Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ASIA SKYLINK, INC. ) FCC Files Nos. 730216, 730217, ) 736359, and 736414 ) Petition for Revocation and for Other ) Appropriate Relief filed by Western ) Tele-Communications, Inc. ) ) Petition to Deny Applications to Modify ) Stations WPJC996, Aurora, CO ) and WPJC997, Denver, CO ) MEMORANDUM OPINION AND ORDER Adopted: December 20, 1999 Released: December 23, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. Before us are the following pleadings submitted by Western Tele-Communications, Inc. (WTCI): (1) a request that the Commission initiate a proceeding to revoke the licenses of Asia Skylink, Inc. (ASI) for Private Operational Fixed Microwave Radio Stations WPJC996, Aurora, Colorado, and WPJC997, Denver, Colorado; (2) a petition to deny the above-captioned ASI applications to modify Stations WPJC996 and WPJC997; and (3) a complaint that ASI engaged in a prohibited ex parte contact with Commission personnel regarding the petition to deny. For the reasons stated herein, we deny all of WTCI's requests, and will grant the above-captioned applications. II. BACKGROUND 2. On November 17, 1995, Comsearch, which has provided frequency coordinator services for both WTCI and ASI, initiated frequency coordination on behalf of ASI for new 6 GHz paths between Aurora and Denver, Colorado; Aurora and Englewood, Colorado; and Denver and Eldorado Mountain, Colorado. WTCI was among the carriers notified in connection with this frequency coordination, because it operates a 6 GHz point-to-point microwave radio system that includes a link between Denver and Russelville (near Aurora), Colorado. Of the eight pairs of 30 MHz channels in the 6 MHz band allocated by the Commission for both private operational-fixed and common carrier point-to-point microwave service, WTCI's Denver-Russelville link is licensed for six pairs and WTCI has coordinated the other two as growth channels. 3. On November 28, 1995, Comsearch informed WTCI that there was a possibility that ASI's proposed operations would cause interference to WTCI's growth channels. By letter dated November 30, 1995, ASI requested that WTCI relinquish its growth channels. By letter dated December 19, 1995, WTCI's coordinator at Comsearch advised ASI's frequency coordinator at Comsearch that WTCI "has future need for [its] growth channels and do[es] not wish to relinquish them at this time. Therefore, we consider the potential interference cases contained in our letter dated November 28, 1995 to be unresolved." 4. On January 19, 1996, ASI filed applications for new 6 GHz point-to-point microwave radio facilities in the Denver area. The applications included a statement from Comsearch that there were no unresolved interference objections. No objections were received, and the applications were granted on March 12, 1996. Paths between the Aurora (Station WPJC996) and Denver (Station WPJC997) facilities are in both directions. In addition, the Aurora facility has a path to another ASI facility at Englewood, Colorado, and the Denver facility has a path to an ASI facility at Eldorado Mountain, Colorado. 5. On October 7, 1996, ASI filed applications to modify the licenses for Stations WPJC996 and WPJC997 to change the antenna gains, centerline heights, and signal strengths. The applications included a statement from Comsearch that there were no unresolved interference objections. On November 14, 1996, WTCI filed a pleading captioned "Petition for Revocation and Other Appropriate Relief," requesting that the Commission initiate proceedings to revoke the licenses for Stations WPJC996 and WPJC997 because ASI's applications for those stations did not comply with the Commission's rules regarding prior frequency coordination. 6. On July 14, 1997, ASI requested dismissal of its application to modify the license for Station WPJC997, and filed another application to modify that station to change the antenna polarity and attenuate the transmitter power in order to reduce interference to WTCI. The coordination study included in this application states, "Western Telecommunications Inc. has not agreed to relinquish this growth channel. No other channels are assignable in accordance with FCC interference criteria." On August 28, 1997, WTCI timely filed a petition to deny this application, alleging that frequency coordination was incomplete and the conflicts still were not resolved. 7. On September 9, 1997, counsel for ASI spoke via telephone to the Chief of the Private Wireless Division, Wireless Telecommunication Bureau, regarding ASI's modification applications and WTCI's petition to deny. He requested expedited action on the applications on the grounds that the petition to deny merely repeated arguments WTCI made in previous filings, which in counsel's view the Commission resolved when it granted ASI's original applications. He also stated that delay by the Commission in processing the applications furthered WTCI's apparent goal of keeping competitors out of the Denver market. On September 22, 1997, WTCI submitted a letter objecting to these statements and requesting sanctions pursuant to Section 1.1216 of the Commission's Rules. III. DISCUSSION 8. As an initial matter, ASI contends that WTCI's Petition for Revocation, based as it is on information in ASI's original applications, is in effect an untimely petition to deny those applications or a petition for reconsideration of the grant of those applications, because it was filed more than thirty days after public notice of the filing and grant of those applications. WTCI replies that the Petition for Revocation is proper because Section 312(a) of the Communications Act empowers the Commission to revoke a license in two circumstances relevant to ASI's conduct: for false statements knowingly made by an applicant, and because of conditions coming to the Commission's attention that would warrant refusal to grant an initial license or permit. We need not resolve this dispute for we have reviewed the contentions in the Petition for Revocation and the Petition to Deny (which raises the same issues), and we find them to be without merit. 9. Section 101.103(d)(1) of the Commission's Rules provides in pertinent part, that Proposed frequency usage must be prior coordinated with existing licensees, permittees and applicants in the area, and other applicants with previously filed applications, whose facilities could affect or be affected by the new proposal in terms of frequency interference on active channels, applied-for channels, or channels coordinated for future growth. Coordination must be completed prior to filing an application for regular authorization, or an amendment to a pending application, or any major modification to a license. . . . All applicants and licensees must cooperate fully and make reasonable efforts to resolve technical problems and conflicts that may inhibit the most effective and efficient use of the radio spectrum; however, the party being coordinated with is not obligated to suggest changes or re-engineer a proposal in cases involving conflicts. Applicants should make every reasonable effort to avoid blocking the growth of systems as prior coordinated. . . . In the event that technical problems are not resolved, an explanation must be submitted with the application. WTCI claims that ASI did not complete coordination prior to filing its applications because WTCI's interference cases were left unresolved, and that ASI failed to include in its applications an explanation of the unresolved technical problems. WTCI also claims that ASI made no reasonable efforts to resolve the conflicts and that ASI failed to make every reasonable effort to avoid blocking the growth of WTCI's systems as prior coordinated. Further, WTCI asserts that ASI did not make the showing required by Section 101.103(d)(2)(xii), which states, "Any frequency reserved by a licensee for future use . . . must be released for use by another licensee, permittee or applicant upon a showing by the latter that it requires an additional frequency and cannot coordinate one that is not reserved for future use." Finally, WTCI argues that ASI did not satisfy former Section 94.15(c) of the Commission's Rules, to which ASI's initial applications were subject, which required an applicant to select a frequency band with the assignable bandwidth most consistent with the proposed communications requirements, and to provide a supplemental showing of the basis for the frequency band selection and bandwidth requested, and the proposed schedule for implementation of bandwidth utilization. 10. Having reviewed the entire record in this matter, we conclude that ASI's applications were not deficient. As described above, ASI and WTCI came to an impasse over the latter's refusal to relinquish its growth channels. Several of WTCI's arguments are based on the premise that the impasse constituted an unresolved technical problem under the Commission's Rules that left ASI's coordination incomplete and should have been explained in ASI's applications. We concur with ASI's contention, however, that WTCI's unwillingness to release its growth channels was not an unresolved "technical problem." Thus, we disagree with WTCI's assertions that ASI's coordination or applications were incomplete. 11. Moreover, it is not clear what further efforts ASI could have made to resolve the conflict. ASI states that it purposely designed its system to use only one of WTCI's growth channels, notwithstanding the fact that this design was to ASI's detriment. ASI claims that it used the same frequency at its Eldorado Mountain and Aurora sites, at the risk of increased interference into its own system due to reflection, solely to avoid using WTCI's other growth channels. ASI further states that it also chose high-performance antennas to improve the interference characteristics of its system. 12. Notably, WTCI does not refute ASI's contentions and instead contends that ASI could have made greater efforts to avoid blocking the growth of WTCI's systems by changing the polarity of the signal from Denver to Aurora or by choosing a frequency in the 11 GHz band. ASI argues that WTCI's suggestions are not realistic solutions. It cites an engineering analysis performed by Comsearch to determine ASI's alternative frequency options. ASI asserts that this letter recognizes that whether or not ASI changed the polarity of the Aurora receive channel, ASI's Denver and Aurora receivers would incur "major" interference from WTCI's stations, and that ASI could not change the polarity of the Aurora transmit signal because "it [is] already crosspole (best scenario) to [another of] WTCI's growth frequenc[ies]." ASI asserts that if it implemented WTCI's suggestion, its system would be inoperable should WTCI ever decide to activate one of the growth channels it has claimed for the Russelville station. ASI further claims that Comsearch was able to find only one clear 11 GHz frequency pair that conceivably could meet ASI's needs, and even that channel pair was subject to potential interference from yet another WTCI transmitter located only 0.1 mile away. Upon reviewing the record in this matter, we are not persuaded that WTCI's suggestions would constitute reasonable efforts to avoid blocking the growth of its systems. 13. In addition, we agree with ASI that Section 101.103(d)(2)(xii) of the Rules required WTCI to relinquish the channel pair requested by ASI. WTCI contends that ASI has shown neither that it requires WTCI's growth channel nor that no other channel is available that is not reserved for future use. ASI's applications indicate, based on expected customer demand, an initial baseband loading of 2400 channels and a 10-year projected baseband channel load of 2400 channels. ASI, like all licensees, is required to meet the efficiency standards of Section 101.141 of the Commission's Rules. Under the circumstances presented, we do not have sufficient reason to doubt that ASI will meet the standards. In addition, we already have rejected WTCI's suggestion that ASI should have used an available 11 GHz channel, instead. The Commission's "policy is to protect the future expansion of existing growth routes to the extent practicable." We find that it is not practicable for WTCI to hold all of its growth channels in light of ASI's more current requirements. 14. Moreover, when it enacted Section 101.103(d), the Commission contemplated that growth channels would be for "months," not years. The Commission specifically stated that, under this rule, "any party needing to hold growth channels for longer than six months must demonstrate a need for them in the event that another entity is unable to clear another channel." When ASI filed its applications, WTCI had been holding its growth channels at its Denver and Russelville stations for more than six years without offering a justification for its need for them, other than the statement that it "does not wish to relinquish [them]." 15. Finally, we reject WTCI's argument that ASI did not indicate how selection of 6 GHz channels with 30 MHz assignable bandwidth is consistent with its communications requirements, as required by former Section 94.15(c). WTCI presumes that ASI's services are provided over equivalent 4 kHz, voice-grade channels based on a single 30 MHz analog radio channel ordinarily accommodating up to 2400 voice-grade channels. WTCI then states that ASI's need for such expansive bandwidth over its proposed system has not been established. We reject WTCI's argument that ASI did not make the showing required by former Section 94.15(c) for the same reasons we rejected WTCI's argument that ASI did not make the showing required by Section 101.103(d)(2)(xii). 16. Therefore, we conclude that WTCI's Petitions should be denied. While we are not persuaded by WTCI's arguments, we nonetheless note that ASI should have cooperated more fully in its endeavors to satisfy its frequency coordination obligations and we caution it to do so in the future. It appears that ASI overly relied on its frequency coordinator and failed to directly provide WTCI with the showing that no other frequencies were available in the 6 GHz band and state its reasons for why it needed one of those channels. We also disapprove of WTCI's apparent attempts to prior- coordinate and reserve all the wider channels in the 6 GHz band as its growth channels. In the competitive environment which exists today, frequency spectrum is becoming more scarce, especially in the lower frequency bands where longer microwave routes are possible. 17. Ex Parte Complaint. WTCI also argues that the statements of ASI's counsel on September 9, 1997, to the Chief of the Private Wireless Division were an impermissible ex parte presentation. We disagree. Ex parte presentations are communications directed to the merits or outcome of a proceeding which, if written, are not served on the parties to the proceeding or, if oral, are not preceded by notice to the parties and an opportunity for the parties to be present. An oral presentation giving reasons, other than the need to resolve administrative delay, why the proceeding should be resolved is not treated as an ex parte presentation if a summary is promptly filed in the record and served on the other parties. While the substance of ASI's counsel's statements -- that the matter was deserving of expedited action because the Commission had already addressed the issues, and a delay could have the affect of keeping competitors out of the Denver market -- were reasons other than the need to resolve administrative delay why the proceeding should be resolved, ASI's counsel promptly filed a summary with the Commission and served a copy on WTCI's counsel, so the contact is not considered an ex parte presentation under the Commission's Rules. Further, contrary to WTCI's suggestion, the fact that ASI made the same points in some of its pleadings in this proceeding does not convert the statements into discussions of the merits of the case. Thus, we find that the statements of ASI's counsel did not constitute a violation of the Commission's ex parte rules. IV. CONCLUSION 18. For the reasons stated above, WTCI's Petitions are denied. Specifically, we conclude that ASI met the fundamental requirements of Section 101.103 of the Commission's Rules pertaining to frequency coordination, and that WTCI does not have a sufficient basis under these circumstances to retain reservation of all of its prior-coordinated growth channels. V. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 309, and 312 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 312, and Section 1.939 of the Commission's Rules, 47 C.F.R.  1.939, WTCI's Petition for Revocation and for Other Appropriate Relief, filed on November 14, 1996, and Petition to Deny, filed on August 28, 1997, ARE DENIED, and FCC File Nos. 730217, 736359, and 736414 filed by Asia Skylink, Inc. will be granted. 20. IT IF FURTHER ORDERED that, pursuant to Section 1.934 of the Commission's Rules, 47 C.F.R.  1.934, FCC File No. 730216, filed by ASI on October 7, 1996, SHALL BE DISMISSED. 21. This action is taken pursuant to the authority delegated by Sections 0.131 and 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