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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Omnipoint Communications, Inc. ) File No. 15002-CW-L-94 New York MTA ) Frequency Block A ) ) Amendment of the Commission's Rules ) GEN Docket No. 90-314 to Establish New Personal ) PP-58 Communications Services ) MEMORANDUM OPINION AND ORDER Adopted: August 9, 1996 Released: August 23, 1996 By the Commission: INTRODUCTION 1. By this action, the Commission addresses a petition for declaratory ruling filed by The Wireless Communications Council (WCC). WCC requests that the Commission clarify the meaning and scope of the "substantial use" condition placed on the above-captioned pioneer's preference license, awarded to Omnipoint Communications, Inc. (Omnipoint), in the broadband Personal Communications Service (PCS). We find that WCC has not demonstrated the existence of a controversy or uncertainty sufficient to warrant exercise of our discretion to issue a declaratory ruling on this issue. For this reason, we deny WCC's petition. BACKGROUND 2. In the Third Report and Order (Third R&O) in GEN Docket No. 90-314 (the broadband PCS proceeding), we awarded broadband PCS pioneer's preferences to American Personal Communications (APC), Cox Enterprises, Inc. (Cox), and Omnipoint. We directed the Wireless Telecommunications Bureau (Bureau) to condition the broadband PCS licenses received by APC, Cox, and Omnipoint upon each licensee building a system that substantially uses the design and technologies upon which its preference award is based. Specifically, we stated that this condition would apply in the service area for which the preference is being granted and for the initial required five-year build-out period specified in the rules for broadband PCS. 3. Omnipoint was awarded a pioneer's preference for having designed and manufactured a 2 GHz spread spectrum handset and associated base station equipment, and for proposing a viable service with the flexibility to be implemented in a variety of environments with capabilities useful to subscribers. This preference granted Omnipoint the right, if otherwise qualified, to use a 30 megahertz channel block (Block A, 1850-1865 MHz and 1930-1945 MHz) in the Major Trading Area that includes northern New Jersey (New York MTA). On December 13, 1994, the Bureau granted a pioneer's preference license to Omnipoint, on condition that "Omnipoint ... shall construct a ... system ... that substantially uses the design and technology upon which the pioneer's preference award ... was based," and on condition that Omnipoint retain control of the license for three years or until it has met the five-year build-out requirement, whichever is the first to occur. 4. On January 16, 1996, WCC submitted the instant petition, urging the Commission to clarify the "substantial use" condition, as specified in the pioneer's preference license awarded to Omnipoint. WCC asserts that public evidence indicates that Omnipoint will initially use Global System for Mobile Communications (GSM) equipment for its New York PCS network, rather than the IS-661 technology for which the Commission awarded Omnipoint a preference. Specifically, WCC attaches the statement of its consulting engineer, Charles Jackson, who asserts that he has reviewed the publicly available information and believes that Omnipoint is currently constructing a GSM system with only minor use of IS-661 technology. WCC requests the Commission to clarify the extent to which Omnipoint must use its own technology to retain its preference award and asks several questions, including whether the substantial use condition requires Omnipoint to use its IS-661 interface from the inception of its broadband PCS operations pursuant to its license. 5. On January 31, 1996, Omnipoint submitted a response, in which it argues that WCC's petition should be dismissed or denied on five grounds. Omnipoint first states that "WCC has failed to articulate who it is, whom it represents, or how it or its membership, if any, is affected by Omnipoint's activities in the New York MTA." Omnipoint notes that the Commission's rules permit requests for clarification of a decision only when the petitioner demonstrates the existence of a genuine decisional controversy or uncertainty, and argues that WCC has failed to make such a demonstration. Second, Omnipoint contends that WCC's petition is in substance not a petition for clarification but an untimely filed petition for reconsideration of the Third R&O. Third, Omnipoint addresses WCC's substantive allegations. Omnipoint avers that in the deployment of its New York MTA PCS system, it is, in fact, substantially using the IS-661 technology for which it received a preference. It adds that other companies are "licensing and commercializing" this technology. Omnipoint stresses that it is deploying and using its IS-661 technology in conjunction with GSM, and that such use of multiple technologies is similar to the practices of most cellular and other broadband PCS licensees. Omnipoint concludes that WCC is unfairly asking the Commission to prohibit only Omnipoint from using multiple technologies in deploying a broadband PCS system. Fourth, Omnipoint submits that WCC's petition is not ripe for consideration because there is no Commission requirement that pioneers demonstrate compliance with the substantial use condition prior to the expiration of the five-year build-out requirement. Hence, Omnipoint argues that it should be afforded five years to comply fully with the condition in the New York MTA. Finally, Omnipoint states that the substantial use condition is not vague and does not need to be clarified by an order that could inadvertently delay the rapid deployment of pioneers' systems. 6. On February 7, 1996, WCC submitted a reply to Omnipoint's response in which it contends that Omnipoint offers no information to suggest that WCC's petition for clarification is unwarranted. WCC states that it is not arguing that Omnipoint must use only IS-661 technology in the New York MTA, but is asking merely that the Commission define the substantial use condition associated with Omnipoint's pioneer's preference license. WCC also states that Omnipoint does not attempt to clarify the extent to which Omnipoint will use its IS- 661 technology in the New York MTA, either initially or over a five-year period. DISCUSSION 7. The Commission has discretionary authority to issue a declaratory ruling to "terminat[e] a controversy or remov[e] uncertainty." The doctrine of standing was developed by the courts as an analytic tool to determine whether the exercise of jurisdiction by a court over a given case would exceed the limitation of "the scope of the federal judicial power to the resolution of 'cases' or 'controversies.'" This jurisdictional limitation is set forth in Article III of the U.S. Constitution. Although this limit on jurisdiction is not directly applicable to administrative agencies such as the Commission and there are no statutory or regulatory standing requirements applicable to the Commission in the declaratory ruling context, we believe that the presence or absence of standing is a useful factor to consider in determining whether a "controversy" or "uncertainty" exists in a form sufficiently crystallized to warrant our consideration in the context of a declaratory ruling. 8. To establish standing in the context of federal appellate proceedings, a petitioner must satisfy a three-pronged test. That is, the petitioner must allege (1) a "distinct and palpable" personal injury-in-fact that is (2) "fairly traceable" to the respondent's conduct and (3) redressable by the relief requested. By analogy, in considering similar factors in the declaratory ruling context, our review of the pleadings indicates that WCC has not identified itself, its membership, or its interest in the Omnipoint application. Though WCC has alleged a general concern that the "substantial use" condition should be clarified to "ensure that Omnipoint is in full compliance with the condition[] . . ., and that it is deserving of the substantial financial benefits attached to its license," it has not alleged how it personally would be injured if Omnipoint were not to comply with the "substantial use" condition. Its general allegations of potential harm to Omnipoint's competitors and to the U.S. Treasury are not distinct and palpable injuries personal to WCC. 9. In addition, although ripeness concerns addressed by federal courts in the context of Article III do not apply to agency declaratory rulings, concepts of ripeness can also provide a useful analogy in determining whether the Commission should exercise its discretion to issue declaratory rulings. We conclude that this is not an appropriate case to issue such a ruling because the question of the extent to which technology must be deployed in order to satisfy the "substantial use" condition is not ripe for our consideration at this time and no unusual and compelling circumstances are present. A finding of "substantial use" entails a judgment of the degree and/or nature of deployment and use, which can be affected by the nature and extent of other technologies with which the pioneer's preference technology is entwined, the effect of market forces, the effect of ensuing technological advancements, and other factors. Such judgments are best made on a case-by-case basis. No precise formula for "substantial use" can productively be set forth at this time, and any effort to do so would only serve to delay unnecessarily the deployment and use of pioneer's preference technology. In the instant case, Omnipoint's broadband PCS system in the New York MTA is still under construction, and Omnipoint has until the five-year build-out date specified in its license authorization, December 13, 1999, to meet its build-out requirements. Therefore, the issue of substantial use is not yet ripe for Commission review. 10. Therefore, for these reasons, we decline to exercise our discretion to issue a declaratory ruling here. Accordingly, IT IS ORDERED that the petition for declaratory ruling filed on January 16, 1996 by The Wireless Communications Council IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary