Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Nextlink 39 GHz San Diego Substantial Service Order

Download Options

Released: January 16, 2014

Federal Communications Commission

DA 14-50

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Applications of
)
)

NEXTLINK WIRELESS, LLC
)
File Nos. 0005333352, 0005333399 and
)
0005333415
Notifications of Completion of Construction for 39 )
GHz Common Carrier Microwave Licenses
)
WPQT939, WPQT944, and WPQT947
)
)

MEMORANDUM OPINION AND ORDER

Adopted: January 15, 2014

Released: January 16, 2014
By the Deputy Chief, Broadband Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1. In this Memorandum Opinion and Order, we find that Nextlink Wireless, LLC (“Nextlink”)
has failed to demonstrate substantial service for its 39 GHz Common Carrier Microwave Station
WPQT947 but has demonstrated substantial service for its 39 GHz Common Carrier Microwave Stations
WPQT939 and WPQT944. Based on this determination, the license for Station WPQT947 automatically
terminated, by operation of Commission rule, as of July 31, 2012.

II.

BACKGROUND

2. Licenses in the 38.6-40.0 GHz band (“39 GHz band”) are subject to Part 101 of the
Commission’s Rules, which generally governs terrestrial microwave operations.1 Originally, channels in
the 39 GHz service were licensed on a licensee-defined Rectangular Service Area (“RSA”) basis, but the
Commission later revised its rules to provide for Economic Area (“EA”) licenses.2 The Commission
auctioned 39 GHz overlay licenses on an EA basis in 2000.3 Licenses in the 39 GHz band are licensed
for ten-year terms and licensees must demonstrate “substantial service” as part of their applications for
license renewal.4 In establishing this substantial service standard, the Commission intended to “ensur[e]
that service is being provided to the public,”5 but wanted to provide licensees “a significant degree of

1 47 C.F.R. Part 101.
2 Amendment of the Commission's Rules Regarding the 37.0 - 38.6 GHz and 38.6 - 40 GHz Bands, Report and
Order and Second Notice of Proposed Rulemaking
, ET Docket No. 95-183, 12 FCC Rcd 18600 (1997) (39 GHz
R&O
).
3 See 39 GHz Band Auction Closes, Public Notice, 15 FCC Rcd 13648 (WTB 2000).
4 See 47 C.F.R. §§ 101.17, 101.67. See also, 39 GHz R&O, 12 FCC Rcd at 18626 ¶ 49.
5 39 GHz R&O, 12 FCC Rcd at 18624 ¶ 46.

Federal Communications Commission

DA 14-50

flexibility in meeting their performance requirement.”6 In an effort to give licensees this flexibility, the
Commission rejected defining specific build-out benchmarks as “unduly restrictive and burdensome.”7
The Commission did provide, however, a safe harbor example of a substantial service showing as “four
links per million population within a service area.”8
3. Nextlink is the licensee of three 39 GHz common carrier microwave licenses for Economic
Area 161, San Diego, CA (“San Diego EA”) whose call signs are WPQT939, WPQT944 and WPQT947
(“the Licenses”). Nextlink was originally required to renew those Licenses and demonstrate substantial
service by stations deployed under their authority by October 18, 2010, the expiration date of the Licenses.9
On July 27, 2010, the Wireless Telecommunications Bureau (“Bureau” or “WTB”) granted Nextlink
extensions until June 1, 2012 to satisfy the substantial service requirements for the Licenses.10 In 2010, the
Bureau granted ten-year renewals of the Licenses until October 18, 2020, on condition that Nextlink
demonstrate substantial service by the aforementioned June 1, 2012, deadline.11 On May 9, 2012, the
Bureau granted a further extension of the substantial service deadline for the Licenses until July 31,
2012.12 In accordance with Section 101.17 of the Commission’s Rules, Nextlink submitted substantial
service showings for the Licenses on July 31, 2012.13 It amended each of the Notifications on August 13,
2013 to provide a supplement (“Supplement”) and on August 26, 2013 to provide additional information
(“Amended Supplement”).14
4. Nextlink says that it operates a 39 GHz point-to-multipoint station in San Diego (“the Hub”)
that covers an estimated population of 630,895, or 20.4 percent of the total BEA population of 3,095,313,

6 Id. at 18623 ¶ 42.
7 Id. at 18623-18624 ¶ 43.
8 Id. at 18624-18625 ¶ 46. We note that, although the Commission did not use the specific term of “safe harbor” in
the 39 GHz band context, we believe the Commission intended for this example to serve, in fact, as a “safe harbor.”
This determination is consistent with similar examples the Commission has provided in other services. See
Amendments to Parts 1, 2, 87, and 101 of the Commission’s Rules to License Fixed Services at 24 GHz, WT Docket
No. 99-327, Report and Order, 15 FCC Rcd 16934, 16951-16952 ¶ 38 (2000); Amendment of Part 95 of the
Commission’s Rules to Provide Regulatory Flexibility in the 218-219 MHz Service, WT Docket No. 98-169, Report
and Order and Memorandum Opinion and Order
, 15 FCC Rcd 1497, 1537-1538 ¶ 70 (2000); Amendment of the
Commission’s Rules Concerning Maritime Communications, PR Docket No. 92-257, Third Report and Order and
Memorandum Opinion and Order
, 13 FCC Rcd 19853, 19870 ¶ 34 (1998); Amend Parts 1, 2, 21, and 25 of the
Commission’s Rules to Redesignate the 27.5-29.5 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, 12660-12661 ¶ 270 (1997); Amendment of the Commission’s Rules to
Establish Part 27, the Wireless Communications Service, GN Docket No. 96-228, Report and Order, 12 FCC Rcd
10785, 10843-10844 ¶ 113 (1997).
9 See 47 C.F.R. § 101.17.
10 See File Nos. 0004259579, 0004259584, and 0004259587 (filed May 25, 2010, granted July 27, 2010).
11 See File Nos. 0004422189, 0004422194, and 0004422197 (filed Oct. 14, 2010, granted Dec. 17, 2010).
12 See File Nos. 0005188145, 00051881150 and 0005188153 (filed May 1, 2012, granted May 9, 2012).
13 See File Nos. 0005333352, 0005333399, 0005333415 (filed July 31, 2012) (“Notifications”).
14 See Notifications (amended Aug. 13, 2013 and Aug. 26, 2013).
2

Federal Communications Commission

DA 14-50

using frequencies assigned to it under all three of the Licenses.15 Nextlink notes that for other wireless
services with geographic area licenses the Commission has established 20 percent population coverage as
a safe harbor for demonstrating substantial service,16 and that the Bureau has applied that benchmark in
accepting substantial service demonstrations for 39 GHz licenses.17 In addition, Nextlink says that it
provides 16 point-to-point links to the San Diego Port Authority (“SDPA”) on channels assigned to it
under call signs WPQT939 and WPQT944.18 It does not list any point-to-point links on the channels
assigned to it under call sign WPQT947.19
5. Nextlink states that it designed the Hub to provide wireless Ethernet and private line access as
well as high-speed, wide-area networking to customers throughout the portion of the San Diego BEA that
it covers, but that the actual routes in the network vary depending on customer demand and line-of-sight
constraints.20 It further states that, together with its operating affiliate, XO Communications, LLC
(“XO”), Nextlink has deployed more than 750 links throughout its licensed geographic areas in the 39
GHz and Local Multipoint Distribution Service (“LMDS”) bands, and that it continues to deploy
additional links throughout those service areas.21 Nextlink further states that its wireless microwave
services are marketed through a 900-person direct sales force and a well-developed network of agents.22
It says that the affiliated companies have developed a wide range of tools, services and processes to install
and monitor Nextlink’s wireless network, which are managed by a dedicated staff of radio frequency
engineers, material specialists and management personnel.23

III.

DISCUSSION

6. To demonstrate substantial service, Nextlink must show that it meets the Commission’s
definition of substantial service or that it meets one of the safe harbors applicable to 39 GHz licenses.
Nextlink must demonstrate substantial service “for each channel for which [it holds] a license . . .”24 The
same rule requires licensees to describe their “current service” in terms of geographic coverage and

15Notifications, Substantial Service Showing, (“Substantial Service Showing”), at 2.
16 Substantial Service Showing at 1-2 and n.3.
17 Substantial Service Showing at 2 and n. 4, citing Substantial Service Notification of IDT Spectrum, LLC, ULS
Application File No. 0004338108, accepted Aug. 23, 2010, with note: “The acceptance of this application is based
on a demonstration of point-to-multipoint service to greater than 20% of the population within the service area,
based on 99.9% signal availability.”
18 See Amended Supplement at 2-3. Nextlink provides 12 of the point-to-point links on channels assigned to it
under call sign WPQT939 (Channel B) and four of the point-to-point links on channels assigned to it under call sign
WPQT944 (Channel F), but for each of those links the radio equipment involved is capable of operating on either set
of channels. Id.
19 See Amended Supplement at 2-3. WPQT947 is authorized to operate on channel N.
20 Substantial Service Showing at 1.
21 Substantial Service Showing at 1.
22 Substantial Service Showing at 1.
23 Substantial Service Showing at 1.
24 47 C.F.R. § 101.17(a).
3

Federal Communications Commission

DA 14-50

population served.25 We find that Nextlink has demonstrated substantial service for WPQT939 and
WPQT944 but has failed to demonstrate substantial service for WPQT947, and that the latter license
therefore automatically terminated. Under the first two Licenses, Nextlink is providing a combination of
services – point-to-multipoint service from the Hub and point-to-point services along other paths. By
contrast, Nextlink uses the third license only to provide point-to-multipoint coverage to a small fraction of
the population in the San Diego BEA. For the reasons set out below, we find that the point-to-multipoint
coverage that Nextlink provides from the Hub does not qualify as substantial service by itself, but that the
combination of point-to-point and point-to-multipoint services that Nextlink provides under two of the
Licenses do meet the threshold.
7. Nextlink correctly observes that for geographic area licenses in certain frequency bands the
Commission has established 20 percent population coverage as a safe harbor for demonstrating
substantial service,26 and that the Bureau has applied that benchmark in accepting substantial service
demonstrations for 39 GHz licenses.27 While Nextlink claims that the Hub’s coverage area exceeds 20
percent of the San Diego BEA’s population,28 staff analysis indicates that the hub provides line-of-sight
coverage to only about 6 percent of the BEA population.29 In response to staff inquiries, Nextlink
counters that line-of-sight issues from the hub are minimal but that, in the event a customer is unable to
receive service from the hub, Nextlink can address the issue by transmitting the 39 GHz signal to a tower
or other facility near the customer location and then relaying the signal to the customer.30
8. To whatever extent Nextlink might be prepared to install repeaters or beam-benders for
potential new customers who lack line-of-sight access to the hub, the fact remains that it has not yet
installed them. The Commission’s 39 GHz rules clearly define substantial service as service as of the
time of license renewal, not at a later, indeterminate time when the licensee might or might not decide to
provide that service. Section 101.17(a) of the Commission’s Rules states, “All 38.6-40.0 GHz band

25 47 C.F.R. § 101.17(a)(1), (2).
26 Substantial Service Showing at 1-2 and n.3, citing Rulemaking to Amend Parts 1, 2, 21 and 25 of the
Commission’s Rules to Redesignate the 27.5-29.5 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; Petitions for Reconsideration of the Denial of Applications for Waiver of the Commission’s Common
Carrier Point-to-Point Microwave Radio Service Rules; Suite 12 Group Petition for Pioneer Preference, Second
Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking
, 12 FCC Rcd 12545, 12660
¶ 270 (1997); Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59),
Report and Order
, 17 FCC Rcd 1022, 1079 ¶ 151 (2002); Amendment of the Commission’s Rules With Regard to
the 3650-3700 MHz Government Transfer Band; The 4.9 GHz Band Transferred from Federal Government Use,
First Report and Order and Second Notice of Proposed Rulemaking, 15 FCC Rcd 20488, 20523-20524 ¶ 83 (2000).
27 Substantial Service Showing at 2 and n.4, citing Substantial Service Notification of IDT Spectrum, LLC, File No.
0004338108, accepted Aug. 23, 2010, with note: “The acceptance of this application is based on a demonstration of
point-to-multipoint service to greater than 20% of the population within the service area, based on 99.9% signal
availability.”
28 Substantial Service Showing at 2.
29 The staff used the information provided by Nextlink in its supplement regarding the ground elevation and antenna
height of the hub station to calculate line of sight from the hub station using 3 second terrain data and used the line
of sight coverage overlaid on US census block data to estimate the population covered.
30 Supplement at 1.
4

Federal Communications Commission

DA 14-50

licensees must demonstrate substantial service at the time of license renewal.”31 By contrast, Nextlink is
asking us to accept the same line of argument that the Commission considered and rejected in its recent
review of an application by FiberTower Spectrum Holdings, LLC: that preparation to provide substantial
service is functionally equivalent to substantial service even if the service is not yet being provided.32
While FiberTower’s argument could have some validity in areas where it had some level of service, staff
analysis shows that Nextlink does not have service in much of the area it claims because of terrain
blockage. Here, Nextlink attempts to characterize connections that it might easily provide in the future as
substantial service during the license period, even though the company is not yet providing that service.
That, however, does not meet the Commission’s clearly stated and restated position that its substantial
service requirements refer to actual service at the substantial service deadline. For that reason, we
conclude that Nextlink has fallen short of the 20 percent safe harbor threshold for point-to-multipoint
service under each of the three Licenses because its hub provides line-of-sight coverage to only 6 percent
of the San Diego BEA’s population.
9. As stated above, Nextlink also provides 16 point-to-point links in the San Diego BEA on the
39 GHz channels licensed to it under WPQT939 and WPQT944.33 The company says that it provides 12
of those links on channels assigned to it under WPQT939 and four of the links on channels assigned
under Station WPQT944.34 In neither case does the number of point-to-point links reach the four-links-
per-million population safe harbor level that the Commission described in the 39 GHz R&O.35 Thus,
none of the Licenses meets the Commission’s safe harbor thresholds either for percentage of BEA
population covered or number of links per million population.
10. As the Commission emphasized in the 39 GHz R&O, however, safe harbors do not represent
absolute requirements and licensees are accorded a significant degree of flexibility in meeting their
performance requirements.36 A more flexible evaluation is particularly appropriate where, as in this case,
the licensee is providing a combination of point-to-point and point-to-multipoint services, neither of
which reaches a safe harbor threshold on its own.
11. In addition to its point-to-multipoint service to six percent of the population in the San Diego
EA, Nextlink’s provision of four or 12 links in each market is significant. With respect to Station
WPQT939, the 12 point-to-point links are almost sufficient, by themselves, to meet the safe harbor.
While Station WPQT944 only has four operating links, we find the provision of service to SDPA to be
meaningful. When we add the number of point-to-point links Nextlink has provided to the amount of
point-to-multipoint population coverage that Nextlink has demonstrated and the unique nature and history
of the 39 GHz band, we conclude that Nextlink’s service, while not sufficient to meet the Commission’s

31 47 C.F.R. § 101.17(a).
32 See In the Matter of FiberTower Spectrum Holdings, LLC, Requests for Waiver, Extension of Time, or in the
alternative, Limited Waiver of Substantial Service Requirements to Construct 24 GHz Digital Electronic Message
Service Licenses, 345 39 GHz Economic Area Licenses, and 250 39 GHz Rectangular Service Area Licenses,
Memorandum Opinion and Order, 28 FCC Rcd 6822 (“FiberTower MO&O”), 6840-6841 ¶¶ 38-39 (2013).
33 Amended Supplement at 2-3.
34 See Amended Supplement at 2-3.
35 39 GHz R&O at 18624-18625 ¶ 46. According to Nextlink, the population of the San Diego BEA is 3,095,313.
Substantial Service Showing at 2.
36 See 39 GHz R&O, 12 FCC Rcd at 18623-18624, ¶¶ 42, 43 and 46.
5

Federal Communications Commission

DA 14-50

articulated safe harbors, is “substantially above a level of mediocre service.”37 In taking into account all
of the factors noted above, we find that Nextlink has demonstrated that it is using this spectrum to provide
service to the public, in keeping with the Commission’s policy objectives for adopting construction
requirements in this band – promoting efficient use of spectrum, encouraging the provision of service and
preventing spectrum warehousing.38
12. Our conclusion that Nextlink has demonstrated substantial service is not based upon any
single factor. It is based on our review of the record as a whole, including the level of point-to-multipoint
coverage, the number of point-to-point links, the unique nature and history of the 39 GHz band, and our
review of the services and markets in question. We therefore accept Nextlink’s construction notifications
for Stations WPQT939 and WPQT944.
13. By contrast, Nextlink does not report that it is operating any point-to-point links under the
channels assigned to it under its third license, WPQT947, nor does the company represent that any of the
point-to-point equipment that it has installed would be capable of operating on those channels. For
WPQT947, Nextlink is providing only point-to-multipoint coverage from the hub that reaches
approximately 6 percent of the population in the San Diego BEA. That falls far short of the 20 percent
safe harbor threshold for population coverage. Nextlink also fails to provide any other information
concerning its service that would allow us to find substantial service on a case-by-case basis. Nextlink
has not sought a waiver or further extension of time to demonstrate substantial service for WPQT947
beyond the aforementioned July 31, 2012 deadline.39 Without such extension or waiver, that license
automatically terminated, by operation of Sections 1.946(c) and 1.955(a)(2) of the Commission’s Rules,
on July 31, 2012.40

IV.

CONCLUSION AND ORDERING CLAUSES

14. Nextlink has demonstrated substantial service under the authority granted to it under licenses
WPQT939 and WPQT944 but has failed to demonstrate substantial service for license WPQT947. It has
not sought a further extension of time to meet the substantial service deadline for WPQT947, nor has it
sought a waiver of the July 31, 2012 deadline for establishing substantial service for that license.
Accordingly, Nextlink’s geographic area license WPQT947 automatically terminated, by operation of
Commission rule, as of July 31, 2012.
15. 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 Section 1.946 of the Commission’s Rules, 47 C.F.R.
§ 1.946, that the requests for findings of substantial service made by Nextlink Wireless, LLC, on July 31,

37 See FiberTower MO&O, 28 FCC Rcd at 13568 ¶ 20, citing Amendments to Parts 1, 2, 87 and 101of the
Commission's Rules to License Fixed Services at 24 GHz, WT Docket No. 99-327, Report and Order, 15 FCC Rcd
16934, 16951 (2000).
38 Second LMDS Report and Order, 12 FCC Rcd at 12659 ¶ 266.
39 See File No. 0005188153.
40 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).
6

Federal Communications Commission

DA 14-50

2012, as amended ARE GRANTED with respect to Stations WPQT939 and WPQT944 but DENIED with
respect to Station WPQT947.
16. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Section 1.946 of the Commission’s Rules, 47 C.F.R.
§ 1.946, that the licensing staff of the Broadband Division SHALL ACCEPT the notifications of
completion of construction filed by Nextlink Wireless, LLC for Stations WPQT939 and WPQT944 (File
Nos. 0005333352 and 0005333399) but SHALL DENY the notification of completion of construction
filed by Nextlink Wireless, LLC for Station WPQT947 (File No. 0005333415).
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 Nextlink Wireless, LLC’s license for Station WPQT947 automatically
terminated as of July 31, 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
7

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.