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Performance Learning Academy EBS Filing Freeze Waiver Order

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Released: November 8, 2013

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Before the

Federal Communications Commission

Washington, D.C. 20554

In the matter of
)
)

PERFORMANCE LEARNING COOPERATIVE
)
File No. 0003879047
d/b/a PERFORMANCE LEARNING ACADEMY )
)
Application for New Educational Broadband
)
Service Station
)
)

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, we deny the request of Performance Learning
Cooperative d/b/a Performance Learning Academy (PLA) for a waiver of the filing freeze on new
Educational Broadband Service (EBS) applications, and direct dismissal of its application for four vacant
A group and four vacant B group Educational Broadband Service (EBS) channels in Cookeville,
Tennessee.

II.

BACKGROUND

2.
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 conjunction with this re-

1 See Educational Television, Docket No. 14744, Report and Order, 39 FCC 846 (1963) (ETV Decision), recon.
denied
39 FCC 873 (1964).
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 at 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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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 still 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.
PLA is a non-profit, accredited private school in Cookeville, Tennessee.11 PLA states
that its mission is to promote an environment for success and to create a partnership with parents and the
community.12 PLA states that it is constantly looking for new and unique ways to teach and engage
children, such as, PLA notes, utilizing interactive whiteboards in classrooms.13 PLA notes that it is
ambitiously pursuing charter status in the state of Tennessee, a charter school being one in which the state
pays for a child to attend school in a private school environment when the child has been unable to learn
effectively in a traditional public school setting.14 Because the state of Tennessee only supports charter
schools in metropolitan areas, and not in rural areas, and because Cookeville is only considered a

4 Id. at 1206-07 ¶ 4.
5 See 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 File No. 0003879047 (filed June 18, 2009) (“Application”), Performance Learning Cooperative d/b/a Performance
Learning Academy Request for Waiver of FCC Filing Freeze and Section 1.913(b) of the Commission’s Rules
(“Waiver Request”) at 1.
12 Id.
13 Id. at 2.
14 Id.
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micropolitan area, PLA is actively seeking to change Tennessee legislation.15 PLA states that it has
partnered with the Communications Academy to undergo a major project in which PLA plans to increase
the scope of its classes through a virtual school.16 PLA hopes to provide these on-line classes to students
in rural areas at no or little cost through the use of potential EBS channels and prospective charter school
status.17 Specifically, PLA states that it plans to provide on-line charter classes to students within a thirty
mile radius of Cookeville, an area of approximately 5000 square miles.18 According to PLA, the
projected area, most of which encompasses rural areas, would reach a potential student population of
50,000 students who currently have no access to charter classes.19 PLA contends that many of the
students within these communities are in desperate need of non-traditional educational opportunities.20
PLA notes that the parents of some of these children must travel great distances each day to drop their
children off at PLA, an expensive task given the price of fuel, and PLA submits letters of support from
several parents.21
5.
On June 18, 2009, PLA filed its Application for four vacant A group and four vacant B
group Educational Broadband Service (EBS) channels in Cookeville, Tennessee.22 In its Application,
PLA seeks waiver of: (a) the filing freeze that was imposed by the Commission on new EBS applications
in the Commission’s April 2003 NPRM and MO&O that proposed new technical rules and a new band
plan for EBS and Broadband Radio Service (BRS) spectrum;23 and (b) Section 1.913(b) of the
Commission’s rules to permit manual filing of the Application.24 PLA’s Application is opposed by the
National EBS Association (NEBSA),25 the Tennessee Board of Regents (TBR),26 and Clearwire
Corporation (Clearwire).27 For the reasons stated below, we grant PLA’s request for waiver of the

15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id. at 2 and Exhibit 2.
22 Application.
23 See Waiver Request at 1. See also 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) (stating in relevant part
that “[i]t is …. ordered that applications for new MDS or ITFS licenses, major modifications of MDS stations, or
major changes to ITFS stations other than applications for license assignments or transfers of control WILL NOT
BE ACCEPTED until further notice.”)
24 See Waiver Request at 1. 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).
25 National EBS Association Objection to Application (filed Aug. 13, 2009) (“NEBSA Objection”).
26 Petition to Deny or Dismiss of the Tennessee Board of Regents and its Member Institutions (filed Aug. 20, 2009)
(“TBR Petition to Deny”). TBR is joined in its filing by its member institutions Chattanooga State Technical
Community College (CSTCC), licensee of EBS Station WHR519 at Chattanooga, Tennessee; Roane State
Community College (RSCC); and Tennessee Technological University (TTU).
27 Clearwire Corporation Comments on Application of Performance Learning Academy for a New Educational
Broadband Service Station (filed Aug. 21, 2009) (“Clearwire Comments”).
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electronic filing requirement, deny PLA’s request for waiver of the filing freeze, and dismiss PLA’s
Application.
6.
PLA states that the proposed Geographic Service Areas (GSAs) would cover Cookeville,
Tennessee, where the Communications Academy is located, as well as portions of the following counties:
Clay, Cumberland, Fentress, Jackson, Overton, Pickett, Putnam, and White (collectively, Upper
Cumberland).28 PLA further states that the proposed GSAs include EBS A-group and B-group spectrum
that encompasses an area of complete 2.5 GHz white space and is structured in compliance with the
Second FNPRM, as well as with the Commission’s most recent EBS waiver grant,29 so as not to include
any portion of the GSAs of adjacent co-channel licensees.30 PLA describes Upper Cumberland as a
generally rural area, anchored by the micropolitan city of Cookeville, Tennessee.31 Citing online
Cookeville and United States Census Bureau sources, PLA states that approximately 15,000 Upper
Cumberland residents travel to Cookesville each day to work, attend school, receive health care, shop, or
participate in leisurely activities.32 PLA notes that in 2000, 23.2 percent of the individuals residing in
Cookeville were under the poverty line, almost double the national average of 12.4%, while median
household income for Cookeville was only $26,533, much lower than the national average of $41,994.33
PLA contends that broadband adoption in Upper Cumberland has been slow, noting that while 57% of
Tennessee residents do not have broadband service in their own home, comparatively far more residents
in Upper Cumberland lack such service: 77% of Clay County residents, for example, and 74% of Overton
County residents do not have broadband at home.34 PLA claims that an alarming percentage of residents
using dial-up services in Upper Cumberland claim that broadband service is unavailable in their area,
while others explain that broadband service is unaffordable.35 PLA notes that 31 percent of Clay County
residents using dial-up allege that broadband is unavailable, and 39% of those residents claim that the
broadband offered is too expensive.36
7.
PLA maintains that application of the filing freeze rules would not serve their underlying
purpose and would be contrary to Commission precedent and the public interest.37 PLA argues that the
Commission imposed the current filing suspension in order to adopt geographic area licensing in the 2.5
GHz spectrum band, to take steps to streamline the application process from BLS to ULS, and to
transition the spectrum from ITF to EBS.38 PLA states that, since the imposition of the filing freeze, EBS
licenses have been converted to geographic service areas and EBS licensees have fully come to employ
ULS to file applications.39 PLA contends that the only purpose left to the filing freeze is to allow

28 Id. at 2.
29 See The Board of Trustees of Northern Michigan University, Memorandum Opinion and Order, 23 FCC Rcd
11832, 11837 ¶ 14 (WTB 2008) (NMU Order).
30 Waiver Request at 2-3.
31 Id. at 3.
32 Id.
33 Id.
34 Id. at 3-4.
35 Id. at 4.
36 Id.
37 Id. at 5.
38 Id., citing NPRM and MO&O, 18 FCC Rcd at 6811-13 ¶¶ 220-226.
39 Waiver Request at 5.
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licensees to transition the spectrum.40 PLA argues that its proposed GSAs are in almost complete white
space and therefore any transition to the applied-for channel groups would be unnecessary.41 PLA
contends that the Commission has granted four waiver requests of the filing freeze, three of which
presented circumstances very similar to those faced by PLA: to Choice Communications (Choice),42 to
StratusWave Communications (StratusWave),43 and to the Board of Trustees of Northern Michigan
University (NMU).44 PLA maintains that the Commission found that the unique insular or rural location
of the license area in question created few available choices for broadband,45 and that approval of the
waiver requests would result in substantial benefits to consumers, while denial of the requests would limit
consumers’ ability to receive broadband services.46 PLA states that the Commission also noted that grant
of the waivers would not cause harm to educational entities and had the support of educators.47 PLA
argues that its circumstances are very similar to those of Choice, StratusWave, and NMU: the area
covered by PLA’s proposed GSAs is rural and in need of a competitive broadband choice, and grant of
PLA’s waiver request and application would create new or additional competitive broadband choices to
the benefit of consumers residing in Upper Cumberland.48 PLA states that, as with Choice’s,
StratusWave’s, and NMU’s applications, PLA’s application enjoys the string support of its educational
community.49 PLA notes that, like NMU, PLA is eligible to hold an EBS license.50 PLA does ask that
the Commission not restrict its ability to lease its spectrum, as the Commission required of NMU.51 PLA
argues that NMU is a state university with significant resources at its disposal, while PLA is a small
private school, and does not have the capital to build out a WiMAX system on its own.52 PLA contends
that allowing it to lease the channels would let PLA ensure that the channels are put to their highest and
best use: specifically, that PLA has the necessary internet capacity to run its on-line classes and that
PLA’s prospective students in Upper Cumberland have access to broadband at competitive prices.53
8.
PLA argues that a primary objective of Congress in adopting the Telecommunications
Act of 1996 was to promote competition and encourage the rapid deployment of new telecommunications
technologies.54 PLA states that Congress specifically tasked the Commission with encouraging timely,

40 Id.
41 Id. at 5-6.
42 Choice Communications LLC, Memorandum Opinion and Order, 20 FCC Rcd 10906 (WTB 2005) (Choice
Order
).
43 Gateway Telecom LLC d/b/a Stratus Wave Communications, Memorandum Opinion and Order, 22 FCC Rcd
15789 (2007) (StratusWave Order).
44 NMU Order, supra.
45 Waiver Request at 6, citing Choice Order, 20 FCC Rcd at 10911-12 ¶ 15; StratusWave Order, 22 FCC Rcd at
15794-95 ¶¶ 12-14; and NMU Order, 23 FCC Rcd at 11834 ¶ 6, 11836 ¶ 10.
46 Waiver Request at 6-7, citing Choice Order, 20 FCC Rcd at 10911-12 ¶ 15; StratusWave Order, 22 FCC Rcd at
15795 ¶ 14; and NMU Order, 23 FCC Rcd at 11836 ¶ 10.
47 Waiver Request at 7, citing Choice Order, 20 FCC Rcd at 10912-13 ¶ 17; StratusWave Order, 22 FCC Rcd at
15799 ¶ 22; and NMU Order, 23 FCC Rcd at 11836 ¶ 11.
48 Waiver Request at 7.
49 Id.
50 Id.
51 Id. at 7 n.24, citing NMU Order, 23 FCC Rcd at 11837 ¶ 13.
52 Waiver Request at 7 n.24.
53 Id.
54 Id. at 7, citing Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 preamble (1996).
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advanced telecommunications capability to all Americans.55 PLA notes that when the Commission
established the EBS, the agency noted that one of its goals was to encourage the provision of new
technologies and services to the public.56 PLA contends that the Commission has recognized that
wireless broadband service in the 2.5 GHz band may offer consumers another broadband alternative,
which may lead to reduced prices and more competition in the delivery of high-speed internet access.57
PLA states that, currently, no EBS license covers the entire Upper Cumberland area, leaving it in an area
of almost complete white space.58 PLA notes that, while the FCC has requested comment on how to
allocate EBS white space spectrum, the agency has not yet proposed rules on how it intends to do so.59
PLA suggests that the method and process of allocation may not be resolved for some time, leaving the
spectrum fallow for years to come and frustrating the stated goals of Congress and Commission policy,
noting that the Commission has previously found that allowing licenses to lie fallow until the
Commission reauctioned spectrum to be contrary to the public interest when the Commission granted
forty-one late-filed waiver requests by EBS licensees.60 PLA states that it intends to lease the excess
capacity on the channels to a wireless internet provider prepared to build out and provide services to the
educational community and local consumers immediately, noting that Utopian Wireless Corporation
(Utopian) has committed to leasing the requested channels in order to build a WiMAX system in the
Upper Cumberland area.61 PLA argues that this will add a much needed competitive choice to consumers
in Upper Cumberland, most areas of which are underserved by broadband options while many areas have
no access to broadband speed internet service whatsoever.62 PLA states that the Commission established
ITFS (since renamed EBS) in 1963, to be used for the transmission of instructional material to accredited
public and private schools,63 and that the Commission’s view has long been 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.64 PLA states that it seeks the instant waiver for the exact
purpose of EBS: so that PLA can advance its educational goal of reaching students in rural areas through
the transmission of on-line instructional classes.65 PLA argues that grant of its waiver request and
accompanying application will advance the Commission’s long-standing EBS policy, while denial of
PLA’s request will come at the expense of students in need of alternative instructional classes in rural
areas of Upper Cumberland.66

55 Waiver Request at 7, citing § 706(a) of the Telecommunications Act of 1996, supra.
56 Waiver Request at 7, citing BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14167-68 ¶ 2.
57 Waiver Request at 7-8, citing NMU Order, 23 FCC Rcd at 11835 ¶ 8.
58 Waiver Request at 8.
59Id., citing 2d FNPRM.
60 Waiver Request at 8 and n.31, citing In the Matter of Forty-One Late-Filed Applications for Renewal of
Educational Broadband Service Stations, Memorandum Opinion and Order, 22 FCC Rcd 879 (WTB 2007).
61 Waiver Request at 8 and n.32.
62 Id.
63 Id., citing, inter alia, NMU Order, 23 FCC Rcd at 11832 ¶ 2 and ETV Decision at 853 ¶ 25.
64 Waiver Request at 8, citing NMU Order, 23 FCC Rcd at 11836 ¶ 11 and StratusWave Order, 22 FCC Rcd at
15795-96 ¶ 15.
65 Waiver Request at 9.
66 Id.
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9.
PLA’s Application was accepted for filing on July 22, 2009.67 The National EBS
Association (“NEBSA”), the Tennessee Board of Regents (“TBR”), and Clearwire Corporation
(“Clearwire”) oppose PLA’s Application. NEBSA is a non-profit, professional organization of EBS
licensees, applicants, and others interested in EBS, whose goals are to gather and exchange information
about EBS, to act as a conduit for those seeking information or assistance about EBS, and to represent the
interests of EBS licensees and applicants.68 As a representative of the EBS community, and as a
consistent participant for decades in proceedings relating to the FCC’s regulation of the EBS service, the
adoption of its applicable rules and policies, including those for licensing of EBS “white space,” and the
development of services in the 2.5 GHz band, NEBSA states that it has a significant and legitimate
interest in the processes and rules by which new EBS stations are applied for and licensed.69 TBR states
that it oversees a system of 47 institutions with a combined annual enrollment of more than 190,000
students; that its six state universities, 13 community colleges, and 28 technology centers offer classes in
90 of Tennessee’s 95 counties; and that TBR exists to promote education to provide Tennessee with the
workforce it needs for sound economic development.70 TBR further states that its technology centers
focus exclusively on workforce development, which is also a major emphasis in community colleges.71
TBR notes that TBR institutions hold six EBS licenses at five institutions across Tennessee, and that TBR
is currently cooperating with Governor Bredeson’s task force to expand broadband coverage across the
state, part of which plan will have TBR lease its excess capacity to commercial broadband providers that
have committed to build out, thus increasing broadband coverage across the state.72 TBR states that it has
three constituent institutions (CSTCC, RSCC, and TTU) with a need and an interest in using EBS
spectrum to further their educational mission, and argues that the area covered by PLA’s proposed GSA
could be a strategic part of the task force’s comprehensive plan, but only if the spectrum is not unfairly
awarded to private interests such as PLA.73 CSTCC, which has used its licenses to help promote TBR’s
educational goals, holds multiple EBS licenses, including the B-group license at Chattanooga that is co-
channel with some of the channels sought by PLA.74 In addition, PLA’s proposed GSA would share a
border with CSTCC’s GSA.75 Clearwire states that it has standing in this proceeding as the proponent for
BTA 096 and as a licensee and lessee of both BRS and EBS spectrum in the market.76
10.
NEBSA, TBR, and Clearwire make a series of arguments in opposition to PLA’s
application. NEBSA (and Clearwire, which joins in NEBSA’s objection)77 believes that PLA is
attempting to “jump the gun” by seeking a license ahead of others who might be interested in applying for
EBS spectrum in the area.78 While NEBSA is sympathetic to PLA’s desire to serve its students, it argues

67 See Wireless Telecommunications Market-Based Applications Accepted for Filing, Report No. 5114, Public
Notice
(rel. Jul. 22, 2009) at 5.
68 Objection to Application, The National EBS Association (filed Aug. 13, 2009) (“NEBSA Objection”) at 1.
69 Id. at 1-2.
70 Petition to Deny or Dismiss of The Tennessee Board of Regents and its Member Institutions (filed Aug. 20, 2009)
(“TBR Petition to Deny”) at 2.
71 Id.
72 Id.
73 Id.
74 Id.
75 Id.
76 Comments on Application of Performance Learning Academy for New Educational Broadband Service Station,
Clearwire Corporation (filed Aug. 21, 2009) (“Clearwire Comments”) at 1.
77 Id.
78 NEBSA Objection at 2.
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that PLA should have to wait for the Commission to develop rules for licensing EBS white space.79 TBR
argues that the freeze helps ensure the orderly licensing of EBS white space spectrum and that PLA’s
Application would disrupt that process.80 TBR notes that certain commenters in the EBS white spaces
proceeding have proposed allowing existing licensees to expand their GSAs, and grant of PLA’s
Application would preclude CSTCC from expanding its GSA into PLA’s proposed area of operation.81
TBR and Clearwire express concern that grant of channels to PLA pursuant to the pre-transition band plan
could disrupt the ongoing transition to the new band plan in the Cookeville, Tennessee Basic Trading
Area because PLA’s pre-transition channels would overlap with various post-transition channels licensed
to other licensees.82 TBR also argues that there is nothing unique or unusual about PLA’s Application
that would justify a waiver of the filing freeze.83 In particular, it argues that PLA has not shown why it
cannot wait for the Commission to develop a regular means of licensing unassigned EBS spectrum, as
proposed in the 2nd FNPRM.84 TBR notes that while the letters in support of PLA’s Application are dated
as of October 2008, the Application was not filed until June 2009.85
11.
NEBSA, TBR, and Clearwire all believe that PLA’s application is inconsistent with the
Commission decisions that have waived the current filing freeze on new EBS applications. With respect
to the Choice Order, NEBSA contends that the waiver was granted in the very narrow context of a
commercial party in the U.S. Virgin Islands filing for vacant EBS A-group channels under the remnants
of the wireless cable exception of former Section 27.1201(c) of the Rules.86 NEBSA states that this
exemption was still available at the time of Choice’s application,87 and, in addition, a series of unique
factors were found to be applicable in that case.88 TBR states that the Choice Order relied upon the
unique insular location of the U.S. Virgin Islands and the demonstrated shortage of media outlets, and
found that there would appear to be a relatively small number of local educational institutions that would
be interested in filing for EBS spectrum in the Virgin Islands, nor would waiver negatively impact the
rights of any licensees in adjacent markets.89 TBR notes that in contrast, PLA does not seek additional

79 Id.
80 TBR Petition at 5.
81 Id.
82 Id. at 4-5, Clearwire Comments at 3-4.
83 TBR Petition at 6-7.
84 Id. at 7.
85 Id.
86 NEBSA Objection at 3, citing 47 C.F.R. § 27.1201(c) (2005).
87 The wireless cable exception was eliminated for post-transition areas by the BRS/EBS R&O and FNPRM, 19 FCC
Rcd at 14293 ¶ 349. The exception was eliminated for even pre-transition areas in 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, Order on Reconsideration
and Fifth Memorandum Opinion and Order and Third Memorandum Opinion and Order and Second Report and
Order
, WT Docket No. 03-66, 21 FCC Rcd 5606, 5755 ¶ 364 (2006).
88 NEBSA Objection at 3. NEBSA notes that when Choice tried to expand its operations in 2008 to use the C- and
D-group channels as well, over the objections of NEBSA and the Catholic Television Network (CTN), Choice
agreed, in a settlement with NEBSA and CTN, to conditions that protected the integrity of the EBS licensing
process, including: (a) receiving only special temporary authorization for six months, with no more than one six-
month renewal term, after which use of the channels by Choice would cease; the authorization would not be
permitted to delay, compromise, or otherwise prejudice the outcome of the licensing of EBS white space; and the
authorization would not provide Choice any rights or interest in the ultimate EBS authorization issued for the
channels. NEBSA Objection at 4.
89 TBR Petition to Deny at 8, citing Choice Order, 20 FCC Rcd at 10911-12 ¶ 15.
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channels for a video distribution system but rather seeks channels for a broadband service that will be
immediately leased to Utopian.90 TBR further notes that while Choice secured the support of local
educators that could have claimed prejudice from grant of the waiver request, PLA clearly has not.91
With respect to the StratusWave Order, NEBSA and TBR argue that the licenses ultimately granted by
the Commission were also subject to conditions that blunted any potential impact on the future
availability of EBS white space licenses on these channels in the area, including limiting the licenses to a
single ten-year term with no chance of renewal, and requiring that StratusWave reduce or terminate its
service on the channels even prior to expiration of the licenses if and when an EBS licensee commenced
service on the spectrum, even as a result of a later-granted license.92 With respect to the NMU Order,
NEBSA states that this decision involved only four middle band segment channels, was based on NMU’s
commitment to use the spectrum only for educational purposes, and was conditioned on NMU not leasing
any of the spectrum associated with its license to another entity.93 NEBSA argues that PLA has not
agreed to any of the foregoing special licensing conditions, and seeks full-fledged EBS licenses for two
whole channel groups (including lower band segment channels) with no restrictions on assignment, no
limitations on license terms, no limitations on leasing, and no requirement to terminate service if and
when EBS white space is ultimately licensed through normal processes to some other entity in the area.94
NEBSA further contends that PLA comes to the table late: more than four years after Choice, nearly four
years after StratusWave, nearly two years after NMU, and at a time when an EBS white space licensing
decision is anticipated soon.95 TBR notes that NMU pledged to use the spectrum only for educational
purposes, and not to lease the spectrum to another entity,96 while PLA makes no commitment to benefit
education, nor promises to restrict leasing of its excess capacity.97 TBR further notes that all three waiver
applications were unopposed, and the requests were filed before the Commission signaled its intent to
assign white space spectrum by issuing the Second FNPRM.98 Clearwire argues that PLA’s Application
does not propose the conditions imposed on StratusWave and NMU.99
12.
In response to the objections, PLA amended its Application to accept as a voluntary
condition a requirement that PLA immediately file a self transition notification for the channels requested,
as well as a waiver request for late filing within ten days after grant.100 PLA states that it also agrees to
abide by all remaining self transition requirements within the time requirements set forth by the
Commission.101

90 TBR Petition to Deny at 8.
91 Id. at 8-9.
92 NEBSA Objection at 4, citing StratusWave Order, 22 FCC Rcd at 15796 ¶ 16; TBR Petition to Deny at 9, citing
StratusWave Order
, 22 FCC Rcd at 15799 ¶ 23, 15800 ¶ 27.
93 NEBSA Objection at 5, citing NMU Order, 23 FCC Rcd at 11837 ¶ 13.
94 NEBSA Objection at 5.
95 Id.
96 TBR Petition at 9, citing NMU Order, 23 FCC Rcd at 11834-35 ¶ 7, 11836 ¶ 11.
97 TBR Petition to Deny at 9.
98 Id.
99 Clearwire Comments at 2-5.
100 Performance Learning Cooperative d/b/a Performance Learning Academy, Amendment to Application (filed
Sept. 29, 2009) (PLA Amendment).
101 PLA Amendment.
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III.

DISCUSSION

13.
PLA seeks waiver of: (a) Section 1.913(b) of the Commission’s rules to permit manual
filing of its application;102 and (b) the filing freeze that was imposed by the Commission on new EBS
applications in the Commission’s April 2003 NPRM and MO&O.103 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.104
14.
With respect to the electronic filing requirement contained in Section 1.1913(b) of the
Commission’s Rules,105 we observe that the Commission’s electronic Universal Licensing System (ULS)
is not currently configured to accept applications such as the one submitted by PLA. 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 PLA a waiver to permit manual filing of
its Application.
15.
We conclude, however, that PLA has not justified a waiver of the filing freeze on new
EBS applications. Initially, we note that while PLA asserts that the only purpose remaining to the filing
freeze is to allow licensees to transition the spectrum, we agree with TBR that the freeze continues to
serve the purpose of effectuating an orderly licensing of EBS white space spectrum.106 In this case, PLA
has failed to demonstrate that a waiver is necessary to obtain the claimed public interest benefits. First,
while PLA has described an online classroom and wireless broadband system, neither it nor Utopian have
made any commitment as to when their systems would be constructed and operating. Accordingly, they
have failed to show that they cannot wait for the Commission to develop a new mechanism for licensing
EBS white space and apply for spectrum pursuant to that new mechanism. Second, Utopian and PLA had
an alternative means of acquiring spectrum. Specifically, the BRS Basic Trading Area license for the
Cookeville, Tennessee BTA has been auctioned.107 While Utopian was an eligible bidder in that auction,
and obtained several other licenses in that auction, it was not the winning bidder for the Cookeville, TN
BTA.108 Obtaining that license would have been another means by which Utopian could have obtained
the spectrum for its contemplated wireless broadband system while also allowing PLA to proceed with its
online classroom. In contrast, in the cases where waivers of the EBS filing freeze have been granted, the
applicants had no other means of acquiring spectrum.109 While we could see waiving the freeze if an

102 See Waiver Requests at 1 and 47 C.F.R. § 1.913(b).
103 See Waiver Request at 1. See also NPRM and MO&O, 18 FCC Rcd at 6811 ¶ 226, 6825 ¶ 260.
104 47 C.F.R. § 1.925(b)(3).
105 See 47 C.F.R. § 1.913(b).
106 See TBR Petition to Deny at 5.
107 See Auction of Broadband Radio Service Licenses Closes Winning Bidders Announced for Auction 86, Public
Notice
, 24 FCC Rcd 13572 (WTB 2009).
108 Id
109 See Choice MO&O, 20 FCC Rcd at 10909 ¶ 9 (Choice was currently using all licensed BRS and EBS spectrum
in connection with its system, and there was no other licensed BRS or EBS spectrum in the Virgin Islands);
StratusWave MO&O, 22 FCC Rcd at 15794-15795 ¶ 12 (No other BRS or EBS spectrum licensed within
StratusWave’s GSA); NMU MO&O, 23 FCC Rcd at 11836 ¶ 10 (No active EBS licensees within NMU’s proposed
GSA).
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DA 13-2144
immediate need for spectrum was demonstrated that outweighed the disruption that would result from
waiving the freeze, PLA has failed to show that granting a waiver would meet such an immediate need.
16.
We are also concerned that granting a waiver would not be consistent with the underlying
educational purposes of EBS. In the cases of StratusWave and Northern Michigan University, special
conditions were imposed to preserve the educational purposes of EBS. In the case of StratusWave, the
licenses were limited to a single ten-year term with no chance of renewal, StratusWave was required to
demonstrate substantial service by the end of 2009, and StratusWave was required reduce or terminate its
service on the channels even prior to expiration of the licenses if and when an EBS licensee commenced
service on the spectrum, even as a result of a later-granted license.110 Northern Michigan University
agreed to a condition under which it would not lease its spectrum.111 PLA has not agreed to any such
conditions, and indeed has stated its desire to lease its spectrum to Utopian because it is unable to build a
system without assistance from a commercial operator.112 We conclude that without such safeguards, a
waiver would not be consistent with the underlying educational purposes of EBS. We therefore conclude
that a waiver is not in the public interest.
17.
PLA has also failed to justify a waiver under the second prong of the waiver standard
because it has not shown that its situation is unique or unusual. We agree with PLA that the residents of
Upper Cumberland could benefit from Utopian’s proposed wireless broadband system and PLA’s
proposed online classroom, but that is equally true for the many other similarly situated communities
whose needs the Commission is addressing in WT Docket No. 03-66. We note with concern the residents
and businesses that do not have access to broadband. In this case, however, we believe that the best way
to meet that concern is for the Commission to adopt and implement an orderly licensing process that takes
the needs of all potential applicants and their users into account, and provides all of them with a fair and
equal opportunity to obtain the spectrum that they seek. Furthermore, as noted above, Utopian had the
alternative of acquiring spectrum in the BRS auction.
18.
PLA’s situation is readily distinguishable from those cases where waivers of the EBS
freeze have been granted. Choice involved a BRS licensee who had the exclusive right to apply for
commercial EBS channels pursuant to the former “wireless cable” exception to the EBS eligibility rule.113
The Bureau also relied upon the unique insular location of the U.S. Virgin Islands, which ensured that
grant of a waiver would not negatively impact the rights of any licensees in adjacent markets or impact
any spectrum transitions in neighboring markets.114 We further note that, in contrast to PLA, Choice
secured the support of local educators that could have claimed prejudice from grant of the waiver
request.115 Similarly, with respect to StratusWave, we found that there was no current licensee that would
be negatively impacted by grant of a waiver.116 NMU pledged to use the spectrum obtained as a result of
waiver only for educational purposes, and not to lease it to another entity.117 StratusWave’s waiver was
conditioned in ways to preserve the primary educational purpose of the channels.118 We note, too, that

110 StratusWave MO&O, 22 FCC Rcd at 15796 ¶ 16.
111 NMU MO&O,
112 Waiver Request at 7 n.27.
113 See Choice Order, 20 FCC Rcd at 10910 ¶ 12.
114 Choice Order, 20 FCC Rcd at 10912 n.70.
115 Id. at 10913 ¶ 17.
116 StratusWave Order, 22 FCC Rcd at 15795 ¶ 13.
117 NMU Order, 23 FCC Rcd at 11834-35 ¶ 7, 11836 ¶ 11.
118 StratusWave Order, 22 FCC Rcd at 15799 ¶ 23, 15800 ¶ 27.
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DA 13-2144
each of the three waiver requests granted was unopposed, and, as TBR and NEBSA note,119 were filed
prior to the issuance of the Second FNPRM, in which the Commission has indicated its intent to assign
white space spectrum. In the present case, grant of PLA’s waiver request would clearly negatively impact
neighboring licensees, PLA has clearly not secured the support of local educators, and PLA proposes
immediately to lease its excess capacity.
19.
In sum, PLA has not provided a convincing explanation of why it immediately needs
access to EBS spectrum for the provision of educational content. PLA does not provide an adequate
justification for the preclusive effect that its proposal would have on other likely applicants, including the
licensees of several EBS stations in its immediate vicinity. PLA has not shown that the underlying
purpose of the Commission’s rules would be frustrated if it complies with them, nor has it shown that
applying those rules in this situation would be inequitable, unduly burdensome or contrary to the public
interest.120 We therefore deny PLA’s request for waiver of the EBS filing freeze and dismiss the
Application without prejudice to PLA refiling once the Commission has established a means of licensing
EBS white space.

IV.

CONCLUSION AND ORDERING CLAUSES

20.
For the reasons discussed above, we grant PLA’s request for waiver of the electronic
filing requirement of Section 1.913(b) of the Commission’s Rules, but we deny its request for a waiver of
the filing freeze that was imposed by the Commission on new EBS applications in the Commission’s
April 2003 NPRM and MO&O. We therefore direct dismissal of its Application.
21.
Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of
1934, as amended, 47 U.S.C. § 154(i), and Sections 1.913(b) and 1.925(b)(3) of the Commission’s Rules,
47 C.F.R. §§ 1.913(b), 1.925(b)(3), that the Waiver Request filed by Performance Learning Cooperative
d/b/a Performance Learning Academy on June 18, 2009 in connection with File No. 0003879047 IS
GRANTED with respect to the request for waiver of Section 1.913(b) of the Commission’s Rules and in all
other respects IS DENIED.
22.
IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of
1934, as amended, 47 U.S.C. § 154(i), and Section 1.934(d)(2) of the Commission’s Rules, 47 C.F.R.
§ 1.934(d)(2), that the licensing staff of the Broadband Division SHALL DISMISS the application filed
by Performance Learning Cooperative d/b/a Performance Learning Academy for a new Educational
Broadband Service Station on March 27, 2009 (File No. 0003789021).
23.
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

119 TBR Petition to Deny at 9, NEBSA Objection at 5.
120 See 47 C.F.R. § 1.925(b)(3).
12

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