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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 Application of ) ) DIVERSIFIED COMMUNICATIONS, INC. ) File No. 9703537 ) For Modification of ) License for Local Television Transmission ) Service Station WPJC398 ) ) ORDER Adopted: May 6, 1999 Released: May 6, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us a Petition for Reconsideration (Petition) filed on February 19, 1998, by Diversified Communications, Inc. (Diversified). In the Petition, Diversified seeks reconsideration of the dismissal of the above-captioned application by the Public Safety and Private Wireless Division's Licensing and Technical Analysis Branch (Branch). For the reasons stated herein, we deny the Petition and affirm the Branch's decision. II. BACKGROUND 2. On November 13, 1995, the Wireless Telecommunications Bureau (Bureau) released the 39 GHz Freeze Order, which, in response to a petition for rulemaking, "froze" the acceptance of new 38.6 - 40.0 GHz (39 GHz) band applications. On December 15, 1995, the Commission adopted a Notice of Proposed Rule Making and Order, which, inter alia, stated that applications for modification of existing 39 GHz licenses filed on or after November 13, 1995, would not be accepted for filing, unless those applications: (a) did not enlarge any portion of the proposed area of operation; and (b) did not change frequency blocks, other than to delete a frequency. 3. On August 20, 1997, Diversified filed the above-captioned application, which proposed modifying Local Transmission Television Service (LTTS) Station WPJC398 to change the authorized service in the 39 GHz band from LTTS to fixed point-to-point microwave service, and to upgrade its coordination status from secondary to primary. The subject application also requested a waiver of certain Commission Rules to the extent that its proposed modification was at variance with those rules. Diversified is currently authorized to operate LTTS service nationwide on various channel bands, including the 39 GHz band, excluding areas within 35 miles of the Canadian border. 4. On November 3, 1997, the Commission released a Report and Order and Second Notice of Proposed Rulemaking (Report and Order and Second NPRM), which amended the Commission's Rules to facilitate more effective use of the 39 GHz band. The Report and Order and Second NPRM, inter alia, dismissed without prejudice all applications that were: (a) mutually exclusive; (b) applications that were not yet on public notice, or for which the 60-day cut-off period for filing competing applications had not been completed prior to November 13, 1995; and (c) modification applications or amendments thereto that proposed to enlarge the applicant's service area and/or change frequency blocks. 5. On January 21, 1998, the Branch dismissed Diversified's modification application. The Branch reasoned that because the Commission's LTTS rules do not permit fixed point-to-point microwave operation, and Diversified was seeking a license to operate at a location for longer than six months (i.e., a "permanent" license), the application was effectively a new 39 GHz point-to-point microwave application. The Branch further reasoned that pursuant to the 39 GHz Freeze Order, the application was unacceptable for filing. 6. On February 19, 1998, Diversified filed the Petition, requesting reconsideration of the dismissal of its application. Diversified first claims that the subject application should not be classified as a new application, because it "merely seeks" to change the authorized service from temporary fixed LTTS to point-to-point microwave. Diversified asserts that Part 101 of the Commission's Rules does not preclude the proposed modification of Station WPJC398. Diversified also argues that the application is not subject to the "freeze" on 39 GHz applications because it neither proposes to enlarge Station WPJC398's current service area nor change its frequency blocks. In addition, attached to the Petition is an amendment, which requests assignment of one of two suggested 39 GHz frequency pairs to Station WPJC398, and a change of service area to encompass a rectangular service area (RSA) which Diversified plans to use to provide point-to-point microwave service to subscribers in the Baltimore, MD and Washington, DC areas. Diversified seeks to use the proposed upgraded microwave system to provide a number of subscriber services, including video transmission, broadband data, Internet access, and paths to and from satellite earth stations. III. DISCUSSION 7. We conclude that Diversified's proposal to change Station WPJC398's class of service and upgrade its coordination status constitutes a de facto request for authorization to provide new point-to-point microwave service utilizing specified 39 GHz frequency pairs on a primary basis. As Diversified itself recognizes, the requested modification would permit the provision of a service significantly different from that presently authorized under the license for Station WPJC398. Consequently, we believe that such proposal is most appropriately characterized and treated as an application to provide new point-to-point microwave service. Further, we note that in attempting to obtain authorization for a new point-to-point microwave service by modifying Station WPJC398, Diversified seeks to have the subject application processed under the former 39 GHz licensing rules. 8. We also disagree with Diversified's contention that the Commission's Rules permit modification of Station WPJC398 as proposed. LTTS is a domestic public communications service that utilizes microwave facilities to establish transmission links for temporary mobile television pick-up operations. LTTS stations are temporary fixed stations, authorized to operate from temporary locations for periods not to exceed six months. Section 101.815(a)(1) of the Commission's Rules provides that LTTS temporary services that are initially known to be of longer than six months' duration may not be provided under a temporary fixed authorization, but shall be rendered pursuant to a regular license for microwave facilities. Nevertheless, Diversified seeks to change Station WPJC398's class of service from nationwide LTTS, to point- to-point microwave, utilizing the 39 GHz band, with one RSA encompassing the Baltimore/Washington areas. Diversified's proposed modification would, therefore, result in a long-term authorization for Station WPJC398 in the new service area. Because the proposed operation of Station WPJC398 will exceed six months, it may be authorized pursuant to a regular license, but not under Diversified's current temporary fixed authorization for Station WPJC398. Accordingly, we find that Diversified must obtain a new point-to-point microwave license in order to provide the proposed services. 9. Moreover, we conclude that the Commission's Rules preclude the provision of point-to-point microwave service under an LTTS authorization. Section 101.803 of the Commission's Rules, which delineates the conditions of LTTS frequency assignment and permissible use of those frequencies, states, in pertinent part, that LTTS operations may be assigned frequencies listed in Sections 74.602(a), 78.18(a)(7), and 78.18(a)(8) of the Commission's Rules; and LTTS carriers may use LTTS frequencies only to provide services described in Sections 74.631 and 78.11 of the Commission's Rules. Section 74.602 of the Commission's Rules permits use of the 39 GHz band for LTTS service on a secondary basis, but neither Section 74.631 nor Section 78.11 of the Commission's Rules list point-to-point microwave as a permissible service for LTTS stations. Consequently, Diversified may not "upgrade" its existing LTTS license to provide point-to-point microwave service. We, therefore, affirm the Branch's finding that the application is effectively a new 39 GHz application filing, and that it is unacceptable for filing pursuant to the 39 GHz Freeze Order, as well as the subsequent Notice of Proposed Rule Making and Order. 10. Diversified further argues that because it has "proposed neither enlargement of its operating area nor frequency block changes" the application is not subject to the 39 GHz application "freeze." As discussed supra, Diversified's proposed operation may only be offered pursuant to a new point-to-point microwave license, and therefore its argument that the application is not subject to the 39 GHz application "freeze" is misplaced. Further, as also previously discussed, 39 GHz applications filed on or after November 13, 1995 have been dismissed. 11. Additionally, Diversified's request for waiver of Section 101.803(b) of the Commission's Rules and associated rules is denied. Section 1.925 of the Commission's Rules states that rule waivers will not be granted unless an applicant affirmatively shows that either: (a) the underlying purpose of the rule would not be served in a particular case and that grant of the waiver is otherwise in the public interest; or (b) that considering the "unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome, or otherwise contrary to the public interest, or the applicant has no reasonable alternative." We find that Diversified failed to make a sufficient showing that grant of a waiver is warranted under the circumstances described. Diversified simply stated, without any explanation or elaboration, that its requested waiver would serve the public interest by "promot[ing] competition and the FCC's flexible frequency allocation policies." Absent such elaboration, we find that the record is devoid of substantiation as to how grant of the requested waiver would promote competition or otherwise further the public interest. Accordingly, we conclude that Diversified did not make a satisfactory showing that a rule waiver would be justified. IV. CONCLUSION 12. For the foregoing reasons, we deny Diversified's Petition for Reconsideration, dismiss the related amendment, and uphold the Branch's dismissal of the subject application. V. ORDERING CLAUSE 13. It is ORDERED in accordance with Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i); 405, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that the Petition for Reconsideration filed on February 19, 1998, by Diversified Communications, Inc. is DENIED. This action is taken pursuant to delegated authority granted under Sections 0.131; 0.331 of the Commission's Rules, 47 C.F.R.  0.131; 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau