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Northern Michigan University 2010 EBS Filing Freeze Waiver Order

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Released: November 8, 2013

Federal Communications Commission

DA 13-2148

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Application of
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THE BOARD OF TRUSTEES OF NORTHERN
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File No. 0003872694
MICHIGAN UNIVERSITY
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For a New Educational Broadband Service Station
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MEMORANDUM OPINION AND ORDER

Adopted: November 7, 2013

Released: November 8, 2013

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

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order, subject to certain conditions, we grant to the
Board of Trustees of Northern Michigan University (NMU or Northern Michigan University) a waiver of
the filing freeze on new Educational Broadband Service (EBS) applications and a waiver of Section
1.1913(b) of the Commission’s rules to permit manual filing of its application.

II.

BACKGROUND

2.
2500-2690 MHz Band Generally. In developing regulatory policies in the 2500-2690
MHz band over the last several decades, the Commission has been cognizant of this band’s potential to
host a variety of services. In 1963, the Commission established the Instructional Television Fixed Service
(ITFS) in the 2500-2690 MHz band,1 envisioning that it would be used for transmission of instructional
material to accredited public and private schools, colleges and universities for the formal education of
students.2 In 1983, in response to the demand for additional spectrum for delivery of video entertainment
programming to subscribers, the Commission re-allotted eight ITFS channels (the E and F channel
blocks) and associated response channels for use by the Multipoint Distribution Service (MDS).3 In

1 See Educational Television, Docket No. 14744, Report and Order, 39 FCC 846 (1963), recon. denied 39 FCC 873
(1964) (ETV Decision).
2 See Amendment of the Commission’s Rules With Regard to the Instructional Television Fixed Service, the
Multipoint Distribution Service, and the Private Operational Fixed Microwave Service; and Applications for an
Experimental Station and Establishment of Multi-Channel Systems, Report and Order, 48 Fed. Reg. 33873, 33875 ¶
9 (1983) (1983 R&O) (citing ETV Decision, 39 FCC 846, 853 ¶ 25.).
3 See Amendment of Parts 2,21,74 and 94 of the Commission’s Rules and Regulations in regard to frequency
allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private
Operational Fixed Microwave Service, Gen Docket No. 80-112 and CC Docket No. 80-116, Report and Order, 94
FCC 2d 1203 (1983) (First Leasing Decision).

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conjunction with this re-allotment, the FCC permitted ITFS licensees to lease “excess capacity” on their
facilities to commercial entities.4
3.
In April 2003, the Commission proposed new technical rules and a new band plan for
ITFS and MDS spectrum (changing the service names to EBS and Broadband Radio Service (BRS),
respectively).5 At the same time, it implemented a filing freeze with respect to all applications for new
BRS and EBS licenses, as well as for major modifications of those licenses, in order to permit the orderly
and effective resolution of issues in the BRS/EBS proceeding.6 In August 2003, the Commission
modified the freeze by permitting the filing of applications for new BRS licenses and major modifications
of those licenses.7 The Commission also permitted the filing of applications for major modifications of
EBS licenses, but maintained the filing freeze with respect to applications for new EBS licenses.8 On
June 10, 2004, the Commission adopted new rules that initiated a fundamental restructuring of the 2500-
2690 MHz band in order to provide both existing EBS and BRS licensees and potential new entrants
greater flexibility in order to encourage the highest and best use of spectrum domestically and
internationally. 9 In 2008, the Commission sought comment on how to license unassigned EBS
spectrum.10
4.
Northern Michigan University Applications. NMU is an accredited university located in
Marquette, Michigan that serves approximately 9,700 students with over 1,000 faculty and staff.11 The
University’s educational mission includes a strong emphasis on technological-based learning, in particular
because of its remote location.12
5.
On December 4, 2007, NMU filed an application seeking a new EBS authorization for
four channels.13 On August 6, 2008, the Wireless Telecommunications Bureau (“Bureau”) granted NMU

4 Id. at 1206-07 ¶ 4.
5 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands.
Notice of Proposed Rulemaking and Memorandum Opinion and Order, WT Docket No. 03-66, 18 FCC Rcd 6722,
6811 ¶ 226, 6825 ¶ 260 (2003) (NPRM and MO&O).
6 See NPRM and MO&O, 18 FCC Rcd at 6811 ¶ 226, 6825 ¶ 260.
7 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of fixed and
Mobile Broadband Access, Educational and Other advanced Services in the 2150-2162 and 2500-2690 Bands.
Second Memorandum Opinion and Order
, WT Docket No. 03-66, 18 FCC Rcd 16848 ¶ 1 (2003) (Second MO&O).
8 Id.
9 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of fixed and
Mobile Broadband Access, Educational and Other advanced Services in the 2150-2162 and 2500-2690 MHz Bands.
Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 19 FCC Rcd 14165 (2004)
(BRS/EBS R&O and FNPRM).
10 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands,
Third Order on Reconsideration and Sixth Memorandum Opinion and Order and Fourth Memorandum Opinion and
Order and Second Further Notice of Proposed Rulemaking and Declaratory Ruling,
WT Docket No. 03-66, 23 FCC
Rcd 5992, 6060-6068 ¶¶ 180-204 (2008) (Second FNPRM).
11 See Waiver Request at 2.
12 Id. at 2.
13 File No. 0003250992 (filed Dec. 7, 2007) (“2007 NMU Application”). Specifically, NMU sought a Geographic
Service Area (GSA) with a 35 mile radius around coordinates 46-30-48.8 N, 087-23-58.5 (NAD83) on post-
2

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waivers of the filing freeze on new EBS applications and of the electronic filing requirement.14 The
Bureau found that unique circumstances were presented by NMU’s situation; i.e., there was no EBS
license that covered Marquette, Michigan, and NMU proposed to use the spectrum solely to meet its
educational needs and the needs of the surrounding community.15 The Bureau also concluded that a
waiver grant would be consistent with Commission precedent.16
6.
The Bureau placed three conditions on the grant of the freeze waiver, based on
commitments made by NMU. First, the Bureau adopted as a license condition NMU’s commitment not
to lease its spectrum.17 Second, the Bureau held, consistent with NMU’s request, that NMU’s GSA shall
not include any area within the GSA of any previously licensed co-channel EBS station.18 Third,
although the discrete operations proposed in NMU’s 2007 Application were not within the Canadian
coordination zone, to the extent that NMU subsequently wished to expand operations into the portion of
its GSA that is within the coordination zone, the Bureau required NMU to comply with the coordination
requirements of the relevant agreement between the United States and Canada.19 The Bureau also waived
the electronic filing requirement because the Universal Licensing System was not configured to accept
applications for new EBS stations.20
7.
On June 12, 2009, NMU filed the instant application21 and waiver request in support of
its application for one additional Educational Broadband Service (EBS) channel in the area of Marquette,
Michigan.22 In the Application, NMU asserts that it has moved diligently to deploy the WiMAX network
authorized in the 2008 Waiver Order.23 NMU notes that it has installed its first WiMAX access point to

transition EBS channels A4 (2572.00-2578.00 MHz), B4 (2578-2584 MHz), C4 (2584-2590 MHz), and D4 (2590-
2596 MHz)
14 See In the Matter of Application of The Board of Trustees of Northern Michigan University For a New
Educational Broadband Service Station, Memorandum Opinion and Order, 23 FCC Rcd 11832 (WTB 2008) (“2008
Waiver Order”).
15 Id. at 11836 ¶¶ 10-11.
16 Id. at 11836 ¶ 12, citing Gateway Telecom LLC d/b/a StratusWave Communications; Applications For New
Educational Broadband Service Stations on the A and B Group Channels in Centerville, Ohio; and the A and B
Group Channels in Arden, West Virginia, Memorandum Opinion and Order, 22 FCC Rcd 15789 (2007)
(StratusWave MO&O).
17 2008 Waiver Order, 23 FCC Rcd at 11837 ¶ 13.
18 Id. at 11837 ¶ 14.
19 Id., citing Interim Arrangement Concerning the Use of the Frequency Bands 2150 – 2162 MHz and 2500 – 2690
MHz by MCS and MDS Stations Near the Canada/United States of America Border (Dec. 5, 1997). A similar
condition was placed on the grant of NMU’s original Application for Special Temporary Authority (STA), File No.
0003187729 (filed Oct. 2, 2007). See License for Station WQHQ337 as granted on October 3, 2007 and renewed on
January 17, 2008, File No. 0003245253.
20 2008 Waiver Order, 23 FCC Rcd at 11837-11838 ¶ 15.
21 File No. 0003872694 (filed Jun. 12, 2009) (Application). NMU filed the application as a request for modification
of EBS license WQJZ200. Because that license already holds four channels, the application is properly treated as an
application for a new EBS authorization.
22 Application, Exhibit A - Request for Waiver (filed Jun. 12, 2009) (Waiver Request). Section 1.913(b) of the
Commission’s Rules states in relevant part that “all applications and other filings using FCC Forms 601 through 608
or associated schedules must be filed electronically in accordance with the electronic filing instructions provided by
ULS.” 47 C.F.R. § 1.913(b).
23 Waiver Request at 3.
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field test signal propagation and coverage, began construction of a new tower facility, negotiated
agreements for antenna space and an agreement with its hardware vendor to supply NMU with WiMAX
enabled laptops, and purchased USB-style WiMAX devices and other customer premises equipment for
use with its new broadband network.24
8.
NMU explains that in its efforts to expand learning opportunities for its students by
deploying a WiMAX network, it has discovered that the 24 megahertz of spectrum granted in the 2008
Waiver Order would be insufficient in light of the WiMAX equipment now being manufactured.25
Specifically, NMU asserts that it has discovered that only WiMAX equipment using 10 megahertz
channels is currently available and therefore NMU would only be able to use two 10 megahertz channels
of the 24 megahertz allocation, thus leaving the remaining four megahertz unusable.26 In addition, NMU
explains that this current configuration only permits 240-degree coverage at each tower site, whereas the
addition of one more 6 megahertz channel will allow for 360-degree coverage.27 NMU now requests the
G4 EBS channel so that it can have a full compliment of three 10 megahertz channels with the same
technical parameters outlined in the 2008 Waiver Order.28 NMU contends that the Bureau’s rationale for
granting waivers to NMU in 2008 applies here.29 NMU indicates that it intends to use its additional EBS
license “solely for educational purposes.”30 Specifically, NMU states that it will not use this license for
any commercial purpose and that it does not intend to lease any spectrum associated with this Application
to another entity.31
9.
NMU’s Application was listed on public notice as accepted for filing on June 24, 2009.32
No petitions to deny or other oppositions were filed.

III.

DISCUSSION

10.
As noted, NMU seeks both a waiver of the filing freeze on new EBS applications and a
waiver of the electronic filing requirement for such applications, to permit it to use available EBS
channels to operate a WiMAX network for the provision of educational and instructional material.33 The
Commission may grant a request for a waiver if it is shown that: (i) 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 (ii) in view of unique or unusual factual
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.34 As discussed below, we

24 Id. at 3-4.
25 Id. at 4.
26 Id.
27 Id. at 4-5.
28 Id. at 5.
29 Id. at 6.
30 Id. at 5.
31 Id.
32 See Wireless Telecommunications Bureau Market-Based Applications Accepted for Filing, Report No. 5047,
Public Notice (rel. Jun. 24, 2009) at 2.
33 See Waiver Request at 1.
34 47 C.F.R. § 1.925(b)(3).
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conclude that NMU has met the waiver standard with respect to both of its requests, and accordingly we
grant its Waiver Request, subject to the conditions outlined below.
11.
We conclude that application of the filing freeze would be inequitable and contrary to the
public interest under the unique circumstances presented by NMU. Specifically, we find that, absent
access to the additional channel of EBS spectrum, NMU would face substantial challenges in providing
educational content to all of the members of its school community, as well as members of the Marquette
community, a relatively remote rural location. As was determined in the 2008 Waiver Order, the areas
surrounding Marquette have no broadband access in residences or schools because cable and telephone
providers have not deployed service in those areas and because there is no EBS licensee that covers the
Marquette area.35 NMU has done much of the work necessary to develop its WiMAX network, but in
order to fully deploy this network, it needs an additional channel. Without any other EBS licensees in the
Marquette area, NMU cannot attempt to acquire or lease spectrum from another EBS licensee. It
therefore has no alternative to asking the Commission for an additional channel. Furthermore, given the
urgent need for educational broadband on the NMU campus and surrounding areas, we do not believe that
asking NMU to wait until the Commission develops a new mechanism for assigning unassigned EBS
spectrum is appropriate. We therefore conclude that NMU has justified a waiver of the EBS filing freeze
under the second prong of the waiver standard.
12.
We will impose the same conditions on the grant of this authorization that the Bureau
imposed in the 2008 Waiver Order. In this regard, we adopt as a license condition NMU’s commitment
in the current Application and the 2007 NMU Application not to lease its spectrum.36 Section 27.1201(a)
of the Commission’s Rules states that a “license for an Educational Broadband Service stations will be
issued only to an accredited institution…engaged in the formal education of enrolled students.”37 NMU is
such an institution and has indicated that it will use the proposed EBS system solely to meet the
educational needs of the University and its surrounding community.38 The provision of educational
broadband services via a new EBS license would be consistent with the Commission’s view that, “the
public interest favors preserving [EBS] spectrum for licensing to [educators] and that doing so will further
the educational objectives that led to the establishment of [EBS].”39 We find that NMU’s concrete plan
to put the spectrum to use immediately solely for educational purposes and its commitment not to lease
the spectrum constitute unique circumstances that will ensure “that the spectrum is used for educational
purposes”40 justifying a waiver of the filing freeze.
13.
We place the further condition on NMU’s license that its GSA shall not include any area
within the GSA of any previously licensed co-channel EBS station.41 In addition, although the discrete
operations proposed in NMU’s Application42 are not within the Canadian coordination zone, to the extent

35 See 2008 Waiver Order, 23 FCC Rcd at 11836 ¶ 10.
36 See Waiver Request at 5; 2007 NMU Application, Waiver Request at 6.
37 47 C.F.R. § 27.1201(a).
38 Waiver Request at 7.
39 See StratusWave MO&O, 22 FCC Rcd at 15796 ¶ 15.
40 See 2008 Waiver Order, 23 FCC Rcd at 11837 ¶ 13.
41 Waiver Request at 5; 2007 NMU Application, Waiver Request at 11. Our analysis indicates there is a very slight
overlap between NMU’s proposed GSA and the GSA of EBS Station WNC762, licensed to Regional Educational
Media Center #1.
42 See Waiver Request at 5.
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that NMU subsequently wishes to expand operations into the portion of its GSA that is within the
coordination zone, it must comply with the coordination requirements of the relevant agreement between
the United States and Canada.43 Specifically, prior to operating within 120 kilometers of the Canadian
border, NMU must either file an application for an individual transmitter authorization with the
Commission, which will be coordinated with Canada,44 or directly coordinate with affected licensees
across the border, as permitted under the agreement with Canada.
14.
With respect to the electronic filing requirement contained in Section 1.1913(b) of the
Commission’s Rules,45 we observe that the Commission’s electronic Universal Licensing System (ULS)
is not currently configured to accept applications such as the one submitted by NMU. We therefore
conclude that, in light of these circumstances, application of the rule would be inequitable and contrary to
the public interest because it would be unfair to reject an application for failure to file electronically when
electronic filing capability is not available. We therefore grant NMU a waiver to permit manual filing of
its Application.
15.
Based upon the evaluation of the record before us, we conclude that NMU has
demonstrated that continued application of the filing freeze and electronic filing requirement would be
inequitable, unduly burdensome and contrary to the public interest, given the unique circumstances of this
case. We also find that waiving the filing freeze and the electronic filing requirement will facilitate the
provision of educational material through a broadband network in Northern Michigan and will further the
Commission’s goals of ultimately providing all Americans with access to ubiquitous wireless broadband
connections, regardless of their location.46 We note that the waivers granted in the instant Memorandum
Opinion and Order
are based on the unique circumstances of this case, and do not prejudge the
Commission’s consideration of the appropriate mechanism generally for licensing unassigned EBS
spectrum.47

IV.

CONCLUSION AND ORDERING CLAUSES

16.
For the reasons discussed above, we grant NMU’s requests for waiver of (1) the filing
freeze that was imposed by the Commission on new EBS applications in the Commission’s April 2003,
NPRM and MO&O, and, (2) the electronic filing requirement in Section 1.1913(b) of the Commission’s
Rules. We also direct the Broadband Division to process NMU’s Application in accordance with the
requirements set forth in this Memorandum Opinion and Order and the Commission’s rules.
17.
Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of
1934, as amended 47 U.S.C. § 154(i), and Section 1.925(b)(3) of the Commission’s Rules, 47 C.F.R. §
1.925(b)(3), that the waiver requests filed by Northern Michigan University on June 12, 2009 in
connection with File No. 0003872694 ARE GRANTED, subject to the conditions noted below.
18.
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 that the licensing staff of the Broadband Division,

43 Interim Arrangement Concerning the Use of the Frequency Bands 2150 – 2162 MHz and 2500 – 2690 MHz by
MCS and MDS Stations Near the Canada/United States of America Border (Dec. 5, 1997).
44 See 47 C.F.R. § 27.1209(b)(1)(i).
45 See 47 C.F.R. § 1.913(b).
46 FCC Strategic Plan 2006-2011 at 5. In turn, this goal is based upon the statutory requirement that the
Commission “encourage the deployment on a reasonable and timely basis of advanced telecommunications
capability to all Americans.” Telecommunications Act of 1996, P.L. 104-104, Section 706(a).
47 See Second FNPRM, supra.
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Wireless Telecommunications Bureau SHALL PROCESS File No. 0003872694 in accordance with this
Memorandum Opinion and Order and the Commission’s Rules.
19.
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 that the following conditions SHALL BE IMPOSED on
any authorizations issued to Northern Michigan University as a result of the application it has filed:
The Geographic Service Area of this station shall not include any area within the GSA of
any previously licensed co-channel EBS station.
Operation within 120 kilometers of the Canadian border is prohibited without prior
compliance with the coordination requirements of the Interim Arrangement Concerning
the Use of the Frequency Bands 2150 – 2162 MHz and 2500 – 2690 MHz by MCS and
MDS Stations Near the Canada/United States of America Border or any subsequent
agreement with Canada.
The Board of Trustees of Northern Michigan University shall not lease any spectrum
associated with this license to another entity.
20.
This action is 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

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