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Glenwood Telephone LMDS Extension Denial Order

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Released: August 2, 2013

Federal Communications Commission

DA 13-1694

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Matter of
)
)

GLENWOOD TELEPHONE MEMBERSHIP
)
File Nos. 0005218725-0005218726
CORPORATION
)
)

Requests for Extension of Time, or in the
)
alternative, Limited Waiver of Substantial Service )
Requirements for Local Multipoint Distribution
)
Service Stations WPOH457 and WPOH458
)
)

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 Glenwood Telephone Membership
Corporation's ("Glenwood") requests for extension of time to demonstrate compliance with the
substantial service requirements for its Local Multipoint Distribution Service ("LMDS") license for
Station WPOH457 and WPOH458, in the Grand Island-Kearney, Nebraska and Hastings, Nebraska, Basic
Trading Areas (BTA). Because we deny Glenwood's request, the license for Stations WPOH457 and
WPOH458 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.

Federal Communications Commission

DA 13-1694

licenses per BTA an "A Block" and a "B Block" 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.
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 licenses for Station WPOH457 and WPOH458 were originally issued to
Glenwood on June 17, 1998, as a result of Auction No. 17.13
5.
Glenwood was originally required to demonstrate substantial service on June 17, 2008, or
10 years after the initial license grant date.14 On June 15, 2007, Glenwood filed applications for an

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 See File No. 0000000071 (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.
2

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DA 13-1694

extension of time to demonstrate substantial service for its LMDS licenses.15 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 Glenwood 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.16
6.
The Bureau found that these LMDS licensees faced factors beyond their control,
including difficulties in obtaining viable and affordable equipment, that warranted an extension.17 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.18 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 licenses could 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.19 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.20
7.
On May 16, 2012, Glenwood filed applications seeking a further extension of time, until
December 31, 2012, to construct Stations WPOH457 and WPOH458.21 Glenwood states that it has
"experienced extreme difficulties locating suitable available equipment."22 It was told by distributors
that equipment should hopefully be available by the end of August.23 Glenwood claimed it had several
projects planned for deploying the spectrum once equipment was available, including a project to educate
students at a local college on wireless fundamentals.24 On December 4, 2012, Glenwood amended the
Extension Applications to request an extension until July 31, 2013.25 It reiterated that it was having

15 File Nos. 0003073367-0003073368 (filed June 15, 2007).
16 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).
17 LMDS Order, 23 FCC Rcd at 5905 24.
18 Id.
19 Id. at 5905 25.
20 Id.
21 See File Nos. 0005218725-0005218726 (filed May 16, 2012) (Extension Applications).
22 Extension Applications, First Build-out Waiver.
23 Id.
24 Id.
25 Extension Applications, Amendment.
3

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DA 13-1694

difficulty locating equipment but that equipment had been identified.26 It also repeated that it had several
projects planned for development.27

III.

DISCUSSION

A.

Extension Applications

8.
We find that Glenwood has not justified a grant of an extension of time of the
construction deadline for its LMDS licenses. And without such extension, Glenwood's LMDS licenses
for Station WPOH457 and WPOH458 automatically terminated, 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.
9.
Glenwood requests a further extension of time, until July 31, 2013, to demonstrate
substantial service.29 As noted above, this is the second extension that Glenwood has requested for
constructing Stations WPOH457 and WPOH458. To be eligible for an extension of time to construct,
Glenwood 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 Glenwood has not met this threshold.
10.
Glenwood claims that it has been unable to obtain equipment from vendors.31
Glenwood does not state, however, when it first 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.32 While we could imagine circumstances under which Glenwood would have acted diligently while
ordering equipment at a later time, we lack sufficient information to make such a conclusion.
Furthermore, we note that many LMDS licensees did meet the June 1, 2012 deadline and built facilities.33
Accordingly, Glenwood has failed to show that its failure to obtain equipment was a matter beyond its
control, and the Extension Requests must be denied.

B.

Waiver Request

11.
To be granted a waiver of the June 1, 2012 construction deadline, Glenwood 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

26 Id., LMDS 1st Buildout Waiver Update.
27 Id.
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 Application.
30 47 C.F.R. 1.946(e)(1).
31 Extension Application, Request for Extension.
32 See 47 C.F.R. 1.946(e)(2).
33 As of May 23, 2013, the Broadband Division had accepted 156 LMDS buildout notifications from at least 26
different licensees. Another 167 showings were pending and undergoing review.
4

Federal Communications Commission

DA 13-1694

inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable
alternative.34 As is discussed more fully below, we conclude that Glenwood has failed to make the
requisite showing, and we therefore deny its waiver request.
12.
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." 35 While
Glenwood claims it was unable to obtain equipment in a timely fashion, many other licensees obtained
equipment and built their facilities. Granting Glenwood a further extension under those circumstances
would be inconsistent with the underlying purpose of the substantial service requirement.
13.
We also conclude that Glenwood has not shown that requiring it to comply with the
substantial service requirements is inequitable, unduly burdensome, and contrary to the public interest.
As we have previously discussed, Glenwood has failed to show that it acted diligently in attempting to
obtain equipment. Other licensees were able to obtain equipment in a timely fashion and built out their
licenses.
14.
Authorizations for LMDS licenses automatically terminate if the licensee fails to meet
construction or coverage requirements.36 In light of our decision to deny Glenwood'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, Glenwood's licenses for Stations WPOH457 and WPOH458 automatically terminated, by
operation of Sections 1.946(c) and 1.955(a)(2) of the Commission's Rules,37 as of June 1, 2012.

IV.

CONCLUSION AND ORDERING CLAUSES

15.
Glenwood 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 Applications. Accordingly, Glenwood's licenses to

34 See 47 C.F.R. 1.925(b)(3); 47 C.F.R. 1.3; see also 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).
35See 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.");
Renewal of Licenses to Provide Microwave Service in the 38.6 40.0 GHz Band, Memorandum Opinion and
Order
, 17 FCC Rcd 4404, 4407 11 (WTB PS&PWD 2002) ("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.").
36 47 C.F.R. 1.946(c) and 1.955(a)(2).
37 Id.
5

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operate LMDS Stations WPOH457 and WPOH458 automatically terminated, by operation of
Commission rule, as of June 1, 2012.
16.
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 applications for extension of time to demonstrate substantial
service (File Nos. 0005218725-0005218726) filed by Glenwood Telephone Membership Corporation on
May 16, 2012 ARE DENIED.
17.
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 Glenwood Telephone Membership Corporation for Local
Multipoint Distribution Service Stations WPOH457 and WPOH458 TERMINATED as of June 1, 2012.
18.
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
6

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