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T-Mobile Local Multipoint Distribution Service Extension Denial Order

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Released: October 10, 2012

Federal Communications Commission

DA 12-1608

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Matter of
)
)

T-MOBILE LICENSE, LLC
)
File Nos. 0005177718-0005177733
)
Requests for Extension of Time, or in the
)
alternative, Limited Waiver of Substantial Service )
Requirements for 16 Local Multipoint Distribution )
Service Licenses
)
)

MEMORANDUM OPINION AND ORDER

Adopted: October 9, 2012

Released: October 10, 2012

By the Chief, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order, we deny T-Mobile License, LLC’s (“T-
Mobile”) requests for extension of time to demonstrate compliance with the substantial service
requirements for its 16 Local Multipoint Distribution Service (“LMDS”) licenses, 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
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


1 See Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission’s Rules to Redesignate the 27.5 GHz
Frequency Band, to Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules and Policies For Local
Multipoint Distribution Service and For Fixed Satellite Services, CC Docket No. 92-297, Second Report and Order,
Order on Reconsideration and Fifth Notice of Proposed Rulemaking
, 12 FCC Rcd 12545, 12605 ¶ 136 (1997)
(”Second LMDS Report and Order”); see also Rand McNally Commercial Atlas & Marketing Guide 36-39 (123rd
ed. 1992). Rand McNally is the copyright owner of the Major Trading Area (MTA) and BTA Listings, which list
the BTAs contained in each MTA and the counties within each BTA, as embodied in Rand McNally’s Trading Area
System MTA/BTA Diskette, and geographically represented in the map contained in Rand McNally’s Commercial
Atlas & Marketing Guide. The conditional use of Rand McNally copyrighted material by interested persons is
authorized under a blanket license agreement dated February 10, 1994 and covers use by LMDS applicants. This
agreement requires authorized users of the material to include a legend on reproductions (as specified in the license
agreement) indicating Rand McNally ownership. The Commission has allocated the LMDS for operations in a total
of 493 BTAs throughout the nation.
2 See Second LMDS Report and Order, 12 FCC Rcd at 12556 ¶ 12.
3 See id.

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DA 12-1608

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 in question here were originally issued to Eclipse Communications
Corporation on June 5, 1998 as a result of Auction No. 17.13 After a series of assignments of the licenses,
on February 1, 2006, the Bureau consented to an assignment of the licenses from Voice Stream PCS
LMDS Corporation (VoiceStream) to T-Mobile.14


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. 0000000132 (granted June 5, 1998); see also FCC Announces the Conditional Grant of Local
Multipoint Distribution Service Licenses, Public Notice, 13 FCC Rcd 16518 (WTB 1998). The licenses in question
are Stations WPLM355 (Pueblo, CO), WPLM362 (Seattle-Tacoma, WA), WPLM363 (Olympia-Centralia, WA),
WPLM364 (Yakima, WA), WPLM365 (Bremerton, WA), WPLM366 (Bellingham, WA), WPLM367 (Aberdeen,
WA), WPLM368 (Port Angeles, WA), WPLM369 (Longview, WA), WPLM370 (Salt Lake City-Ogden, UT),
WPLM374 (Las Cruces, NM), WPLM375 (Santa Fe, NM), WPLM386 (Honolulu, HI), WPLM387 (Hilo, HI),
WPLM388 (Kahului-Wailuku-Lahaina, HI), and WPLM389 (Coffeyville, KS).
14 See File No. 0002468891 (consented to Feb. 1, 2006); see also Letter from William J. Hackett, Regulatory
Compliance Specialist, Western Wireless to Mary Shultz, Branch Chief, Licensing and Technical Analysis Branch,
Wireless Telecommunications Bureau (filed July 2, 1998), informing Commission of pro forma assignment of
2

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5.
T-Mobile was originally required to demonstrate substantial service by June 5, 2008, or
10 years after the initial license grant date.15 On February 27, 2008, T-Mobile 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 T-Mobile – 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
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.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 T-
Mobile 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 T-Mobile and the other LMDS licensees, under the extended buildout deadline set
by the Bureau.21
7. On April 24, 2012, T-Mobile 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 its 16 LMDS licenses.22 Invoking the Commission’s general waiver authority under Section
1.925 of the Commission’s Rules, T-Mobile 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





licenses from Eclipse to Western PCS LMDS Corporation); File No. 0000016540 (consented to July 9, 1999)
(assignment from Western PCS LMDS Corporation to VoiceStream).
15 See Second LMDS Report and Order, 12 FCC Rcd at 12657 ¶ 259.
16 File Nos. 0003338460-0003338464, 0003338472-0003338482 (filed Feb. 27, 2008).
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. 0005177718-0005177733 (filed Apr. 24, 2012) (Extension Applications). With each Extension
Application, T-Mobile filed an exhibit entitled “Request for Waiver and Extension of Time to Complete
Construction” (Extension and Waiver Request).
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December 1, 2013.23 T-Mobile argues that market conditions and the economy “ha[ve] not supported
material additional development of LMDS technologies since 2008 and [LMDS] does not yet represent an
attractive alternative to other backhaul technologies.”24 T-Mobile also explains that for approximately
nine months, it was seeking regulatory approval for a transaction with AT&T, and that many business
initiatives, including building out LMDS spectrum, were not pursued during that time.25 T-Mobile states,
“T-Mobile remains committed to planning, marketing, site surveying, and acquiring the equipment
necessary to incorporate LMDS into its business operations when LMDS becomes an attractive
alternative to other forms of backhaul and will continue to take concrete steps to do so.”26

III.

DISCUSSION

8.
We find that T-Mobile 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, T-Mobile’s LMDS
licenses automatically terminated, by operation of Sections 1.946(c) and 1.955(a)(2) of the Commission’s
Rules, as of June 1, 2012.27 We discuss these findings in detail below.

A.

Extension Requests

9.
T-Mobile requests a further eighteen month extension of time, until December 1, 2013, to
demonstrate substantial service.28 As noted above, this is the second extension that T-Mobile has
requested for constructing these licenses. To be eligible for an extension of time to construct, T-Mobile
must show that its “failure to meet the construction deadline is due to involuntary loss of site or other
causes beyond its control.” 29 We conclude that T-Mobile has not met this threshold.
10.
T-Mobile argues that it has not constructed because of the lack of development of
LMDS equipment for backhaul and because it did not pursue developing its LMDS spectrum while it was
pursuing its proposed merger with AT&T. 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.30 In view of this precedent, we find that none of the factors cited
by T-Mobile demonstrate that its failure to construct was caused by circumstances beyond its control.


23 Extension and Waiver Request at 1.
24 Id. at 2.
25 Id. at 2-3.
26 Id. at 4.
27 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).
28 Extension and Waiver Request at 1.
29 47 C.F.R. § 1.946(e)(1).
30 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
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
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11.
First, we find that the pace of the development of the market for LMDS equipment
wireless backhaul, by itself, does not justify granting an extension, because T-Mobile 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 T-Mobile, not an inevitable result of circumstances beyond its control. Moreover, even if
wireless backhaul presented the only feasible use of LMDS spectrum, T-Mobile’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.31 By 2009, that figure
increased to 12.3 percent.32 As a carrier with increasing demand for backhaul, T-Mobile would be in a
better position than most licensees to develop LMDS equipment for backhaul use. Despite that fact, T-
Mobile has made no attempt to incorporate LMDS spectrum into its backhaul plans. Furthermore, T-
Mobile does not attempt to show that it made any active attempt to develop LMDS equipment, either
through its own efforts or by working with equipment suppliers. Indeed, even now, T-Mobile has only
committed to develop its LMDS licenses at some unspecified future date “when LMDS becomes an
attractive alternative to other forms of backhaul.”33 Finally, we note that many LMDS licensees did meet
the June 1, 2012 deadline and built facilities.34 Under those circumstances, we conclude that T-Mobile
made a voluntary decision not to actively pursue development of LMDS facilities.
12.
T-Mobile’s contemplated merger with AT&T also does not justify an extension. T-
Mobile’s decision to enter into merger negotiations was a voluntary business decision that cannot justify
an extension. Furthermore, the Commission’s rules prohibit granting an extension if the station was not
built because of the licensee’s intent to assign or transfer control of the subject license.35
13.
We find that T-Mobile, which made no attempt to commence construction of its LMDS
licenses in advance of the construction deadline, is readily distinguishable from several 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. T-Mobile chose not to build facilities in advance of the
deadline. Thus, its failure to construct its licenses was the result of its own business decision.
Furthermore, these licensees requested extensions of six months or less, while T-Mobile is requesting an
18 month extension.





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).
31 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).
32 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.
33 Extension and Waiver Request at 4.
34 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.
35 See 47 C.F.R. § 1.946(e)(3).
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14.
In this regard, T-Mobile’s situation is readily distinguishable from 2 Lightspeed LP,
which received an extension of time for four LMDS licenses from the Division.36 Unlike T-Mobile, 2
Lightspeed had made significant progress toward the construction benchmarks, having built out the
majority of its LMDS licenses prior to the June 1, 2012 deadline.37 However, this progress was impeded
when one of the two key partners in the venture was medically incapacitated.38
Furthermore, 2
Lightspeed requested only a nine month extension, which is half the time T-Mobile is seeking.
15.
T-Mobile cites a series of cases in which the Bureau granted extensions of the buildout
requirement in other services.39 Those cases are distinguishable from T-Mobile’s situation. In many of
those cases, there was a systemic problem with equipment availability that affected all licensees in the
band.40 Here, by contrast, many LMDS licensees have been able to obtain and deploy equipment. In
other cases, there were broader issues with the service rules that delayed or prevented deployment.41 No
party has argued that the LMDS service rules are responsible for delays in deploying service. Lastly, in
the case of the Educational Broadband Service, the Bureau granted a six-month extension because
licensees had acted diligently but many EBS licensees lacked “a meaningful opportunity to integrate
newly constructed systems into their educational missions.”42 We do not find T-Mobile’s conduct to be
diligent, and it does not face the same types of issues that EBS licensees faced.


36 See File Nos. 0005222510-0005222513 (filed May 17, 2012; granted July 23, 2012).
37 See File Nos. 0005245422, 0005245426, 0005257919, 0005257935, 0005257944 (filed June 1 and 11, 2012).
38 Request for Limited Extension, 2 Lightspeed LP (filed May 17, 2012) at 7-8.
39 Extension and Waiver Request at 4-6.
40 See, e.g., Request of Ten Licensees of 191 Licenses in the Multichannel Video and Data Distribution Service for
Waiver of the Five-Year Deadline for Providing Substantial Service, Order, 25 FCC Rcd 10097, 10102 ¶ 10 (WTB
2010) (waiver of interim substantial service deadline granted to MVDDS licensees because “there is a lack of viable,
affordable equipment for MVDDS that can be deployed in the 12.2-12.7 GHz band.”); Requests of Progeny LMS,
LLC and PCS Partners, L.P. for Waiver of Multilateration Location and Monitoring Service Construction Rules, WT
Docket No. 08-60, Order, 23 FCC Rcd 17250, 17252 ¶ 7 (WTB 2008) (extension of construction requirement
granted for Multilateration Location and Monitoring Service Economic Area licenses, Bureau notes that “no M-
LMS equipment is commercially available for current deployment in the United States and . . . no M-LMS licensee
provides service today.”); Consolidated Request of the WCS Coalition for Limited Waiver of Construction Deadline
for 132 WCS Licenses, WT Docket No. 06-102, Order, 21 FCC Rcd 14134, 14139-14140 ¶ 10 (WTB 2006) (WCS
Order
) (construction deadline extended until July 21, 2010 for WCS licensees; “participation by almost all of the
licensees in the WCS industry in this proceeding leads us to believes that the technical and equipment challenges in
this band are widespread”); Request of Warren C. Havens for Waiver of The Five-Year Construction Requirement
For 220 MHz Service Part II Economic Area and Regional Licensees, Memorandum Opinion and Order, 19 FCC
Rcd 12994, 13000-13001 ¶ 15 (WTB 2004) (Five-year construction requirement until November 5, 2007 for all 220
MHz Phase II EA, regional, and nationwide licensees. “The two companies that originally manufactured five
kilohertz voice equipment no longer do so. We find that the loss of that equipment was a unique circumstance that
have frustrated licensees’ efforts to meet the construction requirements.”); FCI 900, Inc., Memorandum Opinion and
Order
, 16 FCC Rcd 11072, 11077 ¶ 7 (WTB 2001) (16 month extension of construction deadline granted for 900
MHz Major Trading Area licensees - no digital voice equipment available for the 900 MHz SMR band).
41 See WCS Order, 21 FCC Rcd at 14139 ¶ 10 (noting that restrictive out-of-band emission limits may have impeded
development of WCS equipment); Request of Licensees in the 218-219 MHz Service for Waiver of the Five-Year
Construction Deadline, Order, 14 FCC Rcd 5190, 5194 ¶ 9 (WTB PS&PWD 1999) (suspending construction
benchmark while notice of proposed rulemaking proposing rule changes to service was pending).
42 National EBS Association and Catholic Television Network, WT Docket No. 11-22, Memorandum Opinion and
Order
, 26 FCC Rcd 4021, 4026 ¶ 11 (WTB 2011).
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16. 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.43 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, including by T-Mobile. 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, T-Mobile made no attempt to develop its LMDS
spectrum. We therefore conclude that the decision to grant an extension to LMDS licensees in 2008 does
not support T-Mobile’s request for yet more time.

B.

Waiver Request

17.
To be granted a waiver of the June 1, 2012 construction deadline, T-Mobile 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.44 As is discussed more fully below, we conclude that T-Mobile has failed to make the
requisite showing, and we therefore deny its waiver request.
18.
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.” 45
T-
Mobile claims, “The development of LMDS technology . . . is simply not yet sufficiently mature to justify
using LMDS spectrum today.”46 In fact, many other licensees made a contrary judgment and built their
facilities. Granting T-Mobile 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.


43 LMDS Order, 23 FCC Rcd at 5905 ¶ 25.
44 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).
45 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
, FCC 12-
87 (rel. Aug. 3, 2012) (“Wireless Backhaul 2nd R&O”) at ¶ 104, 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.”).
46 Extension and Waiver Request at 3.
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19.
We also conclude that T-Mobile has not shown requiring compliance with the substantial
service rules is inequitable, unduly burdensome, and contrary to the public interest. As we have
previously discussed, T-Mobile’s decision not to construct its LMDS licenses was a business decision.
Other licensees made other business decisions that led them to build out their licenses.47
20.
T-Mobile argues that cancelling the licenses and reauctioning the spectrum would not
be in the public interest because it allegedly would “be many years before the spectrum is relicensed
and the new licensee is obligated to place the spectrum in operation.”48 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, T-
Mobile 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 designed to
bring service to the public as expeditiously as possible.49 T-Mobile and its predecessors have had
these licenses for fourteen years and have done nothing with them. We agree with T-Mobile that the
licenses in question 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.
21.
Authorizations for LMDS licenses automatically terminate if the licensee fails to meet
construction or coverage requirements.50 In light of our decision to deny T-Mobile’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, T-Mobile’s licenses automatically terminated, by operation of Sections 1.946(c) and
1.955(a)(2) of the Commission’s Rules,51 as of June 1, 2012.

IV.

CONCLUSION AND ORDERING CLAUSES

22.
T-Mobile 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, T-Mobile’s
licenses to operate LMDS stations automatically terminated, by operation of Commission rule, as of June
1, 2012.
23.
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. 0005177718-0005177733) filed by T-Mobile License, LLC on
April 24, 2012 ARE DENIED.
24.
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


47 See note 30, supra.
48 Id. at 5.
49 See Wireless Backhaul 2nd R&O at ¶ 104.
50 47 C.F.R. §§ 1.946(c) and 1.955(a)(2).
51 Id.
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UPDATED to reflect that the licenses issued to T-Mobile License, LLC for Local Multipoint Distribution
Service Stations WPLM355, WPLM362, WPLM363, WPLM364, WPLM365, WPLM366, WPLM367,
WPLM368, WPLM369, WPLM370, WPLM374, WPLM375, WPLM386, WPLM387, WPLM388, and
WPLM389 TERMINATED as of June 1, 2012.
25.
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
Ruth Milkman
Chief, Wireless Telecommunications Bureau
9

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