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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) WINSTAR WIRELESS FIBER CORP. ) ) Request for Waiver of Sections ) 101.65(a)(3) and 101.305(d) ) of the Commission's Rules ) ) ORDER Adopted: January 5, 1999 Released: January 5, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. This Order addresses a Request for Waiver filed on November 2, 1998, by WinStar Wireless Fiber Corp. ("WinStar"). WinStar seeks a waiver of Section 101.65(a)(3) of the Commission's rules, which provides that a non-common carrier station which discontinues service for more than 30 days is automatically forfeited. In addition, WinStar seeks a waiver, pursuant to Section 101.305(d) of the Commission's Rules, which requires a common carrier licensee, if removal of equipment or facilities has rendered a station not operational, to request a waiver of automatic forfeiture and to demonstrate that the frequency will be used within six months. For the reasons stated below, we grant WinStar's Request for Waiver. II. BACKGROUND 2. On August 25, 1998, CellularVision of New York, L.P. ("CellularVision") and WinStar filed an application seeking Federal Communications Commission consent to the disaggregation of 850 MHz of CellularVision's New York Primary Metropolitan Statistical Area ("NYPMSA") Local Multipoint Distribution Service ("LMDS") license to WinStar. On October 9, 1998, the Disaggregation Application was granted. On November 2, 1998, WinStar submitted the above-referenced Waiver Request. WinStar states that the settlement date for the assignment transaction was scheduled for the end of November, and that CellularVision agreed to remove its radio equipment prior to the settlement date. WinStar further indicates that there will be a delay of up to three months after consummation of the assignment before its new equipment can be delivered and installed. III. DISCUSSION 3. Section 101.23 provides that a waiver of the Commission's rules will not be permitted except upon an affirmative showing that either: (a) the underlying purpose of the rule will not be served in a particular situation and that granting the waiver request is in the public interest; or (b) that the "unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest." Applicants requesting a rule waiver must also demonstrate lack of a reasonable alternative. Furthermore, an applicant seeking waiver of a Commission rule "must plead with particularity the facts and circumstances which warrant such action." 4. Waiver of Section 101.65(a)(3). Section 101.65(a)(3) provides that a license will be automatically forfeited upon "the voluntary removal or alteration of the [station's] facilities, so as to render the station not operational for a period of 30 days or more." WinStar argues that good cause is shown for a waiver for the period of discontinuance of service by CellularVision prior to the transaction settlement date because it would not be "prudent" for WinStar to install the new equipment prior to closing. In this connection, WinStar expresses concern that a pre-settlement installation might cause additional expenditures in the form of dismantling and removing its equipment "should the transaction fall through for reasons outside of WinStar's control." Rather than address the merits of WinStar's concerns of financial risk, we find that the underlying purpose of the rule would not be served in this situation and that granting WinStar's Waiver is in the public interest. The underlying purpose of Section 101.65(a)(3) is to ensure station operation and alleviate "concerns about the warehousing of spectrum." We conclude that the brief delay in service from the time that CellularVision discontinues service on its facilities to the settlement date of the disaggregation transaction would not promote or facilitate spectrum warehousing, particularly in light of WinStar's representation of its intent to continue operations in the 850 MHz of spectrum it acquired from CellularVision. We note that WinStar has already ordered the necessary 28 GHz equipment and plans to complete installation as soon as possible. Moreover, because the type of service being offered on the spectrum is changing from non-common carrier video distribution service to common carrier services, we find no public benefit in requiring service to continue on CellularVision's license up until the date of settlement. The Commission has previously found that the market should dictate which services are offered in LMDS, and the ability of licensees to make the transition between one type of service to another is in keeping with the Commission's stated goals. We also note that WinStar has assumed responsibility for any future buildout on this spectrum. Accordingly, we find that a waiver of Section 101.65(a)(3) is justified, pursuant to Section 101.23(a), because the underlying purpose of this rule would not be served by strict compliance with the rule and grant of the requested waiver would allow the license to continue in effect and facilitate WinStar's expeditious use of the subject frequencies to provide service to the public. 5. Waiver pursuant to Section 101.305(d). Because WinStar's operations will be common carrier in nature, WinStar is subject to Section 101.305(d) of the Commission's rules which requires licensees who have discontinued service either to submit the license for cancellation, to file an application for modification of the license, or to request a waiver of the rule with a demonstration that service will resume within six months. We find that WinStar has fulfilled the requirements of Section 101.305(d)(3) by filing its instant waiver request. The common carrier service "discontinuance" at issue here arises because CellularVision had previously constructed a non-common carrier LMDS system for multipoint video distribution, but WinStar has acquired the spectrum to provide common carrier services. WinStar states it intends to integrate this assigned spectrum into its existing network, which provides interLATA and intraLATA services at 38 GHz. As a result, in the period of time between consummation and installation of its new equipment, WinStar, in effect, will be in violation of Section 101.305(d) because it will have no equipment installed for thirty days or more following consummation. For reasons similar to those leading to our conclusion that waiver of Section 101.65(a)(3) is warranted under the circumstances described herein, we conclude that granting waiver of Section 101.305(d) will advance the public interest. The ability of licensees to make the transition from one type of service to another is in keeping with the Commission's goals, and we find that WinStar's proposed common carrier service will facilitate an expansion of telecommunications options, thereby providing the New York Metropolitan Area with increased competition and additional service options. Accordingly, we find that a waiver of Section 101.305(d)(3) is justified, pursuant to Section 101.23(a), because the underlying purpose of this rule would not be served by strict compliance with the rule and grant of the requested waiver would allow the license to continue in effect until WinStar's initiation of service on the subject 850 MHz of LMDS Spectrum. In granting this waiver request, we rely on WinStar's statement that it will be in operation within 3 months of consummation. IV. ORDERING PARAGRAPH 6. Accordingly, IT IS ORDERED that pursuant to Section 101.23 of the Commission's Rules, 47 C.F.R.  101.23, WinStar's Request for Waiver of the provisions in Section 101.65(a)(3) of the Commission's Rules governing the removal or alteration of equipment and facilities is GRANTED. IT IS FURTHER ORDERED that WinStar's Request for Waiver pursuant to Section 101.305(d)(3) is GRANTED. IT IS FURTHER ORDERED that WinStar is to notify the Public Safety and Private Wireless Division, in writing, within 30 days after its commencement of operations on 27.5-28.35 GHz. 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 and 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau