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E.N.M.R. Cooperative LMDS Construction Extension Denial Order

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Released: October 22, 2012

Federal Communications Commission

DA 12-1695

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Matter of
)
)

E.N.M.R. TELEPHONE COOPERATIVE
)
File Nos. 0005235740, 0005235773
)
Requests for Extension of Time, or in the
)
alternative, Limited Waiver of Substantial Service )
Requirements for Local Multipoint Distribution
)
Service Licenses WPOH492 and WPOH493
)
)

MEMORANDUM OPINION AND ORDER

Adopted: October 22, 2012

Released: October 22, 2012

By the Deputy Chief, Broadband Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order, we deny E.N.M.R. Telephone Cooperative’s
(“ENMR”) requests for extension of time to demonstrate compliance with the substantial service
requirements for its two of its seven Local Multipoint Distribution Service (“LMDS”) licenses, Stations
WPOH492 (the A block channels) and WPOH493 (the B block channels) (collectively the “Licenses”) in
the Hobbs, New Mexico Basic Trading Area (“BTA”), as well as its associated requests for waiver of the
June 1, 2012 substantial service deadline. Given our denial of these requests, these licenses 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


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.

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DA 12-1695

licenses per BTA – an “A Block” and a “B Block” license in each.2 The A Block license is comprised of
1,150 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. As noted above, ENMR holds the licenses for both the A block (Station WPOH492) and B
block (Station WPOH493) in the Hobbs BTA.
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 ENMR won the licenses for Stations WPOH492 and WPOH493 in Auction No. 17. 13
The licenses for these stations were granted on June 24, 1998.14


2 See Second LMDS Report and Order, 12 FCC Rcd at 12556 ¶ 12.
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 LMDS Auction Closes, Public Notice, 13 FCC Rcd 18217 (1998) (Auction 17 Closing PN).
14 File No. 0000000074 (granted June 24, 1998). see also FCC Announces the Conditional Grant of 25 Local
Multipoint Distribution Service Licenses, Public Notice, 13 FCC Rcd 17186 (WTB 1998).
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DA 12-1695

5.
ENMR was originally required to demonstrate substantial service by June 24, 2008, 10
years after the initial license grant date.15 On June 14, 2007, ENMR filed applications for an extension of
time to demonstrate substantial service for its LMDS licenses.16 On April 11, 2008, the Wireless
Telecommunications Bureau (the “Bureau”) granted the requests for extension of the construction
deadlines filed by a large group of LMDS licensees – including ENMR – 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.17 The Bureau found that these LMDS licensees faced factors beyond their
control, including difficulties in obtaining viable and affordable equipment, that warranted an extension.18
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.19 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
ENMR and others could potentially use their LMDS 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.20 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 ENMR and the other LMDS licensees, under the extended buildout deadline set by
the Bureau.21
6. On May 29, 2012, ENMR filed applications pursuant to Section 1.946(e) of the
Commission’s Rules seeking a further eighteen month extension of time until December 1, 2013, to
construct the Licenses.22 Invoking the Commission’s general waiver authority under Section 1.925 of the
Commission’s Rules, ENMR alternatively seeks a waiver of Section 101.1011(a) of the Commission’s
Rules, as a means of extending the construction deadline applicable to the licenses until December 1,
2013.23 ENMR argues that it has been prevented from constructing the Licenses because it is in the


15 See Second LMDS Report and Order, 12 FCC Rcd at 12657 ¶ 259.
16 File Nos. 0003071577, 0003071578 (filed Jun. 14, 2007).
17 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, 23 FCC Rcd at 5905 ¶ 24.
19 Id.
20 Id. at 5905 ¶ 25.
21 Id.
22 See File Nos. 0005235740, 000523773 (filed May 29, 2012) (Extension Applications). With each Extension
Application, ENMR filed an exhibit entitled “Request for Limited Waiver and Extension” (Extension and Waiver
Request).
23 Extension and Waiver Request at 1.
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DA 12-1695

process of selling its mobile wireless assets in the Hobbs BTA,24 where both Station WPOH492 and
WPOH493 are located, to Verizon Wireless and thus rendering the Hobbs BTA in a transition period.25
ENMR also argues that it has not constructed the Licenses because it has not yet identified demand by
other carriers or enterprises for LMDS in this rural area.26 But, ENMR continues, once ENMR and
Verizon Wireless complete the sale of ENMR’s mobile wireless assets, ENMR fully intends to use the
Licenses for backhaul, either for its fixed wireless network or the networks of broadband mobile
providers in the markets.27

III.

DISCUSSION

7.
We find that ENMR has not justified a grant of an extension of time, or a waiver of the
construction deadline, for its LMDS licenses. And without such extension or waiver, ENMR’s LMDS
licenses have automatically cancelled, by operation of Sections 1.946(c) and 1.955(a)(2) of the
Commission’s Rules, as of June 1, 2012.28 We discuss these findings in detail below.

A.

Extension Requests

8.
ENMR requests a further eighteen month extension of time, until December 1, 2013, to
demonstrate substantial service.29 As noted above, this is the second extension that ENMR has requested
for constructing these licenses. To be eligible for an extension of time to construct, ENMR must show
that its “failure to meet the construction deadline is due to involuntary loss of site or other causes beyond
its control.” 30 We conclude that ENMR has not met this threshold.
9.
ENMR argues that it has not constructed because it pursued a sale of its wireless mobile
assets in the Hobbs BTA, excluding the Licenses, to Verizon Wireless rather than developing its LMDS
spectrum. ENMR argues that the Commission’s approval of this pending transaction is a factor outside of
ENMR’s control. Pursuing a transaction with Verizon Wireless however, is a voluntary business decision
by ENMR, and the Commission has consistently found that a licensee’s own business decisions are not
circumstances beyond the licensee’s control and are therefore not an appropriate basis for regulatory
relief.31 Moreover, the Commission’s approval of transfers of wireless assets is an integral part of any


24 On October 4, 2012, the Wireless Telecommunications Bureau and the International Bureau approved the
transaction. See Cellco Partnership d/b/a Verizon Wireless and E.N.M.R. Telephone Cooperative and Its Wholly-
Owned Subsidiary Plateau Telecommunications, Incorporated for Consent to Assign Licenses and Authority,
Memorandum Opinion and Order, DA 12-1589 (WTB, IB rel. Oct. 4, 2012).
25 Extension and Waiver Request at 1.
26 Extension and Waiver Request at 1.
27 Extension and Waiver Request at 1.
28 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).
29 Extension and Waiver Request at 1.
30 47 C.F.R. § 1.946(e)(1).
31 See, e.g., Redwood Wireless Minnesota, LLC, Order, 17 FCC Rcd 22416 (WTB CWD 2002) (construction delays
resulting from business disputes were exercises of business judgment and were not outside Petitioner’s control);
Eldorado Communications LLC, Order, 17 FCC Rcd 24613 (WTB CWD 2002) (licensee’s determination to initially
(continued....)
4

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licensee’s business decision to sell its wireless assets and thus, the Commission’s approval of sale of
ENMR’s mobile wireless assets to Verizon Wireless is not a factor outside of ENMR’s control. In view
of the Commission’s precedent that business decisions are not factors beyond a licensee’s control, we find
that none of the factors cited by ENMR demonstrate that its failure to construct was caused by
circumstances beyond its control.
10.
ENMR also argues that it was prevented from constructing the Licenses because it has
not yet identified demand by other carriers or enterprises for LMDS broadband in this rural BTA.32 We
find, however, that the pace of the development of the market for LMDS equipment wireless backhaul, by
itself, does not justify granting an extension, because ENMR has had other ways to develop its service
independent of the backhaul market. Thus, its decision to put its LMDS spectrum on the shelf until the
market for wireless backhaul improved constituted a business decision voluntarily made by ENMR, not
an inevitable result of circumstances beyond its control. Moreover, even if wireless backhaul presented
the only feasible use of LMDS spectrum, ENMR’s justification for additional construction time would
fail, insofar as the market for wireless backhaul has been developing steadily. In 2005, 8.7 percent of
backhaul traffic was sent by fixed wireless.33 By 2009, that figure increased to 12.3 percent.34 Finally,
we note that many LMDS licensees -- including ENMR, which constructed five of its seven LMDS
licenses -- did meet the June 1, 2012 deadline and built facilities.35 We conclude that ENMR made a
voluntary business decision not to actively pursue development of it LMDS Licenses in the Hobbs BTA.
11.
We find that ENMR, which made no attempt to commence construction of the Licenses
in advance of the construction deadline, is readily distinguishable from other licensees that attempted to
build out their licenses prior to the deadline and that ordered equipment but failed to receive timely
delivery of that equipment. ENMR chose to delay constructing the Licenses to provide point-to-point
wireless backhaul for its fixed wireless broadband network, which it is not selling, until after the
transaction with Verizon Wireless has been approved or to provide support in the future for carriers
deploying Long Term Evolution (“LTE”) services in the market.36 ENMR chose to meet the construction


(...continued from previous page)
deploy TDMA system and subsequently to adopt GSM with months remaining before construction deadline was
business decision within its control); Bristol MAS Partners, Order, 14 FCC Rcd 5007 (WTB PSPWD 1999)
(equipment installation or delivery not delayed for some unique reason and licensee failing to obtain equipment was
business decision); AAT Electronics Corporation, 93 FCC 2d 1034 (1983) (decision not to market service
aggressively because of equipment uncertainties was within licensee’s control); Business Radio Communications
Systems, Inc., 102 FCC 2d 714 (1985) (construction delay caused by zoning challenge not a circumstance beyond
licensee’s control); Texas Two-Way, Inc., 98 FCC 2d 1300 (1984), aff'd sub nom., Texas Two-Way, Inc. v. FCC,
762 F.2d 138 (D.C. Cir. 1985) (licensee is responsible for delay resulting from interference caused by construction
adjacent to construction site because site selection was an independent business decision).
32 Extension and Waiver Request at 1.
33 See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and
Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile
Services, WT Docket No. 10-133, Fifteenth Report, 26 FCC Rcd 9664, 9845 ¶ 320 (2011).
34 Id. In a separate proceeding, Clearwire Corporation has indicated that it uses wireless for over 90 percent of its
backhaul needs, including almost 13,000 licenses with over 48,000 paths. See Comments of Clearwire Corporation,
WT Docket No. 12-156 (filed July 19, 2012) at 2.
35 As of October 3, 2012, the Broadband Division had accepted 67 LMDS buildout notifications from at least 18
different licensees. Another 221 showings were pending and undergoing review.
36 Extension and Waiver Request at 2.
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deadline for five of its LMDS licenses and chose not to build the licenses for Stations WPOH492 and
WPOH493.37 Thus, its failure to construct its licenses was the result of its own business decision.
12.
As noted above, when the Bureau granted an extension to LMDS licensees in 2008, it
anticipated that licensees could potentially provide wireless backhaul services to licensees in bands that
had recently been auctioned, licensed, or put into use.38 In the years since the Bureau originally extended
the construction deadline for these licenses, there has been considerable deployment of wireless
broadband service in the 700 MHz, AWS-1, and BRS/EBS bands. Thus, the validity of one of the factors
supporting the Bureau’s earlier extension of the construction deadline – that with some additional time,
productive opportunities for using LMDS licenses would develop as these emerging wireless broadband
services create a need for supporting backhaul service – has been substantially confirmed.

Notwithstanding that progress, although ENMR built five of its seven LMDS licenses, it made no attempt
to construct Stations WPOH492 and WPOH493. We therefore conclude that the decision to grant an
extension to LMDS licensees in 2008 does not support ENMR’s request for yet more time.

B.

Waiver Request

13.
To be granted a waiver of the June 1, 2012 construction deadline, ENMR must show that
either (1) the underlying purpose of the rule(s) would not be served or would be frustrated by application
to the instant case, and that a grant of the requested waiver would be in the public interest; or (2) in view
of the unique or unusual circumstances of the instant case, application of the rule(s) would be inequitable,
unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.39 As
is discussed more fully below, we conclude that ENMR has failed to make the requisite showing, and we
therefore deny its waiver request.
14.
First, we conclude that an extension would be inconsistent with the underlying purpose of
the substantial service standard, which, as the Commission has said, is to provide “a clear and expeditious
accounting of spectrum use by licensees to ensure that service is being provided to the public.” 40 ENMR


37 ENMR filed substantial service notifications for the following licenses: WPOH490; WPOH491; WPOH494;
WPOH495; and WPOH496. See File Nos. 0005253330 (accepted Aug. 15, 2012); 0005253328 (accepted Aug. 16,
2012); 0005253324 (accepted Aug. 16, 2012); 0005253318 (accepted Aug. 16, 2012); and 0005253315 (accepted
Aug. 16, 2012).
38 LMDS Order, 23 FCC Rcd at 5905 ¶ 25.
39 See 47 C.F.R. § 1.925(b)(3); see also 47 C.F.R. § 1.3; Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164,
1166 (D.C. Cir. 1990); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (1972), cert.
denied
, 409 U.S. 1027 (1972).
40 See Amendment of Part 101 of the Commission’s Rules to Facilitate the Use of Microwave for Wireless Backhaul
and Other Uses and to Provide Additional Flexibility to Broadcast Auxiliary Service and Operational Fixed
Microwave Licensees, WT Docket No. 10-153, Second Report and Order, Second Further Notice of Proposed
Rulemaking, Second Notice of Inquiry, Order on Reconsideration, and Memorandum Opinion and Order
, 27 FCC
Rcd 9735, 9773-9774 ¶ 104 (2012) (“Wireless Backhaul 2nd R&O”), citing 39 GHz R&O, 12 FCC Rcd at 18623 ¶
42; see also 39 GHz R&O, 12 FCC Rcd at 18625 ¶ 46 (“This approach will permit flexibility in system design and
market development, while ensuring that service is being provided to the public.”); 39 GHz R&O, 12 FCC Rcd at
18626 ¶ 46 (“This revised performance standard should ensure that meaningful service will be provided without
unduly restricting service offerings.”);39 GHz R&O, 12 FCC Rcd at 18625 ¶ 47 (“[A]pplying a similar performance
requirement to all licensees at the license renewal point will help establish a level playing field without
compromising the goals of ensuring efficient spectrum use and expeditious provision of service to the public.”); 39
GHz Renewal Order
, 17 FCC Rcd at 4407 ¶ 11 (“The Commission’s overarching purpose behind adopting the
substantial service standard for renewal was to ensure that the spectrum was being used to provide service to the
public.”).
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claims that because it has constructed five of its seven LMDS licenses and it plans to construct the
remaining two licenses in the near future, it is not warehousing spectrum and thus applying the June 1,
2012 deadline to the Licenses would frustrate the purpose of the rule.41 The Commission’s rules,
however, require ENMR to provide substantial service on an individual license basis. While ENMR’s
efforts in building out the other licenses may have been relevant if it had attempted to build the Hobbs
Licenses but run into difficulties, it made a deliberate decision not to build the Hobbs Licenses. Under
those circumstances, granting ENMR a further extension despite its lack of effort in attempting to develop
the Licenses would be inconsistent with the underlying purpose of the substantial service requirement.
15.
ENMR further argues that because of the pending transaction with Verizon Wireless, it
was not economically viable for ENMR to deploy backhaul in the Hobbs BTA before June 1, 2012.42
ENMR also argues that it was prevented from constructing the Licenses because of the challenges of
acquiring affordable equipment, which it says are well documented.43 As discussed above, however,
ENMR’s failure to construct the Licenses was the result of a business decision by ENMR and does not
show how applying the June 1, 2012 deadline to the Licenses frustrates the underlying purpose of the
deadline, which is to ensure that service is being provided to the public in the Hobbs BTA. Moreover, we
reject ENMR’s argument that it was prevented from constructing the Licenses because of a lack of
equipment. This lack of equipment did not prevent ENMR from constructing its five other LMDS
licenses. Granting ENMR a further extension despite its lack of effort in attempting to develop its LMDS
spectrum would be inconsistent with the underlying purpose of the substantial service requirement.
16.
We also conclude that ENMR has not shown that requiring compliance with the
substantial service rules is inequitable, unduly burdensome, and contrary to the public interest. ENMR
argues that requiring it to comply with the June 1, 2012 deadline would be inequitable and burdensome
because it has been unable to deploy backhaul links in the Hobbs BTA due to uncertainty regarding
timing of the transition of its mobile wireless system and to the uncertainty of the future configuration of
its fixed wireless broadband network in the Hobbs BTA.44 As we have previously discussed, however,
ENMR’s decision not to construct its LMDS licenses was a voluntary business decision. Other licensees
made other business decisions that led them to build out their licenses.45
17.
ENMR argues that cancelling the licenses and reauctioning the spectrum would not be
in the public interest because it allegedly would “take many years for the Commission to relicense
this spectrum and even longer for new licensees to prepare for deployment.”46
Because this
argument could be used to justify virtually every failure to construct, granting an extension of the
construction deadlines on this basis would undermine the efficacy of construction deadlines
generally, eliminating the incentive for timely construction and the expeditious provision of service
to the public. Thus, ENMR ignores the broader ramifications of its position: that grant of its request
for an extension of time to construct would ultimately serve to defeat the fundamental public interest
of ensuring licensee compliance with public interest obligations, including the duty to follow rules


41 Extension and Waiver Request at 3.
42 Extension and Waiver Request at 3.
43 Extension and Waiver Request at 3.
44 Extension and Waiver Request at 4.
45 See note 31, supra.
46 Extension and Waiver Request at 4.
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designed to bring service to the public as expeditiously as possible.47 ENMR has had these licenses
for fourteen years and has done nothing with them. The Licenses could play an important role in
providing wireless backhaul to support 4G services and should not lay fallow. The Bureau will
expeditiously take action to relicense the spectrum in an appropriate fashion so that another operator
could promptly place the spectrum in use.
18.
Authorizations for LMDS licenses automatically terminate if the licensee fails to meet
construction or coverage requirements.48 In light of our decision to deny ENMR’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, ENMR’s licenses automatically terminated, by operation of Sections 1.946(c) and
1.955(a)(2) of the Commission’s Rules,49 as of June 1, 2012.

IV.

CONCLUSION AND ORDERING CLAUSES

19.
ENMR has failed to justify an extension of time to meet the substantial service deadline
for its LMDS stations or to justify a waiver of the June 1, 2012 deadline for establishing substantial
service. We therefore deny the Extension and Waiver Request. Accordingly, ENMR’s licenses to
operate LMDS Stations WPOH492 and WPOH493 have automatically terminated, by operation of
Commission rule, as of June 1, 2012.
20.
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 request for waivers and the applications for extension of time to
demonstrate substantial service (File Nos. 0005235740, 0005235773) filed by E.N.M.R. Telephone
Cooperative on May 29, 2012 ARE DENIED.
21.
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 licenses issued to E.N.M.R. Telephone Cooperative for Local Multipoint
Distribution Service Stations WPOH492 and WPOH493 TERMINATED as of June 1, 2012.
22.
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


47 See Wireless Backhaul 2nd R&O, 27 FCC Rcd at 9773-9774 ¶ 104.
48 47 C.F.R. §§ 1.946(c) and 1.955(a)(2).
49 Id.
8

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