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What I Did On My
Summer Vacation As the MMDS industry is approaching a watershed event in its history: the first two-way application filing window, set for July 3-10, many hundreds of applications to facilitate high-speed, two-way data service are expected to be filed with the FCC. When implemented, a large segment of the MMDS industry will begin converting from video delivery to competitive wireless Internet and local loop distribution services. From its inception in the early 1980's, the MMDS industry has been steadily evolving, from analog video to digital video and now to two-way data delivery, always with the expectation that the new use of the spectrum will be better (i.e. more profitable) than the last. Operators like Sprint and Worldcom, which have bet upwards of $2 billion on the promise of MMDS two-way technology, have looked forward to the day when they can provide new, competitive services to the market place using this long under-utilized "wireless cable" spectrum. For months, engineers have worked feverishly trying to get software programs to work, designing two-way systems, reviewing FCC databases and churning out applications. And now, the filing window awaits. After all of the effort to craft rules, design systems and file applications, now the real work begins, for the window is not an end but a beginning. To set the stage for the post-window period, applications filed in the two-way window must be served on all incumbent potentially affected licensees and applicants. Applications for booster stations, response station hubs and I-channel stations, which are filed on a new FCC Form 331, must be served on CD-ROM, while ITFS modification applications remain subject to FCC Form 330 and the pre-existing service rules. Following the window, the FCC will issue a public notice that the applications have been "tendered" for filing. This notice does not mean that the applications are acceptable for filing, but rather that the Commission has received them. This notice triggers a critical 60-day period during which licensees can resolve interference conflicts with other applications filed during the window. It thus will be absolutely imperative for licensees and operators to review proposals filed for neighboring markets to determine whether there are any interference concerns. To the extent interference issues exist, applicants can amend their technical proposals or enter into interference consent agreements to resolve conflicts. During this period, absent consent to the acceptance of interference, amendments increasing potential interference to previously authorized or proposed facilities will not be permitted. To facilitate settlement discussions, new applications will not be accepted during this amendment period. It is absolutely critical that operators and licensees review and analyze nearby applications closely to determine whether and to what extent there may be risk of interference. Applicants that do not perform their due diligence at this stage run a substantial risk of operational (and financial) difficulties down the road. It's the classic "pay me now or pay me later" scenario.
After the 60-day amendment period, the Commission will issue a second public notice announcing the acceptance for filing of the applications, as amended. Thereafter, interested parties will have 60 days to file petitions to deny. Here again, it will be essential for applicants and licensees to be vigilant in reviewing the amended proposals to ensure that there are no unresolved interference issues. Interference as between applications filed during the initial window will not be a valid basis for such petitions, but interference to incumbent MMDS and ITFS facilities can be. If no petitions to deny are filed, all properly certified applications that are unopposed and not subject to random audit by the Commission will be automatically granted at the conclusion of this 60-day period. Thereafter, two-way applications and ITFS major change applications can be filed on a "first come, first served" basis. As is evident, the post-window period is a very important part of the two-way implementation process. First, licensees and applicants, with the assistance of their engineers and attorneys, will need to carefully review and analyze two-way and other window-filed applications as soon as possible following release of the initial "tender" notice. Then, to the extent they have not done so prior to the filing window, they will need to negotiate interference coordination agreements with other applicants that file in the window and/or amend their proposals to reduce or eliminate interference. The right to complain about interference will no longer exist after the initial 60-day public notice period; thereafter, licensees and operators will be left to there own devices to resolve technical conflicts. About the Author Stephen E. Coran is a partner in the Washington, D.C. telecommunications law firm of Rini, Coran & Lancellotta, P.C. He can be contacted at scoran@rclpc.com.
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