Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) OPTEL, INC. ) ) Petition For Waiver of Section 101.603 ) of the Commission's Rules ) ORDER Adopted: March 9, 1999 Released: March 10, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. Before us is a Petition for Waiver filed by OpTel, Inc. (OpTel)1 on April 23, 1997, seeking a waiver of Section 101.603 of the Commission's Rules to permit OpTel to use frequencies in the 10.7-11.7 GHz band (the "11 GHz frequencies") for fixed point-to-point microwave transmission of video entertainment material on a private carriage basis.2 Section 101.603 prohibits private operational fixed microwave licensees from transmitting video entertainment material in the 11 GHz frequencies.3 Based on the record in this proceeding, we conclude that OpTel's Waiver Request should be denied. II. BACKGROUND 2. OpTel is an operator of private cable satellite master antenna television (SMATV) systems and a provider of telephone service to multiple dwelling units (MDUs) on a shared tenant service basis.4 OpTel states that its projected use will encompass approximately twenty to forty 11 GHz microwave licenses in five to ten major U.S. cities to provide hub-to-hub links between its private cable systems. OpTel is permitted to operate its video service without Title VI franchise authority5 because the systems do not use hard-wired crossings of public rights-of-ways.6 Other systems authorized by the Commission also are allowed to provide video services (e.g. Direct Broadcast Satellite Service, Multichannel Multipoint Distribution Service, SMATV and Local Multipoint Distribution Service) and are not required to pay local franchise fees or to comply with various aspects of Title VI of the Communications Act.7 Therefore, OpTel's use of radio frequency links is a significant factor in the determination of its regulatory status. 3. On February 29, 1996, the Commission consolidated the fixed microwave service rules in a new Part 101.8 One of the rules adopted in the Part 101 Order is Section 101.147(a), which lists the frequencies available for assignment to fixed point-to-point microwave stations, including the 11 GHz frequencies.9 The former rule sections listed the allowable usage of 11 GHz frequencies for private fixed microwave service with a footnote prohibiting the transmission of video entertainment material by private operational fixed microwave licensees using the band.10 Although the frequency table in the new Section 101.147(a) no longer contains the footnote that carried the restriction, the text of Section 101.603 retains the prior restriction by limiting the frequencies on which a private carrier may transmit video entertainment material.11 4. On March 29, 1996, OpTel submitted a letter to the Chief of the Wireless Telecommunications Bureau (Bureau) requesting either clarification that the change in the frequency table was deliberate or, in the alternative, that the Bureau eliminate the limitation on carriage of video entertainment material.12 In addition, several parties sought reconsideration of the Part 101 Order, in which they also raise the issue of whether to permit the carriage of video programming material by private operational fixed microwave licensees in this frequency band under Section 101.603.13 Although this matter is still pending before the Commission, OpTel states that it is preparing to move into the local exchange market on a private carriage basis and wishes to begin using the 11 GHz frequencies for transmission of video entertainment material.14 Therefore, OpTel seeks a waiver of the Section 101.603 limitation on carriage of video programming material. III. DISCUSSION 5. Pursuant to Section 101.23 of the Commission's Rules,15 a request for waiver of Part 101 of the rules is warranted if: (a) the underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) 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 must also show the lack of a reasonable alternative.16 As discussed in further detail below, we find that OpTel has failed to meet the requirements of Section 101.23; and, thus, its Waiver Request is denied. 6. Underlying Purpose of the Rule. OpTel argues that grant of the waiver requested would be consistent with the underlying purposes of the rule revisions made in the Part 101 Order, which were to eliminate unnecessary and outdated rules and reduce regulatory burdens.17 OpTel maintains that the frequency table presently set forth in Section 101.147(a) of the Commission's Rules18 advances these purposes because it eliminates the distinction between private carrier and common carrier use of the 11 GHz frequencies for the transmission of video entertainment material.19 We note, however, that while such distinction was not continued in the particular rule referenced by OpTel, it was retained in other portions of the Part 101 rules, including the prohibition against transmission of video programming material by private operational fixed licensees such as OpTel.20 Specifically, Section 101.603 provides, in relevant part, that stations licensed in this radio service shall not be used to provide the final RF link in the chain of transmission of program material except in the frequency bands 6425-6525 MHz, 18.142-18.580 MHz, and on frequencies above 21,200 MHz.21 Thus, the relevant benchmark for the substance of OpTel's waiver request is the underlying purpose of Section 101.603 (and its predecessor rule part(s)) and not that of the Part 101 Order. 7. OpTel argues that the restriction in the text of Section 101.603 of the Commission's Rules is an outdated rule that serves no present purpose.22 OpTel reasons that under the Part 101 rules, private authorizations may be readily converted into common carrier or hybrid private/common carrier microwave authorizations, and, therefore, the rule is little more than a formality.23 We disagree with OpTel's reasoning. We find that the underlying purpose of the rule - to minimize the amount of 11 GHz spectrum occupied by non-common carrier licensees - would be served and would not be frustrated if applied to OpTel.24 Application of the rule in this case would prevent OpTel from occupying 11 GHz spectrum to provide the transmission of video entertainment - the exact purpose for imposing the restriction in the first place.25 Furthermore, in 1992, the Commission adopted rules to redevelop spectrum in the 2 GHz band for future communications services employing emerging technologies.26 A necessary part of that process was the relocation of incumbent 2 GHz point-to-point microwave licensees to other suitable spectrum, including the 11 GHz band.27 The Commission undertook this reallocation to "ensure that fixed microwave licensees relocating from [the 2 GHz band] will have available alternative frequency bands that are suitable for providing equivalent service with comparable reliability."28 We believe that grant of OpTel's waiver request would significantly undercut the Commission's expressed goals in accommodating displaced 2 GHz incumbent licensees, and result in less efficient spectrum management. 8. OpTel also contends that grant of its Waiver Request would further harmonize the private and common carrier microwave rules and thereby help to realize the purposes underlying the Part 101 Order.29 We find that any clarification of the rule changes adopted in the Part 101 Order should be appropriately resolved in the rule making proceeding rather than a waiver request. Therefore, we defer discussion of this contention to the Commission's resolution of the petitions for reconsideration of the Part 101 Order. 9. Unique Facts and Circumstances. OpTel further states that grant of its Waiver Request would serve the public interest by promoting more efficient use of the microwave spectrum.30 OpTel states that as its systems expand and it begins to provide off-site switched telephone services, it intends to use microwave equipment to backhaul telephone traffic from the system MDUs to central inter-connection points.31 When OpTel does this, it will be providing common carrier service. OpTel indicates that it intends to use 11 GHz frequencies for its telephone traffic due to the technical limitations of the 18 GHz microwave band. Absent a waiver of Section 101.603, Optel argues, it would operate parallel microwave facilities - 11 GHz for telephone traffic and 18 GHz for private video traffic.32 According to OpTel, it would be most efficient for it to use a single set of facilities operating in the 11 GHz band to provide both the video and telephone components of its integrated service package.33 10. In summary, OpTel claims that grant of the instant Waiver Request would help to avoid duplication of facilities, optimize use of microwave frequencies and conserve spectrum.34 OpTel further claims that grant of the Waiver Request would allow it to begin to order microwave equipment and to coordinate 11 GHz paths while it is awaiting a reconsideration decision on the Part 101 Order, and in turn, allow OpTel to meet its customers' needs in the rapidly changing telecommunications marketplace.35 11. We find that OpTel has not demonstrated unique circumstances in this case. The fact that OpTel may have to construct separate 18 GHz facilities to transmit the video portion of its operations is not a circumstance unique to OpTel. Given that OpTel's stated basis for requested relief would be equally applicable to other private cable SMATV entities, we believe that such relief should be obtained pursuant to a rule rather than a waiver.36 Further, we believe that any action to the contrary would undermine the restriction and generally allow interested parties to accomplish, by operation of a waiver, what is expressly prohibited under the Commission's Rules. 12. Reasonable Alternatives. In addition, we find that OpTel has not demonstrated that there are no reasonable alternatives to the 11 GHz frequencies for the delivery of the video segment of its service. OpTel maintains that the use of hard-wired facilities could change its status from a "private cable" system or "wireless cable system" to a cable franchise and subject it to Title VI franchise authority.37 OpTel also states that this would subject it to local franchise fees and local interests in maintaining streets and thoroughfares.38 It could loose its exempt status for its entire system which OpTel believes would be unduly burdensome. OpTel also contends that it would be difficult to obtain the additional antenna sites in major cities required to accommodate multiple 18 GHz links instead of one 11 GHz link, and that this would require extra equipment and locations. Finally, OpTel states that it is impractical for it to provide its video distribution services on a common carrier basis even though it intends to provide telephone services on a common carrier basis using the same facilities, because its underlying video business could be put at risk if OpTel were required to carry the video programming of its competitors. OpTel is essentially arguing that it would be more expensive for it to construct separate facilities to transmit the video portion of its service. Although OpTel may be required to expend additional funds to meet the requirements of the Commission's Rules, we find that the benefits of making the 11 GHz band available to displaced 2 GHz incumbents more than offset any potential economic detriment to OpTel. We also disagree with OpTel that alternatives, such as using hard-wired facilities or providing its video distribution services on a common carrier basis, are not reasonable. OpTel's reasons for not pursuing such alternatives, namely that it then would be subject to additional regulation or competition, do not demonstrate that these alternatives are unreasonable, but rather undesirable. We do not believe that such an extraordinary waiver under these circumstances is warranted. In this connection, we are particularly concerned about the potentially significant adverse impact that such action could have on the successful, effective and efficient relocation of displaced 2 GHz incumbent licensees. Permitting OpTel's proposed use of 11 GHz spectrum would substantially diminish the utility of the 11 GHz frequencies as replacement spectrum for displaced 2 GHz licensees. This result would seriously undercut rules that were carefully crafted to strike a balance between providing spectrum for emerging technologies while preserving spectrum for the essential services offered by displaced 2 GHz licensees. Accordingly, we deny OpTel's request for waiver. IV. CONCLUSION 13. We find that OpTel has failed to demonstrate that grant of a waiver of Section 101.603 of the Commission's Rules is warranted. OpTel's Waiver Request did not include a sufficient showing under Section 101.23 of the Commission's Rules. Therefore, we deny OpTel's request for waiver. V. ORDERING CLAUSES 14. Pursuant to authority contained in Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. ??154(i) and 303(r) and Section 101.23 of the Commission's Rules, 47 C.F.R. ? 101.23, accordingly, IT IS ORDERED that the Petition for Waiver filed by OpTel IS DENIED. 15. This action is taken pursuant to the authority delegated by Section 0.331 of the Commission's Rules, 47 C.F.R. ? 0.331. FEDERAL COMMUNICATIONS COMMISSION Kathleen O'Brien Ham Deputy Chief, Wireless Telecommunications Bureau 1 OpTel states in its request that it has pending applications to assign all of the private operational fixed microwave authorizations held by itself and its various subsidiaries to a single entity, Transmission Holdings, Inc. ("THI"). OpTel Waiver Request at n.1. OpTel requests that any relief granted by the Wireless Telecommunications Bureau in response to this Waiver Request extend to THI as well, once the assignment to THI is completed. Id. Special Temporary Authorizations (STAs) were granted by the Commission on April 23, June 12, and October 10, 1997, to temporarily assign these licenses. The STAs were extended once and the applications are now granted. 2 OpTel, Inc. Petition for Waiver of Section 101.603 of the Commission's Rules (filed April 23, 1997) ("Waiver Request"). OpTel submitted a supplemental showing in support of this Waiver Request. See Optel Supplement filed June 6, 1997 ("Supplemental Showing"). OpTel also submitted another supplemental showing on October 27, 1998. See Optel Supplement filed October 27, 1998. 3 47 C.F.R. ? 101.603. 4 SMATV is a satellite master antenna television system which is a private cable system that does not use public rights-of-ways and is an exception to the definition of a cable system under Section 602(7)(B) of the Communications Act. See 47 U.S.C. 522(7)(B). See also ?? 76.5 and 76.501(d) and (e) of the Commission's Rules, 47 C.F.R. ?? 76.5 and 76.501(d) and (e). The term MDU refers to a commonly owned multiple dwelling unit and is used as a term of art in the real estate industry to refer to apartment buildings, condominiums, hotels, or groups of building in close proximity to each other such as universities or resort facilities. 5 Title VI of the Communications Act of 1934, as amended, 47 U.S.C. ? 521, allows governmental entities empowered by Federal, State, or local law to grant franchise authority to cable television systems for the distribution of multichannel video programming to subscribers or customers. 6 Section 602(7)(B) of the Communications Act defines a cable system as a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include a facility that serves subscribers without using any public right-of-way. See 47 U.S.C. ? 522(7)(B). 7 See Section 602(7) of the Communications Act. 47 U.S.C. ? 522(7). 8 See Reorganization and Revision of Parts 1, 2, 21, and 94 of the Commission's Rules to Establish a New Part 101 Governing Terrestrial Microwave Fixed Radio Services, WT Docket No. 94-148, CC Docket No. 93-2, and RM-7861, Report and Order, 11 FCC Rcd 13449 (1996) ("Part 101 Order"). 9 See 47 C.F.R. ? 101.147(a). 10 See 47 C.F.R. ? 94.61(b) & n. 21 (1994). 11 See 47 C.F.R. ?101.603. 12 Letter from Henry Goldberg, Esq., Goldberg, Godles, Wiener & Wright, to Michele Farquhar, Chief, Wireless Telecommunications Bureau, Federal Communications Commission (March 29, 1996). This letter is being treated as a request for clarification in the rulemaking proceeding. 13 See Petition for Partial Reconsideration, CAI Wireless Systems, Inc. (CAI) (filed June 27, 1996); Comments on Petitions for Reconsideration, Alcatel Network Systems, Inc. (filed August 8, 1996); and Reply to Opposition to Petition for Partial Reconsideration, CAI (filed August 21, 1996). An Opposition to Petition for Partial Reconsideration was filed by the Association of American Railroads on August 8, 1996. 14 Waiver Request at 2. 15 See 47 C.F.R. ?101.23. 16 See 47 C.F.R. ?101.23(b). 17 Waiver Request at 3. 18 47 C.F.R. ? 101.147(a). 19 Waiver Request at 3. 20 47 C.F.R. ?101.603. 21 See 47 C.F.R. ? 101.603(b)(3). 22 Waiver Request at 3. 23 Id. 24 See Amendment of Parts 2, 21, 74 and 91 of the Commissions's Rules and Regulations Relative to the Licensing of Microwave Radio Stations Used to Relay Television Signals to Community Antenna Television Systems, Docket No 15586, First Report and Order and Further Notice of Proposed Rule Making, 6 Rad. Reg. 2d (P&F) 1549, 1555 (1965). 25 Id. 26 Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies, ET Docket No. 92-9, First Report and Order and Third Notice of Proposed Rule Making, 7 FCC Rcd 6886 (1992). 27 Id. at 6886-6887. 28 Id. at 6496. 29 Waiver request at 3. 30 Id. 31 Id. 32 Id at 3-4. 33 Id. at 4. 34 Id. 35 Id. 36 See generally WAIT Radio, 418 F.2d 1153 (D.C. Cir 1969); see also Amendment of Part 74 of the Commission's Rules Governing Use of the Frequencies in the Instructional Television Fixed Service, Notice of Proposed Rule Making, 8 FCC Rcd 2828 (1993) (determined that the fundamental regulatory concerns implicated by a waiver request would be better addressed in a rule making proceeding). 37 See OpTel Supplemental Showing at 1-2 38 Id. ?? Federal Communications Commission DA 99-406 Federal Communications Commission DA 99-406