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                           Before the
               Federal Communications Commission
                     Washington, D.C. 20554
In the Matter of
PACIFIC MICROWAVE JOINT VENTURE
Request for Waiver of Section 101.701(c) of the
Commission's Rules
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 FCC File No. 0000041472
                             ORDER
   Adopted: June 28, 2000               Released: June 30, 2000
By the Chief, Public Safety & Private Wireless Division, Wireless Telecommunications Bureau:
                        I.  INTRODUCTION
1.     On November 17, 1999, Pacific Microwave Joint Venture (PMJV) filed an application for
requesting Commission consent to the assignment of ten point-to-point common carrier microwave station
licenses from Western Telecommunications, Inc. (Western) to PMJV.   PMJV's application includes a
request for a waiver of Section 101.701(c) of the Commission's Rules, 47 C.F.R.                      
101.701(c).  Section 101.701(c) of the Commission's Rules requires that at least fifty percent of the
customers on a common carrier microwave system used primarily to relay broadcast television signals not
be affiliated with the licensee, and that the usage by such customers constitute at least fifty percent of the
licensee's service (the 50-50 affiliation requirement).  For the reasons set forth herein, we deny the waiver
request.
                         II. BACKGROUND
2.     PMJV intends to use the subject point-to-point common carrier microwave systems currently
owned by Western to relay broadcast television signals to various cable television systems in the areas of
southern Oregon and northern California.  PMJV requests a waiver of the 50-50 affiliation requirement
because a large number of the current customers on the system will be affiliated with PMJV as of the
completion of the proposed transaction.
3.     When the Commission established the 50-50 affiliation requirement, it determined that the
development of common carriers serving the public should not be blocked or inhibited in the common
carrier bands by the presence of persons serving principally their own businesses, given that there are other
frequencies allocated for such activity.  The Commission stressed that it was not in the public interest to
allow persons serving principally their own businesses to "tak[e] up" common carrier frequencies.  The
Commission also stated that it would be inconsistent with the public interest to allow the common carrier
bands to be utilized by those demonstrating no overall public need for use of the bands.
                        III. DISCUSSION
4.     To obtain a waiver of the Commission's Rules, a petitioner must demonstrate either (a) that the
underlying purpose of the rule would not be served or would be frustrated by application in the present
case, and the grant of the requested waiver would be in the public interest; or (b) that, in view of the unique
or unusual or unusual circumstances, application of the rule would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable alternative.
5.     PMJV appears to suggest that a waiver will not compromise the purpose of the 50-50 affiliation
requirement because the stations at issue provide video programming to cable systems in thinly populated
areas which would not be of interest to a common carrier not affiliated with PMJV's customers.  We
believe that a waiver will, indeed, compromise the purpose of the 50-50 affiliation requirement.  The
Commission specifically stressed that common carrier frequencies should not be used by persons serving
principally their own business.  Grant of the requested waiver of the 50-50 affiliation requirement would
enable PMJV to serve principally its own business on the common-carrier frequencies.  We are concerned
that such result potentially would inhibit development of common carriers using these frequencies to serve
the public and PMJV has not demonstrated sufficiently that this is not a likely consequence.  Thus, we
believe that application of the rule to PMJV would serve the underlying purpose of Section 101.701(c) of
the Commission's Rules.
6.     Moreover, we are not persuaded that the population of the region, or the fact that the current
path lengths cover significant distances, constitute unique or unusual circumstances warranting a waiver of
the Commission's Rules.  In fact, many common carrier microwave systems operate outside of large urban
areas.  As a result, the fact that path lengths cover significant distances, and thus would make conversion to
Cable Antenna Relay Service (CARS) or Private Operational Fixed Point-to-Point Microwave Service
(POFS) equipment costly, is not a circumstance unique to PMJV.  Therefore, we are concerned that grant
of a waiver in this case would in effect establish a policy of general applicability.  We are "especially
reluctant to grant a waiver when to do so would 'invite numerous other waiver requests which, if granted,
would effectively circumvent the Commission's rulemaking function.'"  PMJV was, or should have been,
aware that the 50-50 affiliation requirement existed and would apply to its acquisition of Western's
stations.  Consequently, we do not believe that application of the rule would be inequitable or unduly
burdensome in this case.  In addition, contrary to PMJV's statement that it would be in the public interest
to grant the waiver because otherwise its customers would temporarily lose television signals, we believe
that it is possible for PMJV to make the necessary conversions without its customers temporarily losing
television signals.
7.     We also find that PMJV has failed to demonstrate that there are no reasonable alternatives to
utilizing common carrier frequencies to serve its own customers.  PMJV contends that no other options
exist to transmit the television signals if it is unable to use existing equipment.  In this regard, it contends
that conversion to CARS or POFS equipment is not an option because it would be prohibitively expensive
and temporarily deprive its customers of television service.  That these alternatives could cause PMJV to
incur additional equipment costs is not, by itself, sufficient grounds for granting a waiver.  Although
PMJV may find it undesirable to expend additional funds to convert its system in order to comply with the
Commission's Rules, we are not persuaded, based on the record before us, that converting to CARS or
POFS is not a reasonable alternative.   Further, we note that a conversion to CARS or POFS will afford
PMJV the opportunity to upgrade a system that it has described as "old and specialized."  Therefore, we
believe that reasonable alternatives that are consistent with the Commission's Rules and in furtherance of
the public interest are available to PMJV.
                        IV.  CONCLUSION
8.     Based on the record in this proceeding, we find that PMJV has failed to demonstrate that grant
of a waiver of Section 101.701(c) of the Commission's Rules is warranted.  PMJV's waiver request did not
include a sufficient showing pursuant to Section 1.925(b)(3) of the Commission's Rules.  Therefore, we
deny PMJV's request for a waiver of Section 101.701(c).
                      V.  ORDERING CLAUSES
9.     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 1.925 of the Commission's Rules, 47 C.F.R.  1.925,
the Waiver Request filed by Pacific Microwave Joint Venture on November 17, 1999, IS DENIED.
10.    This action is taken pursuant to delegated authority granted under the provisions of Sections
0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331.
                                                  FEDERAL COMMUNICATIONS COMMISSION
                                                                                      D'wana R. Terry
                                                 Chief, Public Safety & Private Wireless Division
                                                 Wireless Telecommunications Bureau