Federal Communications Commission
News Media Information 202 / 418-0500
445 12th St., S.W.
Washington, D.C. 20554
Released: August 25, 2010
WTB SEEKS COMMENT ON REQUEST OF DTV NORWICH, LLC FOR WAIVER AND
EXTENSION OF DIVESTITURE DEADLINE FOR NEW YORK MULTICHANNEL VIDEO
DISTRIBUTION AND DATA SERVICE LICENSE
Comment Date: September 15, 2010
Reply Comment Date: September 22, 2010
DTV Norwich, LLC (DTVN) holds 45 Multichannel Video Distribution and Data Service
(MVDDS) licenses. By this Public Notice
, the Wireless Telecommunications Bureau (Bureau) seeks
comment on DTVN’s Further Request for Waiver and Extension of Divestiture Deadline (Seventh
Request)1 with respect to call sign WQBD526, MVD001-New York.2 DTVN seeks a further waiver and
extension of its October 4, 2010 deadline for compliance in the New York market with Section 101.1412
of the Commission’s Rules,3 the MVDDS/cable cross-ownership rule.
This request for further waiver and extension is occasioned by Cablevision Systems
Corporation’s (Cablevision) attributable interest in DTVN. Cablevision’s interest is impermissible under
Section 101.1412(a) of the Commission’s Rules4 because it operates a cable system with a service area
that significantly overlaps the license area of DTVN’s New York MVDDS license.5 However, Section
101.1412(g) provides that an entity that would otherwise be barred from acquiring an attributable interest
in an MVDDS license by the cross-ownership restriction of Section 101.1412(a) may be a party to an
MVDDS application pursuant to the divestiture procedures specified in the rule.6 Moreover, if the
applicant is otherwise qualified, the application will be granted subject to a condition that the applicant
1 See ULS File No. 0004353040, Further Request for Waiver and Extension of Divestiture Deadline, filed by DTV
Norwich, LLC, on August 13, 2010 (Seventh Request).
2 MVDDS service areas are based on the Designated Market Areas (DMAs) delineated by Nielsen Media Research,
Inc. (“Nielsen Media”), in its publication entitled “U.S. Television Household Estimates” dated September 2002. See
47 C.F.R. § 101.1401. Designated Market Area (DMA®) is a registered trademark of Nielsen Media.
47 C.F.R. § 101.1412 (MVDDS eligibility restrictions for cable operators).
4 47 C.F.R. § 101.1412(a).
5 Under Section 101.1412(e), “significant overlap” occurs when a cable operator’s subscribers in the MVDDS
license area make up 35 percent or more of the Multichannel Video Program Distributor (MVPD) households in that
MVDDS license area. 47 C.F.R. § 101.1412(e). See also
ULS File No. 0003908576, Request for Waiver and
Extension of Divestiture Deadline, filed by DTV Norwich, LLC, on July 22, 2009 (Sixth Request) at 2, n5, citing
ULS File No. 0002022365 and FCC Form 602, Ownership Disclosure Report, Indirect Disclosable Interest Holders
(File No. 0002220772) (describing Cablevision’s 90 percent indirect interest in DTVN).
6 47 C.F.R. § 101.1412(g).
shall come into compliance with the eligibility restriction within 90 days of the final grant of the license.7
The purpose of the MVDDS/cable cross-ownership rule is to prevent cable operators from precluding the
entry of new Multichannel Video Program Distributors (MVPDs) and thereby limiting competition in the
On September 23, 2004, the Broadband Division (Division), Wireless Telecommunications
Bureau, granted DTVN the above-referenced license for the New York service area subject to the
condition that DTVN “shall come into compliance with 47 C.F.R. § 101.1412(a) [the MVDDS/cable
cross-ownership limits] within three hundred and sixty (360) days of the final grant of this authorization
(MVD001).”9 The Division granted this conditional authorization in response to DTVN’s first request for
waiver to extend the 90-day deadline to comply with the cross-ownership rule by 270 days to allow
Cablevision time to spin off its direct broadcast satellite (DBS) assets, including its interest in DTVN, to
its shareholders as a new company.10 The spin off described in the First Request
did not occur as planned
and DTVN subsequently filed five successive requests for 360-day extensions.11 The Division granted
each request12 after concluding that each extension would encourage DTVN to continue its efforts to
foster the development of MVDDS, especially considering the lack of MVDDS equipment in the market,
and would serve the purpose of the cross-ownership rule by promoting competition.13 DTVN’s current
deadline date to come into compliance with 47 C.F.R. § 101.1412(a) is October 4, 2010,14 and, at this
time, DTVN seeks as extension through the end of the current term.15
7 47 C.F.R. § 101.1412(g)(4).
8 Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co-
Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range; Amendment of the Commission's
Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees
and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers,
Ltd. to Provide a Fixed Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206, Memorandum Opinion and
Order and Second Report and Order
, 17 FCC Rcd 9614, 9679-80 ¶ 164 (2002) (MVDDS Second R&O
9 DTV Norwich, LLC, Application for Multichannel Video Distribution and Data Service License, MVD001, File
No. 0001618606-MVD001-New York, Request for Waiver and Extension of Divestiture Deadline of Section
101.1412(g)(4) of the Commission’s Rules, Order
, 19 FCC Rcd 18701, 18707 ¶ (WTB, BD 2004) (2004 Order
10 Request for Waiver and Extension of Divestiture Deadline of DTV Norwich, LLC, ULS File No. 0001618606-
MVD001 (filed on June 10, 2004) (First Request).
Request for Waiver and Extension of Divestiture Deadline, filed by DTV Norwich, LLC, on August 17, 2005
at (Second Request); Request for Waiver and Extension of Divestiture Deadline, filed by DTV Norwich, LLC, on
September 18, 2006 (Third Request); Request for Waiver and Extension of Divestiture Deadline, filed by DTV
Norwich, LLC, on September 7, 2007 (Fourth Request); Request for Waiver and Extension of Divestiture Deadline,
filed by DTV Norwich, LLC, on September 5, 2008 (Fifth Request): Request for Waiver and Extension of
Divestiture Deadline, filed by DTV Norwich, LLC, on June 23, 2009 (Sixth Request).
Letter to James R. Bayes, Esq., from Joel D. Taubenblatt, Chief, Broadband Division, Wireless
Telecommunications Bureau, dated October 13, 2005 (2005 Letter
); Letter to Wayne D. Johnsen, Esq., from Joel D.
Taubenblatt, Chief, Broadband Division, WTB, dated October 18, 2006 (2006 Letter
); Letter to Wayne D. Johnsen,
Esq., from John J. Schauble, Deputy Chief, Broadband Division, WTB, dated October 5, 2007 (2007 Letter
to Wayne D. Johnsen, Esq., from Blaise A. Scinto, Chief, Broadband Division, WTB, dated October 14, 2008 (2008
); Letter to Wayne D. Johnsen, Esq., from Blaise A. Scinto, Chief, Broadband Division, WTB, dated
October 7, 2009 (2009 Letter
13 See, e.g.
, 2007 Letter
at 4; 2005 Letter
14 See, e.g.
, call sign WQBD526 (special condition).
15 Seventh Request at 1. In the alternative, if the Commission decides not to grant a waiver extension through the
end of the current license term, DTVN requests an additional 360-day extension. Seventh Request at 6 n.19.
DTVN alleges that an extension will not harm competition but rather will enhance DTVN’s
ongoing efforts to establish viable MVDDS operations. Since October 2009, DTVN states that it has
made progress towards developing the 12 GHz equipment and service configurations needed to
successfully deploy wireless broadband, video, voice, and data services to businesses and consumers but
that additional time is needed.16
DTVN argues that regulatory uncertainty has hindered further development of MVDDS systems.
As in 2009, MVDDS has not been deployed commercially in any market and DTVN asserts that this is
largely due to the regulatory uncertainty that has surrounded MVDDS licenses. Specifically, DTVN
points out that although the Commission recently granted the request for waiver of the Commission’s
substantial service requirement, while the DTVN Construction Waiver and Extension Request
pending, DTVN and virtually all other MVDDS licensees were in regulatory limbo.17 Until the
uncertainty surrounding the status of its licenses was removed, DTVN contends that it was hindered in its
ability to foster MVDDS service and could not reasonably be expected to determine which course of
action to follow with respect to achieving compliance with the Commission's cable/MVDDS divestiture
DTVN asserts that it has continued to devote significant resources to conduct a series of trials that
confirm the technical feasibility of MVDDS service.19 DTVN states that, although its technical trials
have provided significant feedback regarding the technical viability of the service, MVDDS equipment is
still not commercially available and, to DTVN's knowledge, no MVDDS licensee has commenced
commercial operations.20 Based on its testing, DTVN has continued to take steps to improve system
performance and to work with multiple equipment suppliers to develop additional MVDDS equipment
options.21 Moreover, given the recent grant of its request for extension of the substantial service showing,
DTVN states it is in a position to take steps designed to implement a full market trial.22
DTVN argues that given the current state of the MVDDS marketplace, granting this further
extension of time will not preclude entry or limit competition in the New York market and that an
extension would also create demonstrable public benefits.23 DTVN states that although it may ultimately
seek to achieve compliance by, for example, partitioning its NY DMA MVDDS license, such an approach
may not be the best compliance option once it is determined how best to deploy MVDDS service.24 Thus,
16 Seventh Request at 3.
17 See id
. at 3-4 citing
DTV Norwich, LLC Petition for Waiver and Extension of Time to Comply With the
Commission's MVDDS Substantial Service Requirements in Section 101.1413, ULS File Nos. 0003516339 et al
12-13 (July 25, 2008) ("DTVN Construction Waiver and Extension Request). DTVN notes that virtually all
MVDDS licensees filed similar requests. See Seventh Request
at 4 citing
In the Matter of Requests 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, File Nos. 0003516339 et. al
, DA 10-1378 (rel. July 28, 2010) ("MVDDS
18 Seventh Request at 4-5.
. at 5.
. at 6.
. at 6-7.
. at 7.
grant of the requested extension, DTVN believes, will benefit the public by facilitating the efficient and
effective long-term deployment of MVDDS services.25
We hereby seek comment on the Seventh Request.
Section 1.925(b)(3) of the Commission’s Rules provides that a waiver of the Commission’s Rules
may be granted 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; (ii) or in view of 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
Interested parties may file comments on the waiver requests on or before the comment date
shown on the first page of this public notice. Parties interested in submitting reply comments must do so
on or before the reply comment date shown on the first page of this public notice. All filings should
reference the DA number of this Public Notice
and may be filed electronically in ULS27 under file number
0004353040 using the following link: http://wireless.fcc.gov/uls/index.htm?job=home
(on the left side of
the webpage, click on “ULS Pleadings”).28
Parties who choose to file by paper must file an original and four copies of each filing. If more than
one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two
additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission’s Secretary, Office of the Secretary,
Federal Communications Commission, as follows:
-Effective December 28, 2009, all hand-delivered paper filings for the Commission’s Secretary
must be delivered to FCC Headquarters at 445 12th St., S.W., Room TW-A325, Washington, DC 20554. All
hand deliveries must be held together with rubber bands or fasteners. Envelopes must be disposed of before
entering the building. The filing hours at this location are 8:00 a.m. to 7:00 p.m.
location where hand-delivered or messenger-delivered paper filings for the Commission’s
Secretary will be accepted. The Commission’s former filing location at 236 Massachusetts Ave., N.E., is
-Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must
be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
-U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445
12th Street, S.W., Washington, D.C. 20554.
Parties shall send one copy of their comments and reply comments to Best Copy and Printing, Inc.,
Portals II, 445 12th Street, S.W., Room CY-B402, Washington, D.C. 20554, (800) 378-3160, e-mail FCC@BCPIWEB.com
26 47 C.F.R. § 1.925(b)(3).
Wireless Telecommunications Bureau Enhances the Commission’s Universal Licensing System to Implement
Electronic Filing for Pleadings, Public Notice
, 21 FCC Rcd 424 (WTB 2006).
28 The pleading filing module has three steps. In Step 1, the drop down list of pleading types does not include
“Comments.” If you are filing comments (rather than a pleading type that is listed on the drop down list) please
select “Reply” from the drop down list, i.e.
, select “Reply” as the pleading type for comments and reply comments.
Enter the ULS file number in Step 2. Step 3 of the pleading file module has a free-text field where you can more
accurately describe your filing, e.g
., as comments.
The request, and comments and reply comments filed in response to this Public Notice
, will be
available for public inspection and copying online via the Universal Licensing System by entering
application File No. 0004353040. They may also be purchased from Best Copy and Printing, Inc.,
telephone (800) 378-3160, facsimile (301) 816-0169, e-mail FCC@BCPIWEB.com
Alternate formats of this Public Notice
(computer diskette, large print, audio recording, and Braille)
are available to persons with disabilities by contacting the Consumer and Governmental Affairs Bureau at
(202) 418-0530 (voice), (202) 418-0432 (TTY), or send an e-mail to email@example.com
Unless otherwise provided, requests for waiver of the Commission’s Rules are subject to
treatment by the Commission as restricted proceedings for ex parte
purposes under Section 1.1208 of the
Commission’s Rules, 47 C.F.R. § 1.1208. Because of the policy implications and potential impact of this
proceeding on persons not parties to the waiver requests, we believe it would be in the public interest to
treat this case as a permit-but-disclose proceeding under the ex parte
1.1206 of the Commission’s Rules, 47 C.F.R. §§ 1.1200(a), 1.1206. Therefore, subsequent to the release
of this Public Notice
, ex parte
presentations that are made with respect to the issues involved in the
subject waiver requests will be allowed but must be disclosed in accordance with the requirements of
Section 1.1206(b) of the Commission’s Rules, 47 C.F.R. § 1.1206(b).29 Persons making oral ex parte
presentations are reminded that memoranda summarizing the presentations must contain summaries of the
substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-
sentence description of the views and arguments presented generally is required.30
For further information, contact Mary Woytek, Esq., Broadband Division, Wireless
Telecommunications Bureau, at (202) 418-1899, TTY (202) 418-7233, or via e-mail to Mary.Woytek@fcc.gov
By the Chief, Broadband Division, Wireless Telecommunications Bureau, Federal
- FCC -
29 47 C.F.R. §§ 1.1200, 1.1206.
30 47 C.F.R. § 1.1206(b).