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Comcell, Inc. LMDS Extension Denial Order

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Released: August 2, 2013

Federal Communications Commission

DA 13-1692

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Matter of
)
)

COMCELL, INC.
)
File No. 0005221656
)
Request for Extension of Time, or in the
)
alternative, Limited Waiver of Substantial Service )
Requirements for Local Multipoint Distribution
)
Service Station WPOH449
)
)

MEMORANDUM OPINION AND ORDER

Adopted: August 1, 2013

Released: August 2, 2013
By the Deputy Chief, Broadband Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1. In this Memorandum Opinion and Order, we deny Comcell, Inc's ("Comcell") request for
extension of time to demonstrate compliance with the substantial service requirements for its Local
Multipoint Distribution Service ("LMDS") license for Station WPOH449, in the Wichita Falls, Texas
Basic Trading Area (BTA). Because we deny Comcell's request, the license for Station WPOH449
automatically terminated, by operation of Commission rule, as of June 1, 2012.

II.

BACKGROUND

2.
In 1997, the Commission allocated 1,300 megahertz of LMDS spectrum in each basic
trading area ("BTA") across the United States.1 Specifically, the Commission allocated two LMDS
licenses per BTA an "A Block" and a "B Block" in each.2 The A Block license is comprised of 1,150

1 See Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's Rules to Redesignate the 27.5 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 12545, 12605 136 (1997)
("Second LMDS Report and Order"); see also Rand McNally Commercial Atlas & Marketing Guide 36-39 (123rd
ed. 1992). Rand McNally is the copyright owner of the Major Trading Area (MTA) and BTA Listings, which list
the BTAs contained in each MTA and the counties within each BTA, as embodied in Rand McNally's Trading Area
System MTA/BTA Diskette, and geographically represented in the map contained in Rand McNally's Commercial
Atlas & Marketing Guide. The conditional use of Rand McNally copyrighted material by interested persons is
authorized under a blanket license agreement dated February 10, 1994 and covers use by LMDS applicants. This
agreement requires authorized users of the material to include a legend on reproductions (as specified in the license
agreement) indicating Rand McNally ownership. The Commission has allocated the LMDS for operations in a total
of 493 BTAs throughout the nation.
2 See Second LMDS Report and Order, 12 FCC Rcd at 12556 12.

Federal Communications Commission

DA 13-1692

megahertz of total bandwidth, and the B Block license is comprised of 150 megahertz of total bandwidth.3
The A Block consists of the sub bands 27.50-28.35 GHz (the A1 Band); 29.10-29.25 GHz (the A2 Band);
and 31.075-31.225 GHz (the A3 Band).4 The B Block consists of the sub bands 31.00-31.075 (the B1
Band) and 31.225-31.30 GHz (the B2 Band).5 The same entity may hold the licenses for both the A and
B Blocks of spectrum in an individual BTA, but each license is auctioned and licensed separately.
3.
LMDS licensees are regulated under Part 101 of the Commission's rules, which generally
governs terrestrial microwave operations, and may provide any service consistent with the Commission's
rules and the licensee's regulatory status,6 subject to a ten-year term from the initial license grant date.7
At the end of the ten-year period, licensees are required to submit an acceptable showing to the
Commission demonstrating that they are providing "substantial service" in each licensed area.8 Failure
by any licensee to meet this requirement will result in forfeiture of the license and the licensee will be
ineligible to regain it.9
4.
The final LMDS band allocation was adopted by the Commission on March 20, 1997.10
Since allocating the LMDS spectrum, the Commission has thus far held two LMDS auctions: Auction 17
and Auction 23.11 Auction No. 17, the first LMDS auction, began on February 18, 1998, and closed on
March 25, 1998.12 The license for Station WPOH449 was originally issued to Comcell on June 17, 1998,
as a result of Auction No. 17.13
5.
Comcell was originally required to demonstrate substantial service on June 17, 2008, or
10 years after the initial license grant date.14 On April 15, 2008, Comcell filed an application for an
extension of time to demonstrate substantial service for its LMDS license.15 On June 13, 2008, the

3 See id.
4 See 47 C.F.R. 101.1005.
5 See id.
6 See 47 C.F.R. 101.1013(b).
7 See Second LMDS Report and Order, 12 FCC Rcd at 12657 259. Pursuant to 47 C.F.R. 101.67, LMDS
licenses are issued for a period not to exceed ten years, subject to renewal upon demonstration of substantial service.
8 See 47 C.F.R. 101.1011(a); see also Second LMDS Report and Order, 12 FCC Rcd at 12658 261-262.
9 See 47 C.F.R. 101.1011(a).
10 See Second LMDS Report and Order, 12 FCC Rcd at 12556 13; see also Rulemaking to Amend Parts 1, 2, 21,
and 25 of the Commission's Rules, to Redesignate the 27.5 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, First Report and Order and Fourth Notice of Proposed Rulemaking, 11 FCC Rcd
19005, 19025 45 (1996) (allocating the initial 1 gigahertz of spectrum for LMDS and seeking comment on the
allocation of an additional 300 megahertz of spectrum at 31.0-31.3 GHz).
11 See, e.g., LMDS Auction Closes, Public Notice, 13 FCC Rcd 18217 (1998) (Auction 17 Closing PN); Local
Multipoint Distribution Service Auction Closes, Public Notice, 14 FCC Rcd 8543 (1999) (Auction 23 Closing PN).
12 See FCC Announces Spectrum Auction Schedule for 1998, Public Notice, 12 FCC Rcd 19726 (1997); Auction 17
Closing PN,
13 FCC Rcd at 18217.
13 See File No. 0000000025 (granted June 17, 1998); see also FCC Announces the Conditional Grant of 199 Local
Multipoint Distribution Service Licenses, Public Notice, 13 FCC Rcd 16730 (WTB 1998).
14 See Second LMDS Report and Order, 12 FCC Rcd at 12657 259.
15 File No. 0003397333 (filed Apr. 15, 2008).
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Bureau granted Comcell an extension until June 1, 2012 to construct Station WPOH449, resulting in a
nearly four-year construction extension.16
6.
The application was granted with a comment referring to a 2008 Bureau order where the
Bureau granted extensions to other LMDS licensees.17 In the LMDS Order, the Wireless
Telecommunications Bureau (the "Bureau") granted the requests for extension of the construction
deadlines filed by a large group of LMDS licensees to extend their deadlines to meet the substantial
service requirements to June 1, 2012, resulting in a nearly four year construction extension for each of
these licensees.18 The Bureau found that these LMDS licensees faced factors beyond their control,
including difficulties in obtaining viable and affordable equipment, that warranted an extension.19 In
making this finding, the Bureau noted that the licensees seeking relief from the construction deadlines
represented a majority of LMDS licensees for whom buildout requirements were approaching, and that
they all faced these same basic obstacles to timely construction.20 Thus, these obstacles were not a
product of an individual licensee's short-sightedness or its unfortunate business decisions; rather, the
difficulties in procuring the basic equipment necessary for LMDS operations were widespread, stemming
from the state of the market. Based on the record evidence, the Bureau anticipated that various
developments in the market arising in large part from the rollout of new services that could provide
opportunities for LMDS operations would help rectify these difficulties. Thus, the Bureau found that
LMDS licensees could potentially use their licenses to provide wireless backhaul services to licensees in
the 700 MHz band, the Advanced Wireless Services-1 ("AWS-1") band, and other bands suitable for
mobile broadband service, all of which at that time had recently been auctioned, licensed, or put into
use.21 The Bureau anticipated that these bands would develop robustly, along with other mobile and
fixed wireless services, and that resulting opportunities for associated LMDS service (such as wireless
backhaul) would help spur production of equipment designed for LMDS use and thus facilitate timely
construction by LMDS licensees, under the extended buildout deadline set by the Bureau.22
7.
On May 16, 2012, Comcell filed an application seeking a further one-year extension of
time, until June 1, 2013, to construct Station WPOH449.23 Comcell states that it has been in contact with
equipment dealers and has been told that they cannot provide this equipment at this time because of an
influx of new orders.24

III.

DISCUSSION

8.
We find that Comcell has not justified a grant of an extension of time of the construction
deadline for its LMDS license. And without such extension, Comcell's LMDS license for Station

16 File No. 0003397333 (granted June 13, 2008).
17 Id., citing Applications filed by Licensees in the Local Multipoint Distribution Service (LMDS) Seeking Waivers
of Section 101.1011 of the Commission's Rules and Extensions of Time to Construct and Demonstrate Substantial
Service, Memorandum Opinion and Order, 23 FCC Rcd 5894 (WTB 2008) (LMDS Order).
18 LMDS Order.
19 Id. at 5905 24.
20 Id.
21 Id. at 5905 25.
22 Id.
23 See File No. 0005221656 (filed May 16, 2012) (Extension Application).
24 Extension Application, Request for Extension.
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Federal Communications Commission

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WPOH449 automatically terminated, by operation of Sections 1.946(c) and 1.955(a)(2) of the
Commission's Rules, as of June 1, 2012.25 We discuss these findings in detail below.
9.
Comcell requests a further one-year extension of time, until June 1, 2013, to demonstrate
substantial service.26 As noted above, this is the second extension that Comcell has requested for
constructing Station WPOH449. To be eligible for an extension of time to construct, Comcell must show
that its "failure to meet the construction deadline is due to involuntary loss of site or other causes beyond
its control."27 We conclude that Comcell has not met this threshold.
10.
Comcell claims that it has been unable to obtain equipment from vendors because of a
backlog of new orders.28 Comcell does not state, however, when it attempted to order equipment. Under
the Commission's rules, a licensee is presumed to be diligent if it orders equipment in the first ninety days
of its license term.29 While we could imagine circumstances under which Comcell would have acted
diligently while ordering equipment at a later time, we lack sufficient information to make such a
conclusion. Accordingly, we must deny the Extension Request.
11.
Authorizations for LMDS licenses automatically terminate if the licensee fails to meet
construction or coverage requirements.30 In light of our decision to deny Comcell's request for an
extension or waiver of the construction requirements on the ground that grant of such request is not in the
public interest, Comcell's license automatically terminated, by operation of Sections 1.946(c) and
1.955(a)(2) of the Commission's Rules,31 as of June 1, 2012.

IV.

CONCLUSION AND ORDERING CLAUSES

12.
Comcell has failed to justify an extension of time to meet the substantial service deadline
for its LMDS station or to justify a waiver of the June 1, 2012 deadline for establishing substantial
service. We therefore deny the Extension Application. Accordingly, Comcell's license to operate LMDS
Station WPOH449 automatically terminated, by operation of Commission rule, as of June 1, 2012.
13.
Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 309 of the Communications
Act of 1934, as amended, 47 U.S.C. 154(i), 309, and Sections 1.925 and 1.946 of the Commission's
Rules, 47 C.F.R. 1.925, 1.946, that the application for extension of time to demonstrate substantial
service (File No. 0005221656) filed by Comcell, Inc. on May 16, 2012 IS DENIED.

25 47 C.F.R. 1.946(c) (providing that if a licensee in the Wireless Radio Services fails to commence service or
operations by the expiration of its construction period or to meet its coverage or substantial service obligations by
the expiration of its coverage period, its authorization terminates automatically, without specific Commission action,
on the date the construction or coverage period expires) and 1.955(a)(2) (cross-referencing Section 1.946(c) and
reiterating that authorizations in the Wireless Radio Services automatically terminate without specific Commission
action, if the licensee fails to meet applicable construction or coverage requirements).
26 Extension Application.
27 47 C.F.R. 1.946(e)(1).
28 Extension Application, Request for Extension.
29 See 47 C.F.R. 1.946(e)(2).
30 47 C.F.R. 1.946(c) and 1.955(a)(2).
31 Id.
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Federal Communications Commission

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14.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of the
Communications Act, as amended, 47 U.S.C. 154(i), 303(r), and Section 1.955(a)(2) of the
Commission's Rules, 47 C.F.R. 1.955(a)(2), that the Universal Licensing System SHALL BE
UPDATED to reflect that the license issued to Comcell, Inc. for Local Multipoint Distribution Service
Station WPOH449 TERMINATED as of June 1, 2012.
15.
These actions are 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
John J. Schauble
Deputy Chief, Broadband Division
Wireless Telecommunications Bureau
5

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