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 Federal  Communications  Commission  DA  03-  3616 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  Applications  of 
 KANNEW  BROADCAST  TECHNOLOGIES 
 For  Renewal  of  License  of  Multichannel  Multipoint  Distribution  Service  Station  WMI878, 
 Augusta,  Maine 
 For  Major  Modification  Of  Multichannel  Multipoint  Distribution  Service 
 Station  WMI878,  Augusta,  Maine 


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 File  No.  BRMD-  20010329AGH 
 File  No.  50826-  CM-  P-  97 
 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  November  12,  2003  Released:  November  13,  2003 
 By  the  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau: 


 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order,  we  address  a  Petition  to  Deny  filed  by  Pegasus  Communications  Portfolio  Holdings,  Inc.  (  Pegasus)  regarding  Multichannel  Multipoint  Distribution 


 Service  (MMDS)  Station  WMI878,  Augusta,  Maine,  licensed  to  Kannew  Broadcast  Technologies  (  Kannew).  1  For  the  reasons  stated  below,  we  grant  the  Pegasus  Petition.  We  also  dismiss  as  moot  a 
 request  for  waiver  of  Section  21.  303(  d)  of  the  Commissions  Rules  filed  by  Kannew  on  August  14,  1997,  as  well  as  the  captioned  applications  filed  by  Kannew.  2 


 II.  BACKGROUND 
 2.  On  April  14,  1993,  the  Commission  granted  a  conditional  license  to  Kannew  for  MMDS  Station  WMI878,  Augusta,  Maine.  According  to  the  terms  of  the  license,  Kannew  was  required  to 


 complete  construction  of  the  station  on  or  before  April  14,  1994.  3  Kannew  filed  a  certification  of 


 1  Petition  to  Deny  Application  for  Renewal  (filed  Aug.  2,  2001)  (Petition). 
 2  Letter  from  Todd  D.  Gray,  Esq.  to  William  F.  Caton,  Acting  Secretary,  Federal  Communications  Commission 
 (filed  Aug.  14,  1997)  (Waiver  Request).  3 
 See  Conditional  License  for  Station  WMI878,  File  No.  BPMD-  8306155  (granted  Apr.  14,  1993). 
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 construction  on  April  21,  1994.  4  On  October  18,  1995,  the  Commission  issued  to  Kannew  a  license  for  Station  WMI878  with  an  expiration  date  of  May  1,  2001.  5 
 3.  In  March  1994,  Kannew  entered  into  a  lease  agreement  with  Micro-  Lite  Television  (Micro-  Lite).  6  Kannew  states  that  Micro-  Lite  apparently  did  not  commence  commercial  service  to  its 
 customers.  7  On  August  14,  1996,  Kannew  terminated  its  agreement  with  Micro-  Lite  because  Micro-  Lite  had  not  fulfilled  its  obligations  under  the  contract.  8  Kannew  states  that  on  September  3,  1996,  it  informed 
 Pegasus,  the  MMDS  authorization  holder  for  the  Waterville-  Augusta,  Maine,  Basic  Trading  Area  (BTA),  of  the  availability  of  the  station  for  lease  or  sale.  9  One  year  later,  on  August  14,  1997,  Kannew  filed  a 
 major  modification  application  seeking  to  change  the  location  of  the  Station  and  simultaneously  filed  a  request  for  waiver  of  the  Commissions  rules  to  permit  the  Station  to  be  off  the  air  until  such  time  as  the 
 Commission  granted  the  pending  major  modification  application.  10  Kannew  represented  that  the  station  would  be  used  within  sixty  days  of  the  grant  of  its  major  modification  application.  11  The  waiver  request 
 remains  pending. 
 4.  On  March  29,  2001,  Kannew  filed  an  application  to  renew  the  license  for  Station  WMI878.  12  That  application  was  accepted  for  filing  on  July  3,  2001.  13  Pegasus  filed  its  petition  to  deny 


 on  August  2,  2001.  14 


 III.  DISCUSSION 
 5.  Pegasus  argues  that  although  Kannew  certified  that  its  station  had  been  constructed,  there  is  no  indication  on  the  record  before  us  that  Station  WMI878  has  ever  been  operated.  15  Pegasus  also 
 argues  that  the  Commission  should  not  grant  a  renewal  application  for  a  station  that  is  not  currently  constructed.  16  Pegasus  also  alleges  that  Kannew  is  warehousing  spectrum  17  and  in  violation  of  the 


 4  Letter  from  Todd  D.  Gray,  counsel  to  Kannew  Broadcast  Technologies,  to  William  F.  Caton,  Acting  Secretary, 
 Federal  Communications  Commission,  Aug.  14,  1997,  at  1.  5 
 License  for  Station  WMI878,  File  No.  BLMD-  9450475,  granted  Oct.  18,  1995.  Pegasus  states  that  the  Commission  forfeited  the  license  after  Kannew  filed  its  certification  of  construction  but  that  the  Commission  later 


 removed  the  forfeiture  when  it  granted  the  license  to  Kannew  for  Station  WMI878  on  October  18,  1995.  The  Commissions  staff  has  been  unable  to  locate  a  forfeiture  notice  in  its  files. 
 6  Petition  at  2,  citing  letter  from  Todd  Gray,  counsel  for  Kannew,  to  William  Caton  dated  Aug.  14,  1997. 
 7  Waiver  Request  at  2. 
 8  Motion  to  Dismiss  and  Opposition  to  Petition  to  Deny  filed  by  Kannew  on  Dec.  17,  2002,  at  2. 
 9  Waiver  Request  at  2. 
 10  See  id.  at  2-  3. 
 11  Id.  at  3. 
 12  File  No.  BRMD-  20010329AGH. 
 13  Mass  Media  Bureau  Instructional  Television  Fixed  Service  Multipoint  Distribution  Service  Accepted  for  Filing, 
 Report  No.  424,  Public  Notice  (rel.  Jul.  3,  2001)  at  53.  14 
 Petition.  Kannew  filed  a  Motion  to  Dismiss  and  Opposition  to  Petition  to  Deny  on  August  15,  2001.  Motion  to  Dismiss  and  Opposition  to  Petition  to  Deny  (filed  Aug.  15,  2001)  (Opposition).  Kannew  filed  a  reply  on  August  23, 


 2001.  Reply  to  Opposition  to  Petition  to  Deny  (filed  Aug.  23,  2001)  (Reply).  15 
 Petition  at  2-  3.  16 
 Petition  at  3-  4. 
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 Commissions  Rules  by  failing  to  give  timely  notice  of  discontinuance  of  service.  18  Kannew  asks  the  Commission  to  dismiss  the  Petition  because  Pegasus  allegedly  lacks  standing  to  file  a  petition  to  deny.  19 
 Kannew  argues  that  a  grant  of  its  major  modification  application  would  be  in  the  public  interest  because  it  has  made  a  firm  commitment  to  build  the  station  once  the  modification  application  is  granted.  20 


 6.  Initially,  we  conclude  that  Pegasus  has  standing  to  file  a  petition  to  deny.  Section  309(  d)(  1)  of  the  Communications  Act,  as  amended,  permits  any  party  in  interest  to  file  a  petition  to 
 deny  any  application.  21  To  establish  standing,  a  petitioner  must  show  (  1)  a  distinct  and  palpable  personal  injury-  in-  fact  that  is  (2)  traceable  to  the  respondent's  conduct  and  (3)  redressable  by  the  relief 
 requested.  22  In  this  case,  we  conclude  that  Pegasus  has  standing  because  if  Kannews  license  were  renewed,  it  would  be  deprived  of  the  opportunity  to  file  an  application  to  use  Kannews  channels.  If  an 
 incumbent  MMDS  license  is  forfeited,  the  BTA  authorization  holder  has  the  exclusive  right  to  apply  for  an  authorization  to  operate  a  station  within  the  area  formerly  served  by  the  incumbent.  23  Pegasus  right  to 
 apply  for  Kannews  channels  in  case  of  forfeiture  gives  it  a  palpable  interest  in  the  status  of  Kannews  license. 


 7.  We  conclude  that  Kannews  license  forfeited  as  of  May  21,  1995  because  Station  WMI878  never  provided  service  to  the  public.  The  express  language  of  Section  21.303(  d)  of  the 
 Commissions  Rules  requires  the  licensee  to  take  one  of  three  actions  if  any  radio  frequency  should  not  be  used  to  render  any  service  as  authorized  during  a  consecutive  period  of  twelve  months  at  any  time  after 
 construction  is  completed.  .  .  .  24  The  three  options  are  (1)  submitting  its  station  license  for  cancellation,  (2)  filing  an  application  for  modification  of  the  station  license  to  delete  the  unused  frequency,  or  (3) 
 requesting  a  waiver  pursuant  to  Section  21.303(  d)(  3).  25  Significantly,  prior  to  the  adoption  of  Section  21.303(  d),  the  Commissions  Rules  did  not  require  licensees  to  relinquish  unused  frequencies.  26  The 
 Commission  found  that,  [  i]  n  addition  to  preventing  others  from  using  the  spectrum,  this  results  in  the  Commission  being  unable  to  discern  when  spectrum  is  not  being  used  or  is  being  underutilized.  27 
 Therefore,  the  Commission  adopted  Section  21.303(  d)  to  promote  the  efficient  use  of  the  spectrum  by  requiring  licensees  to  submit  licenses  covering  unused  spectrum  to  the  Commission  for  cancellation.  28 


 8.  In  the  Waiver  Request,  Kannew  argues  that  it  rendered  service  by  leasing  the  stations  capacity  to  MicroLite.  29  Contrary  to  that  argument,  a  licensee  that  enters  into  a  channel  lease  agreement 


 17  Id.  at  4-  5. 
 18  Id. 
 19  Opposition  at  3-  5. 
 20  Id.  at  5-  6. 
 21  47  U.  S.  C.    309(  d)(  1). 
 22  See  Weblink  Wireless,  Inc.,  Memorandum  Opinion  and  Order,  17  FCC  Rcd  24642,  2464_    11  (WTB  2002). 
 23  47  C.  F.  R.    21.932(  c). 
 24  47  C.  F.  R.    21.303(  d). 
 25  See  47  C.  F.  R.    21.  303(  d)(  1)-(  3). 
 26  See  Revision  of  Part  21  of  the  Commissions  Rules,  Report  and  Order,  2  FCC  Rcd  5713,  5724    82  (1987)  (Part 
 21  R&  O)).  27 
 Id.  28 
 See  id.  29 
 Waiver  Request  at  2. 
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 assumes  the  risk  of  license  cancellation  if  the  third  party  fails  or  ceases  to  provide  service.  30  We  note  that  Kannew  had  twelve  months  to  work  out  alternative  arrangements  and/  or  ensure  that  the  stations  facilities 
 were  used  to  provide  service.  In  accordance  with  Section  21.303(  d),  Kannew  had  regulatory  options  available  to  it  if  it  desired  to  retain  the  station  license  -  for  example,  timely  request  a  waiver  pursuant  to 
 Section  21.303(  d)(  3).  31  In  fact,  based  on  the  record  before  us,  it  appears  that  Station  WMI878  has  never  been  used  to  provide  service.  We  therefore  find  that  the  license  for  Station  WMI878  was  forfeited  on 
 May  21,  1995,  or  one  year  and  thirty  days  after  Kannew  certified  that  it  had  completed  construction  of  Station  WMI878.  32  This  result  is  consistent  with  the  plain  language  of  Section  21.303(  d)  and  case 
 precedent.  33 
 9.  Since  Kannew  forfeited  the  license  for  Station  WMI878  on  May  21,  1995,  we  will  dismiss  its  August  14,  1997  Waiver  Request  as  moot.  We  will  also  dismiss  as  moot  the  applications  to 


 modify  and  renew  the  license  for  Station  WMI878. 


 IV.  ORDERING  CLAUSES 
 10.  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  21.303  of  the  Commissions  Rules,  47  C.  F.  R.   


 21.303,  that  the  license  for  Station  WMI878  IS  DEEMED  CANCELED  as  of  May  21,  1995. 
 11.  IT  IS  FURTHER  ORDERED,  pursuant  to  Sections  4(  i)  and  309  of  the  Communications  Act  of  1934,  47  U.  S.  C.    154(  i),  309,  and  Section  21.  30  of  the  Commissions  Rules,  47  C.  F.  R.    21.30, 


 that  the  Petition  to  Deny  filed  by  Pegasus  Communications  Portfolio  Holdings,  Inc.  on  August  2,  2001  IS  GRANTED  to  the  extent  indicated  herein. 


 12.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  47  U.  S.  C.    154(  i),  and  Section  21.303  of  the  Commissions  Rules,  47  C.  F.  R.    21.  303,  that  the 
 waiver  request  filed  by  Kannew  Broadcast  Technologies  on  August  14,  1997  IS  DISMISSED  AS  MOOT. 


 30  See,  e.  g.,  Section  257  Proceeding  to  Identify  and  Eliminate  Market  Entry  Barriers  for  Small  Businesses,  Report, 
 12  FCC  Rcd  16802,  16904-  16905    188-  189  (1997).  31 
 See  47  C.  F.  R.    21.  303(  d)(  1),  (3).  Modification  of  the  license  to  delete  only  the  unused  frequencies  was  not  an  option  in  this  matter.  Cf.  47  C.  F.  R.    21.  303(  d)(  2). 


 32  Under  47  C.  F.  R.    21.  303(  d),  a  licensee  has  thirty  days  after  the  end  of  the  twelve  months  of  nonuse  to  take  one  of 
 the  actions  listed  in  that  rule.  Accordingly,  we  conclude  that  Kannew  forfeited  the  license  at  the  end  of  that  thirty-day  period. 


 33  See  San  Diego  MDS  Company,  Order  on  Reconsideration,  DA  03-  XXXX  (WTB  PSPWD  rel.  Sep.  XX,  2003); 
 Hydra  Communications,  Order  on  Reconsideration,  18  FCC  Rcd  4481  (WTB  PSPWD  2003) 
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 13.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  47  U.  S.  C.    154(  i),  and  Section  21.28  of  the  Commissions  Rules,  47  C.  F.  R.    21.28,  that  the 
 application  for  modification  of  license  filed  by  Kannew  Broadcast  Technologies  on  August  14,  1997  (File  No.  50826-  CM-  P-  97)  and  the  application  for  renewal  filed  by  Kannew  Broadcast  Technologies  on  March 
 29,  2001  (File  No.  20010329AGH)  ARE  DISMISSED. 
 13.  This  action  is  taken  under  delegated  authority  pursuant  to  Sections  0.131  and  0.331  of  the  Commissions  Rules,  47  C.  F.  R.    0.  131,  0.331. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Dwana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless  Division 
 Wireless  Telecommunications  Bureau 
5