**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Applications of | *  | File Nos. 0000347849,        |
|                                  | *) | 0000351950, 0000346785,      |
| WINSTAR WIRELESS FIBER CORP.     | ** | 0000346747, 0000347755,      |
|                                  |    | 0000346756, 0000347639,      |
| For Renewal of Licenses to       | *  | 0000348427, 0000345891,      |
| Provide Microwave Service In the | *) | 0000348363, 0000351124,      |
| 38.6 -- 40.0 GHz Band            | ** | 0000346761, 0000346180,      |
|                                  |    | 0000346779, 0000352808,      |
|                                  | *  | 0000347947, 0000348584,      |
|                                  | *) | 0000346758, 0000346769,      |
|                                  | ** | 0000347479, 0000351147,      |
|                                  |    | 0000346748, 0000346782,      |
|                                  | *  | 0000348460, 0000346766       |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 18, 2003 Released: November 28, 2003**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# introduction

1.  We have before us twenty-five renewal applications filed by Winstar
    Wireless Fiber Corp. (Winstar) for point-to-point microwave service
    and private operational fixed (POF) microwave service in the 38.6 --
    40.0 GHz Band (39 GHz band). For the reasons discussed below, we
    grant Winstar's above-captioned applications for renewal of the 39
    GHz band licenses set forth in the attached Appendix.

# background

## Microwave Licensing Framework

2.  Prior to August of 1996, point-to-point microwave services were
    licensed under Part 21 while POF services were licensed under Part
    94 of the Commission's Rules. Under Part 21, the Commission issued
    licenses for a period up to ten years.[^1] Licensees who received
    authorizations under Part 21 received eighteen months to construct
    their facilities.[^2] In contrast, under Part 94, generally, the
    Commission issued licenses for a term of five years from the date of
    original issuance, modification, or renewal.[^3] Licensees who
    received authorizations under Part 94 received twelve months to
    construct their facilities.[^4]

3.  Effective August 1, 1996, the Commission consolidated the microwave
    licensing rules under Part 101 of the Commission's Rules. As a
    result of this consolidation, the Commission adopted a ten-year
    license term for all Part 101 licensees, including those for POF
    services, issued on or after August 1, 1996.[^5] POF licenses issued
    before August 1, 1996 were subject to a fixed expiration date of
    February 1, 2001.[^6] In addition, the Commission adopted an
    eighteen-month construction period for all Part 101 licenses.[^7] As
    a result, Part 101 licensees, including those licensees with a
    February 1, 2001 license expiration date, were required to construct
    and place in operation each station authorized under Part 101 within
    eighteen months of the initial dates of their respective license
    grants.[^8]

4.  In 1997, the Commission adopted a renewal expectancy and modified
    the performance requirements for 39 GHz band microwave
    licensees.[^9] Specifically, the Commission required 39 GHz band
    licensees to demonstrate "substantial service" in their license
    areas in connection with applications for license renewal.[^10]
    Although the Commission declined to exempt the incumbent 39 GHz band
    licensees from the \"substantial service\" renewal standard,[^11]
    the Commission sought to provide 39 GHz band licensees with a
    significant degree of flexibility in meeting their performance
    requirement.[^12] The Commission was concerned that an inflexible
    performance requirement might impair innovation and unnecessarily
    limit the types of service offerings 39 GHz band licensees can
    provide.[^13] Thus, the Commission determined that permitting
    licensees to demonstrate that they are meeting the goals of a
    performance requirement with a showing tailored to their particular
    type of operation avoids this pitfall.[^14]

5.  The Commission also noted that licensees must receive a reasonable
    amount of time to establish a viable operation, develop market
    plans, secure necessary financing, develop and incorporate new
    technology in their systems, accommodate equipment manufacturers'
    production schedules and build a customer base to meet a performance
    requirement.[^15] Although the Commission rejected several proposals
    as restrictive, burdensome and unnecessarily limiting licensees'
    service options,[^16] the Commission provided a "safe harbor"
    example of a substantial service showing as "four links per million
    population within a service area."[^17]

## 39 GHz Band Renewal Applications 

6.  The authorizations of POF 39 GHz band licensees issued before August
    1, 1996 expired on February 1, 2001.[^18] On August 15, 2001, the
    Division granted 321 renewal applications filed by such
    licensees.[^19] In granting those applications, the Division
    concluded that the stations in question provided substantial service
    because the licensee operated at least one link for each 250,000
    people located within its service area.[^20]

7.  On March 7, 2002, the Division granted another 102 renewal
    applications for 39 GHz band licenses.[^21] In the *Renewal Grant
    Order*, the Division noted that, although the substantial service
    standard was based on a ten-year license term, licensees actually
    had less than one-third of a full ten-year license term to satisfy
    the substantial service requirement.[^22] We evaluated the
    substantial service submissions in light of the reduced amount of
    time that these licensees received to comply with the substantial
    service requirement. Our review of the applications focused on
    whether the licensees were developing the spectrum they had been
    assigned and using the spectrum to provide service to the
    public.[^23] The applications granted resulted in two
    categories: (1) licensees operating at fifty percent or better of
    the Commission "safe harbor," and (2) licensees demonstrating
    significant construction. With respect to licenses in the first
    category, we found that licensees established viable operations,
    developed market plans, secured needed financing, accommodated
    equipment manufacturers' production schedules and built a customer
    base in each market providing service at a level of about one link
    per 500,000 population.[^24] With respect to licensees in the second
    category, we indicated that those who constructed at least ten links
    within their service area during the course of the shortened period
    showed that they were making substantial use of the spectrum, as
    opposed to warehousing the spectrum. Moreover, we believed that,
    given the truncated license period to which they were subject,
    licensees operating ten or more links in their service area showed
    the provision of substantial service.[^25]

## Winstar's Applications for Renewal

8.  Winstar filed the twenty-five applications listed in the Appendix
    over the course of four days in January 2001. Winstar appended a
    ten-page attachment with each renewal application. For the most
    part, each attachment is identical and consists of a description of
    the company and its broadband network. Included therein is a
    description of a company-wide financial overview, the company's
    network (including Winstar's end-to-end network architecture,
    switching and data centers, building access rights, customer traffic
    on the network, network and customer support, and Winstar
    International), Winstar's services (voice, internet and data
    transport, web design and hosting, on-line business content and
    applications, application service provider, vertical solutions),
    advertising and sales information, and a description of its
    commitment to community service. With respect to each station for
    which it seeks renewal, each respective attachment provided
    estimated population and number of links in service as follows:

+-------------+------------------------+--------------+---------------+
| **Call      | **Market**             | *            | **Number of   |
| Sign**      |                        | *Approximate | Links**       |
|             |                        | Popul        |               |
|             |                        | ation**[^26] | **in          |
|             |                        |              | Service**     |
+-------------+------------------------+--------------+---------------+
| WPJE537     | Rockford, Illinois     | 629,000      | one           |
+-------------+------------------------+--------------+---------------+
| WMT603      | Buffalo, New York      | 1,237,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMT604      | Phoenix, Arizona       | 2,682,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMT672      | Memphis, Tennessee     | 1,097,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMT817      | Richmond, Virginia     | 1,043,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMT822      | Norfolk, Virginia      | 1,714,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMW290      | Raleigh-Durham, North  | 1,199,000    | two           |
|             | Carolina               |              |               |
+-------------+------------------------+--------------+---------------+
| WPJC609     | Jackson, Mississippi   | 507,000      | one           |
+-------------+------------------------+--------------+---------------+
| WPJC613     | Battle Creek, Michigan | 1,182,000    | one           |
+-------------+------------------------+--------------+---------------+
| WPJC615     | Toledo, Ohio           | 839,000      | one           |
+-------------+------------------------+--------------+---------------+
| WPJC617     | Columbia, South        | 775,000      | one           |
|             | Carolina               |              |               |
+-------------+------------------------+--------------+---------------+
| WPJC619     | Poughkeepsie, New York | 577,000      | one           |
+-------------+------------------------+--------------+---------------+
| WPJD394     | Greensboro, North      | 1,150,000    | two           |
|             | Carolina               |              |               |
+-------------+------------------------+--------------+---------------+
| WPJC569     | Norfolk, Virginia      | 1,714,000    | one           |
+-------------+------------------------+--------------+---------------+
| WPJC572     | Las Vegas, Nevada      | 1,058,000    | one           |
+-------------+------------------------+--------------+---------------+
| WPJC577     | Salt Lake City, Utah   | 1,430,000    | two           |
+-------------+------------------------+--------------+---------------+
| WPJC578     | Tampa, Florida         | 1,650,000    | one           |
+-------------+------------------------+--------------+---------------+
| WPJD862     | Poughkeepsie, New York | 1,450,000    | one           |
+-------------+------------------------+--------------+---------------+
| WPJD865     | Rockford, Illinois     | 629,000      | one           |
+-------------+------------------------+--------------+---------------+
| WPJE531     | Poughkeepsie, New York | 1,427,000    | one           |
+-------------+------------------------+--------------+---------------+
| WPJE539     | Wichita, Kansas        | 614,000      | one           |
+-------------+------------------------+--------------+---------------+
| WMW520      | Memphis, Tennessee     | 1,183,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMW521      | Omaha, Nebraska        | 742,000      | one           |
+-------------+------------------------+--------------+---------------+
| WMW861      | New Orleans, Louisiana | 1,518,000    | one           |
+-------------+------------------------+--------------+---------------+
| WMW862      | Richmond, Virginia     | 1,191,000    | two           |
+-------------+------------------------+--------------+---------------+

In the description portion of each attachment, Winstar also provided
identical information concerning the company as a whole. Winstar
indicated that it took the following actions:

-   Spent more than \$3.2 billion on capital expenditures in connection
    with the build out of Winstar's broadband network

-   Hired over 4,700 employees to design, construct, operate, and market
    its wireless and wireline facilities, services, and products

-   Deployed over 3,000 fixed wireless links, constructed over 200
    operational hub sites, and deployed over thirty-five voice switches
    and 135 data switches

-   Developed and deployed state-of-the-art point-to-multipoint
    equipment with Hughes Network Systems, P-Com, and Siemens

-   Acquired 16,000 route miles of long-haul fiber and 6,000 route miles
    of intracity fiber networks throughout the U.S.

-   Built seven regional data centers, three network operation control
    centers, and a national customer satisfaction center

-   Established a significant Internet and e-business presence through
    the acquisition of networks and the development of key commercial
    products and service offerings, including Office.com, one of the
    leading business web sites

-   Engaged in national marketing campaigns for Winstar services and
    products

9.  Winstar also provided the following information detailing how the
    captioned stations have been incorporated within Winstar's national
    organization:

    **Table 1**

+-------------+-----------------------+------------------+-------------+
| **Call      | **Market**            | **               | **Number of |
| Sign**      |                       | Branch(Division) | Employees** |
|             |                       | Incorporated     |             |
|             |                       | Into**           | **(         |
|             |                       |                  | Location)** |
+-------------+-----------------------+------------------+-------------+
| WPJE537     | Rockford, Illinois    | Chicago (North)  | 190         |
|             |                       |                  | (Illinois)  |
+-------------+-----------------------+------------------+-------------+
| WMT603      | Buffalo, New York     | New York Metro   | 650 (New    |
|             |                       | (North)          | York)       |
+-------------+-----------------------+------------------+-------------+
| WMT604      | Phoenix, Arizona      | Phoenix (West)   | 75          |
|             |                       |                  | (Phoenix)   |
+-------------+-----------------------+------------------+-------------+
| WMT672      | Memphis, Tennessee    | Atlanta (South)  | 5           |
|             |                       |                  | (Tennessee) |
+-------------+-----------------------+------------------+-------------+
| WMT817      | Richmond, Virginia    | Wash             | 2,000       |
|             |                       | ington-Baltimore | (Virginia)  |
|             |                       | (South)          |             |
+-------------+-----------------------+------------------+-------------+
| WMT822      | Norfolk, Virginia     | Wash             | 2,000       |
|             |                       | ington-Baltimore | (Virginia)  |
|             |                       | (South)          |             |
+-------------+-----------------------+------------------+-------------+
| WMW290      | Raleigh-Durham, North | Atlanta (South)  | Not         |
|             | Carolina              |                  | Provided    |
+-------------+-----------------------+------------------+-------------+
| WPJC609     | Jackson, Mississippi  | Houston (South)  | Not         |
|             |                       |                  | Provided    |
+-------------+-----------------------+------------------+-------------+
| WPJC613     | Battle Creek,         | Detroit (North)  | 70          |
|             | Michigan              |                  | (Michigan)  |
+-------------+-----------------------+------------------+-------------+
| WPJC615     | Toledo, Ohio          | Detroit (North)  | 260 (Ohio)  |
+-------------+-----------------------+------------------+-------------+
| WPJC617     | Columbia, South       | Atlanta (South)  | Not         |
|             | Carolina              |                  | Provided    |
+-------------+-----------------------+------------------+-------------+
| WPJC619     | Poughkeepsie, New     | New York Metro   | 650 (New    |
|             | York                  | (North)          | York)       |
+-------------+-----------------------+------------------+-------------+
| WPJD394     | Greensboro, North     | Atlanta (South)  | Not         |
|             | Carolina              |                  | Provided    |
+-------------+-----------------------+------------------+-------------+
| WPJC569     | Norfolk, Virginia     | Wash             | 2,000       |
|             |                       | ington-Baltimore | (Virginia)  |
|             |                       | (South)          |             |
+-------------+-----------------------+------------------+-------------+
| WPJC572     | Las Vegas, Nevada     | Los              | Not         |
|             |                       | Angeles-Orange   | Provided    |
|             |                       | County (West)    |             |
+-------------+-----------------------+------------------+-------------+
| WPJC577     | Salt Lake City, Utah  | Phoenix (West)   | 4 (Salt     |
|             |                       |                  | Lake City)  |
+-------------+-----------------------+------------------+-------------+
| WPJC578     | Tampa, Florida        | Miami-Tampa-St.  | 45          |
|             |                       | Petersburg       | (Florida)   |
|             |                       | (South)          |             |
+-------------+-----------------------+------------------+-------------+
| WPJD862     | Poughkeepsie, New     | New York Metro   | 650 (New    |
|             | York                  | (North)          | York)       |
+-------------+-----------------------+------------------+-------------+
| WPJD865     | Rockford, Illinois    | Chicago (North)  | 190         |
|             |                       |                  | (Illinois)  |
+-------------+-----------------------+------------------+-------------+
| WPJE531     | Poughkeepsie, New     | New York Metro   | 650 (New    |
|             | York                  | (North)          | York)       |
+-------------+-----------------------+------------------+-------------+
| WPJE539     | Wichita, Kansas       | St. Louis-Kansas | Not         |
|             |                       | City (South)     | Provided    |
+-------------+-----------------------+------------------+-------------+
| WMW520      | Memphis, Tennessee    | Atlanta (South)  | 5           |
|             |                       |                  | (Tennessee) |
+-------------+-----------------------+------------------+-------------+
| WMW521      | Omaha, Nebraska       | St. Louis-Kansas | Not         |
|             |                       | City (South)     | Provided    |
+-------------+-----------------------+------------------+-------------+
| WMW861      | New Orleans,          | Houston (South)  | Not         |
|             | Louisiana             |                  | Provided    |
+-------------+-----------------------+------------------+-------------+
| WMW862      | Richmond, Virginia    | Wash             | 2,000       |
|             |                       | ington-Baltimore | (Virginia)  |
|             |                       | (South)          |             |
+-------------+-----------------------+------------------+-------------+

10. On May 13, 2002, the Division's Policy and Rules Branch, pursuant to
    Section 308(b) of the Communications Act of 1934, as amended,[^27]
    directed Winstar to provide further information regarding
    twenty-four pending applications for renewal of stations in the
    Common Carrier Microwave Radio Service in order to determine if
    Winstar has provided substantial service for its stations.[^28]
    Specifically, the Division directed Winstar to:

    1.  describe the competition existing in the market served by the
        stations for services that Winstar, through these stations,
        offers to customers in those markets;

    2.  state whether Winstar constructed any facilities for the
        stations during the license term that later were dismantled; and
        if so, the location of the facilities, the date the facilities
        were constructed and the date they were dismantled, and
        reason(s) the facilities were dismantled;

    3.  describe efforts Winstar has made to obtain customers in the
        market serviced by the stations during the license term; and

    4.  provide any other information specific to the market served by
        the stations which Winstar believed showed that Winstar provided
        substantial service during the last license term.[^29]

## Winstar's Response to the 308(b) Letter

11. On June 12, 2002, Winstar responded to the request for
    information.[^30] In responding, Winstar provided information
    concerning the twenty-five pending license renewal applications
    listed in the Division's letter and provided the requested
    information for another station's pending renewal application not
    listed in the *Section 308(b) Letter*.[^31] Winstar expressed its
    belief that it had provided substantial service regarding the
    twenty-five stations at issue.[^32] Winstar's response consisted of
    system-wide information and some station-specific information.
    Below, we analyze Winstar's specific responses to the four questions
    posed in the *308(b) Letter*.

12. *Existing competition in the market.* Winstar stated that, in each
    of the twenty-five markets at issue, it competes with the incumbent
    local exchange carrier ("ILEC") and, in many of the markets, it also
    competes with competitive local exchange carriers ("CLECs") and
    private line carriers.[^33] Winstar said ILECs know, at a minimum,
    the identity of carriers operating in different areas due to
    ILEC-CLEC interconnection arrangements; but where Winstar does not
    operate its own switches, it does not have similar arrangements with
    other CLECs and, thus, cannot provide the Commission with a thorough
    response to the requested information beyond noting that Winstar
    competes with at least the ILEC in each market.[^34] Winstar stated
    it operates its own switches in Phoenix and Tampa, and, thus, listed
    its CLEC competitors in those markets.[^35] It also said it could
    not determine precisely which CLECs and other competitive providers
    currently provide which services in other markets.[^36]

13. *Construction of facilities during the license term that were later
    dismantled.* Winstar provided the following information regarding
    six stations.

-   [Stations WPJE537 and WPJD865:]{.underline} Leases at two locations
    were cancelled for services using both license channels, and thus,
    effectively dismantled April 2002. New leases were being negotiated,
    and operational links were expected to be restored in July 2002.

-   [Station WMT603:]{.underline} The original facilities were
    constructed in December 2000, at one specified address and
    decommissioned in May 2002, to re-engineer to expand the link to an
    additional facility. The reengineered facilities were scheduled to
    go on line later in June 2002, at two specified addresses.

-   [Station WPJC572]{.underline}: Facilities located at a specified
    address, constructed in April 1997, were dismantled two weeks prior
    to the *Winstar Response to 308(b) Letter* in relation to a building
    lease negotiation and were expected to be reinstalled later in June
    2002.

-   [Station WPJC577]{.underline}: The facilities were moved from
    various specified locations to their current specified locations in
    May due to customer service issues.

-   [Station WMW862]{.underline}: The facilities were located at one set
    of specified locations since December 2000, and moved to another set
    of specified locations in May 2002.[^37]

14. Winstar also stated that with the exception of five stations
    (Stations WPJC609, WPJC615, WPJC617, WPJD394, and WPJE539) the
    rectangular service areas at issue have been reduced to a "sliver"
    shaped area due to Winstar's holding of largely overlapping economic
    area (EA) licenses that it won in the intervening 39 GHz
    auction.[^38] Thus, to conserve cash, in some cases, it might have
    allowed some leases to become inactive and equipment to be removed
    where excess equipment and leases existed and customer service
    disruption was not an issue.[^39] Moreover, it said, service areas
    potentially affected are insignificant, size-wise, due to Winstar's
    holding of the overlapping EA licenses, and its national sales force
    and national engineering operations can provide links in those areas
    if customer orders develop.[^40]

15. *Efforts made to obtain customers in the market serviced by the
    stations during the license term.* Winstar indicated it has sought
    to generate revenues by engaging in diligent sales efforts to secure
    customers by employing a specialized national sales team responsible
    for all markets, including those at issue. Winstar stated that it
    has engaged in national television and radio advertising campaigns,
    launched the Winstar Airship nationwide promotional tour from 2000
    to 2001, marketed its fixed wireless services on its website and in
    a variety of other promotional brochures and materials.[^41] Winstar
    further said it has maintained sales forces, a national call center,
    engineering deployment and provisioning teams with subcontractors.
    Additionally, Winstar stated that, on December 19, 2001, IDT, Inc.
    purchased substantially all assets of Winstar Communications, Inc.,
    and per a management agreement and other arrangements, operates the
    company. Winstar also indicated new marketing, sales, and other
    personnel had been added, and it still were actively marketing and
    providing its facilities-based broadband, switched and non-switched,
    local, long-distance, and private connectivity services.[^42]

16. *Other information intended to show provision of substantial service
    during the previous license term.* Winstar stated that, as described
    in its applications for renewal of its licenses, it had raised and
    invested significant capital to construct and operate an end-to-end
    facilities-based broadband network. It contended that its investment
    in a national network combined with the facilities it has
    constructed in many of its licensed markets demonstrate substantial
    service warranting license renewal.[^43]

## Winstar's Response to Request for Supplemental Information

17. On November 3, 2003, Winstar responded to a Commission staff request
    for supplemental information concerning its 39 GHz band license
    renewal applications that remained pending.[^44] First, Winstar
    corrected its June 2002 letter to indicate that all of its
    twenty-five 39 GHz band license areas up for renewal at this time,
    not just twenty of the twenty-five, consist of the residual parts of
    rectangular service areas that are not covered by Winstar's
    overlapping EA authorizations.[^45] The company provided a chart
    showing the population of those sliver-shaped residual areas and the
    number of links provided by Winstar throughout the rectangular
    service areas under which the slivers were originally licensed. That
    information is reproduced in pertinent part below:

    **Table 2**

+-------------+------------------------+--------------+---------------+
| **Call      | **Market**             | *            | **Links in    |
| Sign**[^46] |                        | *Approximate | Service**     |
|             |                        | Population   |               |
|             |                        | of Residual  | **Throughout  |
|             |                        | "Sliver"**   | Rectangular   |
|             |                        |              | License       |
|             |                        |              | Area**        |
+-------------+------------------------+--------------+---------------+
|             |                        |              |               |
+-------------+------------------------+--------------+---------------+
| WPJE537     | Rockford, Illinois     | 3,000        | one           |
+-------------+------------------------+--------------+---------------+
| WPJD865     | Rockford, Illinois     | 20,000       | one           |
+-------------+------------------------+--------------+---------------+
| WMT603      | Buffalo, New York      | 25,000       | one           |
+-------------+------------------------+--------------+---------------+
| WMT604      | Phoenix, Arizona       | 1,000        | one           |
+-------------+------------------------+--------------+---------------+
| WMW520      | Memphis, Tennessee     | 45,000       | one           |
+-------------+------------------------+--------------+---------------+
| WMT672      | Memphis, Tennessee     | 17,000       | one           |
+-------------+------------------------+--------------+---------------+
| WMW862      | Richmond, Virginia     | 45,000       | two           |
+-------------+------------------------+--------------+---------------+
| WMT817      | Richmond, Virginia     | 15,000       | one           |
+-------------+------------------------+--------------+---------------+
| WPJC569     | Norfolk, Virginia      | 8,500        | one           |
+-------------+------------------------+--------------+---------------+
| WMT822      | Norfolk, Virginia      | 8,500        | one           |
+-------------+------------------------+--------------+---------------+
| WMW290      | Raleigh-Durham, North  | 40,000       | two           |
|             | Carolina               |              |               |
+-------------+------------------------+--------------+---------------+
| WPJC609     | Jackson, Mississippi   | 11,000       | one           |
+-------------+------------------------+--------------+---------------+
| WPJC613     | Battle Creek, Michigan | 20,000       | one           |
+-------------+------------------------+--------------+---------------+
| WPJC615     | Toledo, Ohio           | less         | one           |
|             |                        | than[^47]    |               |
|             |                        | 110,000      |               |
+-------------+------------------------+--------------+---------------+
| WPJC617     | Columbia, South        | 43,000       | one           |
|             | Carolina               |              |               |
+-------------+------------------------+--------------+---------------+
| WPJC619     | Poughkeepsie, New York | 8,000        | one           |
+-------------+------------------------+--------------+---------------+
| WPJD862     | Poughkeepsie, New York | 3,500        | one           |
+-------------+------------------------+--------------+---------------+
| WPJE531     | Poughkeepsie, New York | 3,500        | one           |
+-------------+------------------------+--------------+---------------+
| WPJD394     | Greensboro, North      | 16,000       | two           |
|             | Carolina               |              |               |
+-------------+------------------------+--------------+---------------+
| WPJC572     | Las Vegas, Nevada      | 5,000        | one           |
+-------------+------------------------+--------------+---------------+
| WPJC577     | Salt Lake City, Utah   | 100          | two           |
+-------------+------------------------+--------------+---------------+
| WPJC578     | Tampa, Florida         | 5,000        | one           |
+-------------+------------------------+--------------+---------------+
| WPJE539     | Wichita, Kansas        | 600          | one           |
+-------------+------------------------+--------------+---------------+
| WMW521      | Omaha, Nebraska        | 60,000       | one           |
+-------------+------------------------+--------------+---------------+
| WMW861      | New Orleans, Louisiana | 30,000       | one           |
+-------------+------------------------+--------------+---------------+

# Discussion

18. We note, as an initial matter, that regardless of our disposition of
    this subject application, with respect to each of the licenses in
    question, Winstar would still be able to operate within most of the
    existing service area because it holds an overlapping EA license for
    most of the area in question. Thus, the pertinent question is
    whether Winstar should be allowed to continue operating in those
    "slivers" that are outside the service areas of the EA licensees. In
    making that determination, we believe it is appropriate to evaluate
    Winstar's level of service relative to the population within those
    residual slivers. As noted above, the Commission has stated that
    four 39 GHz links per million population within a service area -- or
    one link per 250,000 population -- would qualify for "safe harbor"
    treatment denoting substantial service sufficient for renewal
    expectancy.[^48] All of the Winstar sliver areas in question have
    populations far less than a quarter million. Thus, to the extent
    that Winstar is operating at least one link under each license, we
    believe it has adequately demonstrated that it is providing
    substantial service under each license. This conclusion is
    consistent with our decision to grant those applications meeting the
    Commission's safe harbor and the *Renewal Grant Order's* flexible
    approach to substantial service.[^49]

19. Further, so long as Winstar demonstrates that a link is being
    operated under the authority of the license in question -- i.e.,
    that the link is located within the rectangular service area
    authorized by the original license -- it should not be required to
    demonstrate that the individual link is physically located within
    the sliver. The Commission envisioned a flexible substantial service
    standard that would be inclusive as opposed to exclusive.[^50] We
    have previously noted that provision of 39 GHz band wireless local
    loop services "changes constantly to accommodate the unique and
    varying demands of customers" and that such links are often provided
    as a temporary solution to precede deployment of optical fiber.[^51]
    Service providers often deploy such links in response to requests
    for service from specific customers, and later remove the wireless
    links once fiber is deployed. Thus, service providers use the 39 GHz
    band in a dynamic, customer-responsive fashion to meet service needs
    when they arise, and can quickly redeploy that equipment as customer
    needs evolve.

# conclusion and ordering clauses

20. For the reasons set forth above, we conclude that Winstar has
    demonstrated, as required by Section 101.17 of the Commission's
    rules, 47 C.F.R. § 101.17, that it is providing substantial service
    in the markets that are the subject of the renewal applications
    listed in the Appendix.

21. Accordingly, IT IS ORDERED, that, pursuant to Sections 4(i) and
    308(b) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i) 308(b), and Section 101.17 of the Commission\'s Rules, 47
    C.F.R. § 101.17, that the Licensing and Technical Analysis Branch,
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau SHALL PROCESS the applications for renewal
    in the common carrier microwave service contained in the Appendix to
    this *Memorandum Opinion and Order*.

22. 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 {#federal-communications-commission .unnumbered}

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

> **APPENDIX**
>
> [File No.]{.underline} [Call Sign]{.underline} [Location]{.underline}
>
> 0000347849 WPJE537 Rockford, Illinois

0000351950 WMT603 Buffalo, New York

0000346785 WMT604 Phoenix, Arizona

0000346747 WMT672 Memphis, Tennessee

0000347755 WMT817 Richmond, Virginia

0000346756 WMT822 Norfolk, Virginia

0000347639 WMW290 Raleigh-Durham, North Carolina

0000348427 WPJC609 Jackson, Mississippi

0000345891 WPJC613 Battle Creek, Michigan

0000348363 WPJC615 Toledo, Ohio

0000351124 WPJC617 Columbia, South Carolina

0000346761 WPJC619 Poughkeepsie, New York

0000346180 WPJD394 Greensboro, North Carolina

0000346779 WPJC569 Norfolk, Virginia

0000352808 WPJC572 Las Vegas, Nevada

0000347947 WPJC577 Salt Lake City, Utah

0000348584 WPJC578 Tampa, Florida

0000346758 WPJD862 Poughkeepsie, New York

0000346769 WPJD865 Rockford, Illinois

0000347479 WPJE531 Poughkeepsie, New York

0000351147 WPJE539 Wichita, Kansas

0000346748 WMW520 Memphis, Tennessee

0000346782 WMW521 Omaha, Nebraska

0000348460 WMW861 New Orleans, Louisiana

0000346766 WMW862 Richmond, Virginia

[^1]: *See* 47 C.F.R. § 21.45 (1995) (point-to-point microwave radio
    station licenses issued for a period not to exceed 10 years. Unless
    otherwise specified by the Commission, the expiration of regular
    point-to-point microwave licenses was on February 1 in the year of
    expiration.

[^2]: *See* Reorganization and Revision of Parts 1, 2, 21, and 94 of the
    Rules to Establish a New Part 101 Governing Terrestrial Microwave
    Fixed Radio Services, WT Docket No. 94-148, *Report and Order*, 11
    FCC Rcd 13449, 13463-4 ¶ 31 (*Part 101 R&O*).

[^3]: *See* 47 C.F.R. § 94.39(a) (1995) (The Commission could issue a
    license with a shorter term of one to five years could be applied to
    permit the orderly scheduling of renewal applications).

[^4]: *Part 101 R&O*, 11 FCC Rcd at 13463-4 ¶ 31.

[^5]: *See* Amendment of the Commission's Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, *Report and Order and Second Notice of
    Proposed Rulemaking*, 12 FCC Rcd 18600, 18620-18621 ¶ 36 (1997) (*39
    GHz R&O)*.

[^6]: *Id*.

[^7]: *Part 101 R&O*, 11 FCC Rcd at 13464 ¶ 33.

[^8]: *See* 47 C.F.R. § 101.63(a) (1996); *See also* *39 GHz R&O*, 12
    FCC Rcd at 18622 ¶ 39.

[^9]: *See 39 GHz R&O*, 12 FCC Rcd at 18626 ¶ 49.

[^10]: *See* 47 C.F.R. § 101.17.

[^11]: *See 39 GHz R&O*, 12 FCC Rcd at 18624 ¶ 46.

[^12]: *Id*. at ¶ 42.

[^13]: *Id*.

[^14]: *Id*.

[^15]: *Id*. at 18625 ¶ 47--48.

[^16]: *Id*. at 18623-24 ¶ 43--45.

[^17]: *Id*. at 18624 ¶ 46. We note that, although the Commission did
    not use the exact words "safe harbor" in the 39 GHz band context, we
    believe the Commission intended for this example to serve as an
    example of a "safe harbor." This determination is consistent with
    similar examples the Commission has provided to licensees in other
    services. Amendments to Parts 1, 2, 87, and 101 of the Commission's
    Rules to License Fixed Services at 24 GHz, WT Docket No. 99-327,
    *Report and Order*, 15 FCC Rcd 16,934, 16951-2 ¶ 38 (2000);
    Amendment of Part 95 of the Commission's Rules to Provide Regulatory
    Flexibility in the 218-219 MHz Service, WT Docket No. 98-169,
    *Report and Order and Memorandum Opinion and Order*, 15 FCC Rcd
    1497, 1537-38 ¶ 70; Amendment of the Commission's Rules Concerning
    Maritime Communications, PR Docket No. 92-257, *Third Report and
    Order and Memorandum Opinion and Order*, 13 FCC Rcd 19,853, 19870 ¶
    34 (1998); Amend Parts 1, 2, 21, and 25 of the Commission's Rules to
    Redesignate the 27.5-29.5 GHz Frequency Band, to Reallocate the 29.5
    -- 30.0 GHz Frequency Band, to Establish Rules and Policies for
    Local Multipoint Distribution Service and for Fixed Satellite
    Services, CC Docket No. 92-297, *Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking*, 12 FCC
    Rcd 12,545, 12660-1 ¶ 270 (1997); Amendment of the Commission's
    Rules to Establish Part 27, the Wireless Communications Service, GN
    Docket No. 96-228, *Report and Order*, 12 FCC Rcd 10,785, 10843-4 ¶
    113 (1997).

[^18]: *See* note 8 *supra.*

[^19]: *See* Wireless Telecommunications Service Grants 321 Renewals in
    the CF Radio Service, *Public Notice*, 16 FCC Rcd 15358 (WTB 2001)
    (*Renewal Grant Public Notice*).

[^20]: *Id.*

[^21]: Renewal of Licenses to Provide Microwave Service In the 38.6 --
    40.0 GHz Band, 17 FCC Rcd 4404 (WTB PSPWD 2002) (*Renewal Grant
    Order*).

[^22]: *Id*. at 17 FCC Rcd 4406 ¶ 8.

[^23]: *See 39 GHz R&O*, 12 FCC Rcd at 18622 ¶ 39.

[^24]: *Renewal Grant Order,* 17 FCC Rcd at 4407 ¶ 10.

[^25]: *Id.* at *¶* 11.

[^26]: Differences in the approximate population numbers of the
    Poughkeepsie, New York market are due to differences in license
    coverage area.

[^27]: *See* 47 U.S.C. § 308(b).

[^28]: *See* Letter to Joseph M. Sandri, Jr. from John J. Schauble,
    Chief, Policy and Rules Branch, Public Safety and Private Wireless
    Division (PSPWD) (May 13, 2002) (*Section 308(b) Letter*)*.* In
    requesting the information, the request was made for twenty-four
    stations listed in the Appendix, and one of the stations listed in
    the Appendix inadvertently was omitted from the letter.

[^29]: *Section 308(b) Letter* at 2.

[^30]: *See* Letter to Roberto Mussenden, PSPWD, from Brian Finkelstein,
    Chief Executive Officer (June 12, 2002) (*Winstar Response to 308(b)
    Letter*).

[^31]: *Id*. at 1. In short, Winstar indicates it is providing
    information for the twenty-five stations listed in the Appendix.

[^32]: *Id*.

[^33]: *Id*. at 2.

[^34]: *Id*.

[^35]: For the Phoenix market, Winstar lists Adelphia, AT&T, ELI, Qwest,
    Time Warner, and WorldCom; and for the Tampa market, it lists
    Adelphia, Allegiance, Teligent, US LEC, Verizon, and XO
    Communications. *Id*.

[^36]: Winstar indicates general awareness of the fixed service
    operations of XO Communications, Teligent, First Street (assets
    formed partially from the restructured Advanced Radio Telecom), and
    a number of unlicensed operators (such as Air2Lan, *etc*.). *Id*. at
    2-3. Moreover, it says each State public utility commission
    maintains a list of certificated local exchange carriers in each
    state, each one theoretically being able to provide competition with
    Winstar. Further, Winstar sales teams, which have undergone
    substantial transformations as Winstar migrated into and out of
    Chapter 11, report CLEC competition existing in each of Winstar's
    markets from companies such as WorldCom, AT&T, Time Warner Telecom
    and XO Communications. *Id*. at 3.

[^37]: *Id*. at 3.

[^38]: *Winstar Response to 308(b) Letter* at 3-4.

[^39]: *Id*. at 4.

[^40]: *Id*. Winstar notes that for the EA licenses, its substantial
    service showing is not required until 2010. *Id*. at n.2.

[^41]: *Id*.

[^42]: *Id*.

[^43]: *Id*. at 1-2.

[^44]: Letter from Joseph M. Sandri, Jr., Senior Vice President and
    Regulatory Counsel, Winstar Communications, LLC, to Robert
    Mussenden, Federal Communications Commission, Nov. 3, 2003 (November
    2003 Letter). Commission staff requested the additional information
    at an October 8, 2003, meeting with Winstar representatives.

[^45]: *Id.* at 1-2.

[^46]: In the 39 GHz band, the Commission issued a separate license for
    one channel in a rectangular service area, and the service areas
    encompassing a given city were often of different sizes and only
    partially overlapping.

[^47]: Winstar says that 110,000 is the estimated Toledo RSA population.
    It says the sliver population is significantly less but that it has
    not been able to calculate it with precision. November 2003 Letter,
    Exhibit 1at 2.

[^48]: *See* note Error: Reference source not found and accompanying
    text.

[^49]: *See Renewal Grant Public Notice*; *Renewal Grant Order*, 17 FCC
    Rcd at 4406-07 ¶¶ 8-11.

[^50]: *See* *39 GHz R&O*, 12 FCC Rcd at 18623 ¶ 42.

[^51]: Biztel, Inc., *Memorandum Opinion and Order*, 18 FCC Rcd 3308,
    3310-3311 ¶¶ 6 -7 (WTB PSPWD 2003).