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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554


In the Matter of                )
                                )
MISSISSIPPI AUTHORITY FOR       )
EDUCATIONAL TELEVISION          )
                                )
Request for Clarification or, in the Alternative,)
Waiver of 47 C.F.R.  101.603(b)(2))


                  MEMORANDUM OPINION AND 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 request from the Mississippi Authority for Educational Television ("MAET")
for an interpretation of Section 101.603(b)(2) of the Commission's Rules, or, in the alternative, a waiver of this
rule.  MAET contends that the requested relief is necessary in order to consolidate, in the 6 GHz band,
television broadcast services with private operational fixed services.  For the reasons set forth below, we find
that MAET's requested interpretation of Section 101.603(b)(2) that television broadcast use of private
operational fixed microwave spectrum, as described by MAET, is not consistent with the Commission's Rules. 
Further, we conclude that MAET has failed to provide sufficient justification that grant of waiver under the
circumstances described herein is warranted.

                        II.  BACKGROUND

     2.  MAET operates eight television broadcast stations, eight FM broadcast stations, two television
translator stations, a television broadcast auxiliary station (TV BAS) television relay microwave system
consisting of 18 one-way links in the 6.875 - 7.125 GHz band, and a Private Operational Fixed Service (POFS)
microwave system consisting of 18 two-way links in the 960 MHz band.  MAET states that it plans to add
eight new digital television transmitters to operate simultaneously with its existing television transmitters in
order to work towards an all-digital broadcast system pursuant to the Commission's goals.

     3.  MAET is replacing its now obsolete POFS microwave system, and to that end it has sought and
received authorization for a 30 MHz channel in the 5.925-6.425 GHz band (6 GHz band) to operate its planned
two-way digital microwave system.  MAET wants to combine its educational television programming in the
same frequency band as its statewide POFS operations in order to avoid operation and maintenance of two
separate communications systems.  MAET argues that initially it will need only 10 MHz of its authorized 6
GHz frequency for educational television relay, and that in the near future a new multiplexor will be developed
to reduce the bandwidth required to only 5 MHz, or 15% of its system bandwidth capacity of 30 MHz.  In
addition, MAET discusses the other technical options it has considered, including higher frequencies in the 6
and 7 GHz bands, the 18 GHz band, and dual systems in the Part 74 and Part 101 frequency bands permitting
the planned operations.  However, MAET concludes that the other options are prohibitively expensive.  It also
states that its current towers are not heavy enough to support two sets of antennas.

     4.  Accordingly, MAET requests whether it may use up to 10 MHz of its recently authorized 6 GHz
frequency to offer the television broadcast service that it now offers under its Part 74 licenses.  In the
alternative, MAET requests a waiver of Section 101.603(b)(2) of our Rules to achieve the same result.  In
support of its waiver request, MAET argues that the proposed use will result in a more efficient use of the
microwave frequency spectrum by releasing BAS channels.  MAET also argues that the waiver would
represent a more efficient use of its existing towers and other resources, including the minimum amount of State
of Mississippi funds, and that it will allow MAET to move forward with the Commission's goals of offering
digital television at an earlier date than would otherwise be possible.

                        III.  DISCUSSION

     5.  Rule interpretation. Section 101.603(b)(2) of the Commission's Rules does not include the 6 GHz
frequency band for which MAET holds licenses among those on which licensees are permitted to transmit
program material for use in connection with broadcasting.  There are two potential exceptions to this general
rule against provision of broadcasting program material on spectrum authorized under Part 101.  The first
exception, set forth in Section 101.603(a)(2) of the Commission's Rules, states that in the frequency bands
6425-6525 MHz, 18,142-18,580 MHz, and on frequencies above 21,200 MHz, licensees may deliver any of
their own products and services to any receiving location.  MAET's description of its educational products
created for distribution to statewide outlets appears to comply with this use; however, since the subject licenses
do not include frequencies within the listed frequency bands, this exception does not apply to the pending
request.  

     6.  The second exception, set forth in Section 101.603(a)(7) of the Commission's Rules, states that
licensees may transmit program material from one location to another, provided that the frequencies do not
serve as the final RF link in the chain of distribution of the program material to broadcast stations.  MAET
states that its system plan would use the frequencies in question for simulcast operations to its eight television
stations.  As a result, it appears that MAET proposes to use its 6 GHz band frequencies as the final RF link
in the chain of distribution of program material for broadcast stations.  Thus, the exception in Section
101.603(a)(7) does not apply to MAET's proposal.  Since neither exception to Section 101.603(b) applies to
MAET's situation, by the terms of Section 101.603(b)(2), MAET's proposed use of the 6 GHz band is
prohibited.  

     7.  Waiver request.   MAET requests that if we determine that the Commission's Rules prohibit use
of the 6 GHz band for the television programming developed by the State of Mississippi, that the Commission
grant a waiver to allow this use.  In order to prove that a waiver should be granted, a petitioner must show that
either 1) 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 2) the unique facts and
circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise
contrary to the public interest, or the applicant has no reasonable alternative.  In support of its request,
MAET posits that the proposed use will result in a more efficient use of the microwave frequency spectrum
making BAS channels available.  While this may be one benefit of allowing MAET's proposed use, we also
must consider the current demand for 6 GHz band spectrum.  In particular, we note that the spectrum available
to POFS has been subject to increasing demand.  For example, 2 GHz licensees are being relocated to
accommodate Personal Communications Service licensing, and one of the main frequency bands to which 2
GHz incumbents may move is the 6 GHz band.  In addition, no new POFS spectrum has been designated.  At
the same time, we note that there is a growing need for infrastructure support spectrum in light of new
operations in the Local Multipoint Distribution Service, Wireless Communications Services, and expansion
of Commercial Mobile Radio Service systems. In view of these and other new services which place pressure
on POFS support spectrum, we cannot find that it is in the public interest to allow a waiver for broadcasting
use of the 6 GHz band, particularly if other spectrum in which such use is permitted is available.
 
     8.  MAET also argues that granting its waiver request would provide the State of Mississippi more
efficient use of its existing towers and other resources, including the minimum amount of State of Mississippi
funds, and that it will allow MAET to offer digital television at an earlier date than would otherwise be
possible.  However, as we noted supra, there are POFS frequencies which may be used for both local
broadcasting and internal communications. Moreover, we find no discussion in MAET's clarification request
that would persuade us that the cost to communications service users would be prohibitive if MAET uses
another system design.  Although the costs may or may not be higher with alternative system designs, MAET
has not shown that higher costs are impossible for the State of Mississippi to meet.  We encourage MAET to
investigate other options which would not overburden scarce POFS spectrum and which would also meet the
budget and serve the needs of the State of Mississippi.  We further note that Division staff has been assisting
and will continue to work with MAET to identify other options.

              IV.  CONCLUSION AND ORDERING CLAUSE

     9.  We find that MAET's proposed operations constitute a prohibited use in the 5.925-6.425 GHz band
under Section 101.603(b)(2) of the Commission's Rules.  In addition, we conclude that MAET has not shown
that the public interest would be served by grant of a waiver of 47 C.F.R.  101.603(b)(2) to permit such use. 

     10.  ACCORDINGLY, IT IS HEREBY ORDERED that, pursuant to 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 1.925 of the
Commission's Rules, 47 C.F.R.  1.925, the request for waiver of 47 C.F.R.  101.601(b)(2) filed by the
Mississippi Authority for Educational Television on January 21, 1998, IS DENIED.



                                   FEDERAL COMMUNICATIONS COMMISSION



                                   D'wana R. Terry
                                   Chief, Public Safety and Private Wireless Division
                                   Wireless Telecommunications Bureau