital's waiver request because Clearwire,
    as the Billings BTA holder and the most logical proponent, would
    probably not transition the remainder of the BTA if it cannot
    transition Billings.[^64] The Commission has provided a
    self-transitioning option for those licensees in the remainder of
    the BTA that wish to transition to the new band plan.[^65] Licensees
    that do not self-transition may be transitioned by another mechanism
    adopted by the Commission at a later time.[^66]

# CONCLUSION AND ordering clauses

16. The Bureau concludes that USA Digital has justified a waiver by
    demonstrating that it has a viable business for high-powered
    operations and that it needs more than seven digitized high-powered
    MBS channels to deliver its service to its customers. The Bureau
    also concludes that requiring USA Digital to transition to the new
    band plan would be inequitable, unduly burdensome and contrary to
    the public interest because it would be required to discontinue its
    existing service to customers

17. ACCORDINGLY, IT IS ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), and Sections 1.925
    and 27.1231(g) of the Commission's Rules, 47 C.F.R. §§ 1.925,
    27.1231(g), that the Request for Waiver filed by Antilles Wireless,
    L.L.C. d/b/a/ USA Digital on November 16, 2006 IS GRANTED.

18. 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
>
> Jane E. Jackson
>
> Associate Chief, Wireless Telecommunications Bureau

[^1]: Request for Waiver (filed Nov. 16, 2006) (Waiver Request).
    Sections 27.1230-27.1239 of the Commission's rules concern the
    transition of Broadband Radio Service (BRS) and Educational
    Broadband Service (EBS) to the band plan adopted by the Commission
    in the *BRS/EBS Report and Order*. 47 C.F.R. §§ 27.1230-27.1239.
    *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* as appropriate).

[^2]: USA Digital's six licensees/lessors are as follows: Station WHR682
    (Channels A1-A4/St. Vincent Hospital); Station WNC588 (Channels
    B1-B4/Excellence in Education); Station WNC233 (Channels
    C1-C4/Foreign Language Foundation); Station WNC229 (Channels
    D1-D4/American Foundation for Instructional TV); WNTA626 (Channel
    H1/Touch Tel Corporation); and WNTA580 (Channel H3/Libmot
    Communications Partnership). Antilles Wireless is the licensee for
    Stations WFY603 (Channels E1-E4); WLW837 (Channels F1-F4); WNTA982
    (Channel H2); and WFY748 (Channel 1).

[^3]: Opposition of Sprint Nextel Corporation (filed Jan. 9, 2007)
    (Sprint Nextel Opposition).

[^4]: Opposition to and Comments on Request for Waiver (filed Jan. 9,
    2007) (Clearwire Opposition).

[^5]: Comments of Montana State University (filed Jan. 9, 2007) (MSU
    Opposition).

[^6]: Opposition to and Reply Comments on Request for Waiver (filed Jan.
    26, 2007) (HITN Opposition).

[^7]: On December 15, 2006, the Broadband Division/WTB released a Public
    Notice seeking comment on the waiver request. Comments were due on
    January 2, 2007 and replies were due on January 12, 2007. Wireless
    Telecommunications Bureau Seek 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*, 21 FCC Rcd
    14499 (WTB BD 2006). On December 18, 2006, Clearwire filed a Motion
    for Extension of Time to submit comments. This motion was unopposed.
    On December 28, 2006, the Broadband Division released a second
    Public Notice establishing a revised comment and reply comment
    schedule with comments due on January 9, 2007 and the reply due on
    January 19, 2007. Wireless Telecommunications Bureau Seeks Comments
    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*, 21 FCC Rcd 15042 (WTB BD 2006). On January 9, 2007,
    USA Digital filed a Motion for Extension of Time to file reply
    comments, requesting a one-week extension to January 26, 2007. On
    January 19, 2007, Sprint Nextel filed an Opposition of Sprint Nextel
    Corporation opposing the one-week extension. On January 23, 2007,
    USA Digital filed a Reply to Sprint Nextel's Opposition to the
    extension request. On January 23, 2007, in a telephone conference
    call with the parties, the Broadband Division orally granted USA
    Digital's Motion for Extension of Time. USA Digital filed a reply on
    January 26, 2007. Consolidated Reply Comments (filed Jan. 26, 2007)
    (Reply).

[^8]: *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* as appropriate).

[^9]: In the EBS and BRS services, channels are usually licensed in
    groups of four. When EBS was created, EBS reception equipment could
    not receive adjacent channels without interference. Thus, the
    Commission interleaved the A block channels with the B block
    channels, the C block channels with the D block channels, the E
    block channels with the F block channels and the G block channels
    with the H block channels. *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, *Notice of
    Proposed Rulemaking and Memorandum Opinion and Order,* WT Docket No.
    03-66, 18 FCC Rcd 6722, 6744 ¶ 47 (2003) (*NPRM*).

[^10]: *See BRS/EBS R&O*, 19 FCC Rcd at 14168 ¶ 4.

[^11]: *Id.* at 14169 ¶ 6.

[^12]: *Id.* at 14168 ¶ 4.

[^13]: *Id.* at 14185-14186 ¶ 4.

[^14]: *Id*. at 14197-14198 ¶ 72.

[^15]: *Id.* at 14199-14200 ¶ 77.

[^16]: 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 Memorandum Opinion and Order and Second
    Report and Order,* WT Docket No. 03-66, 21 FCC Rcd. 5606, 5645 ¶ 72
    (2006) (*BRS/EBS 3rd MO&O)*. In the *3rd MO&O,* the Commission also
    granted WATCH TV's request to opt-out of the transition of the 2.5
    GHz band in Lima, Ohio. *Id*. at ¶ 84.

[^17]: Waiver Request at 1.

[^18]: Sprint Nextel Opposition. Sprint Nextel holds the following
    geographic service area BRS licenses in the Sheridan, Wyoming area:
    Station WLW824 (Channels E1-E4); Station WLW820 (Channels F1-F4);
    and Station WNTF638 (Channels H1-H3). Sprint Nextel Opposition at 2
    n.4.

[^19]: Clearwire Opposition. Clearwire is the licensee of BRS Station
    BTA 041 (Billings, Montana). The GSA of Clearwire's BTA
    authorization allows it to operate on all BRS channels throughout
    the Billings BTA, except where incumbent authorizations (such as
    those held by USA Digital and its lessors) exist. *See* 47 C.F.R.
    27.1206(a)(2). In the immediate Billings area, the only channel
    which is part of the GSA of Clearwire's BTA authorization is BRS
    Channel No. 2A (2156-2160 MHz).

[^20]: MSU Opposition. MSU is the licensee of WNC740 (A-group) and
    WNC743 (D-group) in Bozeman, Montana. MSU Opposition at 2.

[^21]: HITN Opposition. HITN filed an application for the G-group EBS
    channels in Billings, Montana, which the Commission dismissed as
    mutually exclusive. *See* *BRS/EBS R&O* and *FNPRM*, 19 FCC Rcd
    14165, 14377 at Appendix E. HITN has filed a Petition for
    Reconsideration of this dismissal, which is pending. HITN Petition
    for Reconsideration (filed Jul. 19, 2006).

[^22]: Sprint Nextel Opposition at 5, Clearwire Opposition at 6, MSU
    Opposition at 2, HITN Opposition at 4.

[^23]: Sprint Nextel Opposition at 2, MSU Opposition at 2.

[^24]: Sprint Nextel Opposition at 6.

[^25]: Clearwire Opposition at 1-2.

[^26]: *BRS/EBS R&O*, 19 FCC Rcd at 14199 ¶ 77.

[^27]: 47 C.F.R. § 76.905(c).

[^28]: *BRS/EBS R&O*, 19 FCC Rcd at 14199 ¶ 77.

[^29]: *Id.*

[^30]: *Id.*

[^31]: *Id.*

[^32]: *Id.*, 19 FCC Rcd at 14199-14200 ¶ 77, 47 C.F.R. § 1.925(b)(3).

[^33]: HITN Opposition at 2-3. The Commission originally dismissed
    HITN's application in the *BRS/EBS R&O.* *BRS/EBS R&O*, 19 FCC Rcd
    at 14264-14265 ¶ 263. It then affirmed that dismissal in the
    *BRS/EBS 3^rd^ MO&O*. *BRS 3^rd^ MO&O*, 21 FCC Rcd at 5703-5704 ¶¶
    236-238.

[^34]: *See* Syracuse Channel 62, Inc., *Memorandum Opinion and Order*,
    60 Rad. Reg. 2d 1161, 1164 ¶ 10 (1986).

[^35]: Waiver Request at 3, Reply at Attachment A.

[^36]: Waiver Request at 5-6. The G-group EBS channels are unlicensed
    and BRS Channel No. 2A is licensed to Clearwire as part of its BTA
    authorization.

[^37]: Waiver Request at 2, Reply at Attachment A.

[^38]: Clearwire Opposition at 6, Sprint Nextel Opposition at 4-6.

[^39]: Clearwire Opposition at 7.

[^40]: Reply at Attachment A.

[^41]: *Id*.

[^42]: Waiver Request at 2-3. Mr. Hilliard states that USA Digital's
    MVPD service is fully competitive with that of larger cable and DBS
    operators. According to Mr. Hilliard, USA Digital serves rural areas
    that are not served by the incumbent wireline cable provider and
    that do not receive over-the-air television. Neither DBS provider
    carries all of the local television stations to the Billings market,
    while USA Digital retransmits all local broadcast signals, including
    to rural areas. Mr. Hilliard states that not only is USA Digital's
    video and data service priced below its competitors' services, but
    also its presence in the marketplace has kept the price of broadband
    services down and has caused two incumbent providers to introduce
    packages of video, broadband, and phone service that are just below
    the national average of \$100 per month. Mr. Hilliard states that
    its newly-launched VoIP offering is "enjoying tremendous early
    acceptance" with USA Digital's subscribers. Consolidated Reply at
    Attachment A.

[^43]: Sprint Nextel Opposition at 6.

[^44]: *See* *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5646-5650 ¶¶ 75-84; WHTV
    Broadcasting Corp. d/b/a Digital TV One and Caribbean University
    *Memorandum Opinion and Order*, 22 FCC Rcd 1314 (WTB 2007) (*Digital
    TV One*).

[^45]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5646-5650 ¶¶ 75-84; *Digital TV
    One*. *See* Sprint Nextel Opposition at 6.

[^46]: Reply at Attachments B and C.

[^47]: 47 C.F.R. § 27.55(a).

[^48]: *Id*.

[^49]: Reply at Attachment B.

[^50]: *Id*.

[^51]: The engineering analysis states that "the Billings system meets
    the -73 dBW/m^2^ requirements in the direction of the Bozeman GSA"
    and will not cause interference to the Bozeman system. The
    engineering analysis further shows that the Billings system "does
    not exceed the 47 dbµ at all but a few points within the Bozeman
    GSA." According the engineering analysis the areas where "the
    Billings signal exceeds 47 dbµV/m requirement area contained a
    population of 2 and a household count of 0." Reply at Attachment C.

[^52]: After the transition takes place, in the LBS and UBS, a licensee
    must limit its signal strength at the border of its GSA to 47 dBV/m.
    *See* 47 C.F.R. § 27.55(a)(4)(ii). Signal strengths below this level
    are permissible and may bleed into adjacent GSAs.

[^53]: Waiver Request at 8.

[^54]: Waiver Request at 8, Reply at i.

[^55]: Waiver Request at 8-9.

[^56]: Waiver Request at 8, Consolidated Reply at 15.

[^57]: Clearwire Opposition at 7, 9.

[^58]: *See* *id*.

[^59]: *Id*.

[^60]: Reply at 16, citing Clearwire Corporation, Securities and
    Exchange Commission Form S-1 (filed Dec. 19, 2006) at 56

[^61]: In the immediate Billings area, Clearwire's BTA authorization
    allows it to access 4 MHz of spectrum on BRS Channel No. 2A. If
    Clearwire could use the 4 MHz channel, it would need at least 26 MHz
    of additional spectrum. If Clearwire needs access to 5 MHz channels,
    they cannot use Channel 2A and would need 30 MHz of spectrum.

[^62]: *See* Clearwire Opposition at 7-8.

[^63]: 47 C.F.R.§ 27.5(i)(1).

[^64]: *See* Clearwire Opposition at 10.

[^65]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5671 ¶ 135.

[^66]: *Id*., 21 FCC Rcd at 5737 ¶ 313.