[Federal Register Volume 61, Number 170 (Friday, August 30, 1996)]
[Rules and Regulations]
[Pages 45903-45905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22195]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[GEN Docket No. 90-314; FCC 96-340]
Omnipoint Communications New York MTA Frequency Block A;
Establishment of New Personal Communications Services
AGENCY: Federal Communications Commission.
ACTION: Final Rule.
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SUMMARY: By this action, the Commission denies a petition for
declaratory ruling filed by The Wireless Communications Council (WCC).
The Commission finds that WCC has not demonstrated the existence of a
controversy or uncertainty sufficient to warrant exercise of the
Commission's discretion to issue a declaratory ruling. The intended
effect of this action is to clarify when it is appropriate for the
Commission to issue a declaratory ruling regarding whether a party
awarded a pioneer's preference has made substantial use of its
pioneering technology.
EFFECTIVE DATE: August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Rodney Small or Charles Iseman, Office
of Engineering and Technology, at (202) 418-2452 or (202) 418-2444,
respectively.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Memorandum Opinion and Order (MO&O) in GEN Docket 90-314, FCC 96-340,
adopted August 9, 1996, and released August 23, 1996. The full text of
this Commission decision is available for inspection and copying during
regular business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW, Washington, DC. The complete text of this decision also may
be purchased from the Commission's duplication contractor,
International Transcription Service, Inc., (202) 857-3800, 2100 M
Street, N.W., Suite 140, Washington, D.C. 20037.
Summary of MO&O
1. In the Third Report and Order (Third R&O) in GEN Docket No. 90-
314 (the broadband Personal Communications Services (PCS) proceeding),
59 FR 9419 (February 28, 1994), the Commission awarded pioneer's
preferences to American Personal Communications (APC), Cox Enterprises,
Inc. (Cox), and Omnipoint Communications, Inc. (Omnipoint). The
Commission directed the Wireless Telecommunications Bureau (Bureau) to
condition the broadband PCS licenses received by APC, Cox, and
Omnipoint upon each licensee building a system that substantially uses
the design and technologies upon which its preference award is based.
Specifically, the Commission stated that this condition would apply in
the service area for which the preference is being granted and for the
initial required five-year build-out period specified in the rules for
broadband PCS.
2. Omnipoint was awarded a pioneer's preference for having designed
and manufactured a 2 GHz spread spectrum handset and associated base
station equipment, and for proposing a viable service with the
flexibility to be implemented in a variety of environments with
capabilities useful to subscribers. This preference granted Omnipoint
the right, if otherwise qualified, to use a 30 megahertz channel block
(Block A, 1850-1865 MHz and 1930-1945 MHz) in the Major Trading Area
that includes northern New Jersey (New York MTA). On December 13, 1994,
the Bureau granted a pioneer's preference license to Omnipoint, on
condition that ``Omnipoint * * * shall construct a * * * system * * *
that substantially uses the design and technology upon which the
pioneer's preference award * * * was based,'' and on condition that
Omnipoint retain control of the license for three years or until it has
met the five-year build-out requirement, whichever is the first to
occur.
3. On January 16, 1996, WCC submitted a petition for declaratory
ruling, urging the Commission to clarify the ``substantial use''
condition, as
[[Page 45904]]
specified in the pioneer's preference license awarded to
Omnipoint.1 WCC asserts that public evidence indicates that
Omnipoint will initially use Global System for Mobile Communications
(GSM) equipment for its New York PCS network, rather than the IS-661
technology for which the Commission awarded Omnipoint a preference.
Specifically, WCC attaches the statement of its consulting engineer,
Charles Jackson, who asserts that he has reviewed the publicly
available information and believes that Omnipoint is currently
constructing a GSM system with only minor use of IS-661 technology. WCC
requests the Commission to clarify the extent to which Omnipoint must
use its own technology to retain its preference award and asks several
questions, including whether the substantial use condition requires
Omnipoint to use its IS-661 interface from the inception of its
broadband PCS operations pursuant to its license.
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\1\ The WCC petition is styled as a ``Petition for
Clarification.'' Because the petition essentially asks the
Commission to issue a declaratory ruling defining in greater detail
the meaning and scope of the ``substantial use'' condition placed on
pioneer's preference licenses, the Commission is treating it as a
petition for declaratory ruling pursuant to 47 C.F.R. Sec. 1.2.
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4. On January 31, 1996, Omnipoint submitted a response, in which it
argues that WCC's petition should be dismissed or denied on five
grounds. Omnipoint first states that ``WCC has failed to articulate who
it is, whom it represents, or how it or its membership, if any, is
affected by Omnipoint's activities in the New York MTA.'' Omnipoint
notes that the Commission's rules permit requests for clarification of
a decision only when the petitioner demonstrates the existence of a
genuine decisional controversy or uncertainty, and argues that WCC has
failed to make such a demonstration. Second, Omnipoint contends that
WCC's petition is in substance not a petition for clarification but an
untimely filed petition for reconsideration of the Third R&O. Third,
Omnipoint addresses WCC's substantive allegations. Omnipoint avers that
in the deployment of its New York MTA PCS system, it is, in fact,
substantially using the IS-661 technology for which it received a
preference. It adds that other companies are ``licensing and
commercializing'' this technology. Omnipoint stresses that it is
deploying and using its IS-661 technology in conjunction with GSM, and
that such use of multiple technologies is similar to the practices of
most cellular and other broadband PCS licensees. Omnipoint concludes
that WCC is unfairly asking the Commission to prohibit only Omnipoint
from using multiple technologies in deploying a broadband PCS system.
Fourth, Omnipoint submits that WCC's petition is not ripe for
consideration because there is no Commission requirement that pioneers
demonstrate compliance with the substantial use condition prior to the
expiration of the five-year build-out requirement. Hence, Omnipoint
argues that it should be afforded five years to comply fully with the
condition in the New York MTA. Finally, Omnipoint states that the
substantial use condition is not vague and does not need to be
clarified by an order that could inadvertently delay the rapid
deployment of pioneers' systems.
5. On February 7, 1996, WCC submitted a reply to Omnipoint's
response in which it contends that Omnipoint offers no information to
suggest that WCC's petition is unwarranted. WCC states that it is not
arguing that Omnipoint must use only IS-661 technology in the New York
MTA, but is asking merely that the Commission define the substantial
use condition associated with Omnipoint's pioneer's preference license.
WCC also states that Omnipoint does not attempt to clarify the extent
to which Omnipoint will use its IS-661 technology in the New York MTA,
either initially or over a five-year period.
6. The Commission has discretionary authority to issue a
declaratory ruling to ``terminat[e] a controversy or remov[e]
uncertainty.'' The doctrine of standing was developed by the courts as
an analytic tool to determine whether the exercise of jurisdiction by a
court over a given case would exceed the limitation of ``the scope of
the federal judicial power to the resolution of `cases' or
`controversies.' '' This jurisdictional limitation is set forth in
Article III of the U.S. Constitution. Although this limit on
jurisdiction is not directly applicable to administrative agencies such
as the Commission and there are no statutory or regulatory standing
requirements applicable to the Commission in the declaratory ruling
context, the Commission believes that the presence or absence of
standing is a useful factor to consider in determining whether a
``controversy'' or ``uncertainty'' exists in a form sufficiently
crystallized to warrant our consideration in the context of a
declaratory ruling.
7. To establish standing in the context of federal appellate
proceedings, a petitioner must satisfy a three-pronged test. That is,
the petitioner must allege (1) A ``distinct and palpable'' personal
injury-in-fact that is (2) ``fairly traceable'' to the respondent's
conduct and (3) redressable by the relief requested. By analogy, in
considering similar factors in the declaratory ruling context, the
Commission's review of the pleadings indicates that WCC has not
identified itself, its membership, or its interest in the Omnipoint
application. Though WCC has alleged a general concern that the
``substantial use'' condition should be clarified to ``ensure that
Omnipoint is in full compliance with the condition[ ] * * *, and that
it is deserving of the substantial financial benefits attached to its
license,'' it has not alleged how it personally would be injured if
Omnipoint were not to comply with the ``substantial use'' condition.
Its general allegations of potential harm to Omnipoint's competitors
and to the U.S. Treasury are not distinct and palpable injuries
personal to WCC.
8. In addition, although ripeness concerns addressed by federal
courts in the context of Article III do not apply to agency declaratory
rulings, concepts of ripeness can also provide a useful analogy in
determining whether the Commission should exercise its discretion to
issue declaratory rulings. The Commission concludes that this is not an
appropriate case to issue such a ruling because the question of the
extent to which technology must be deployed in order to satisfy the
``substantial use'' condition is not ripe for our consideration at this
time and no unusual and compelling circumstances are present. A finding
of ``substantial use'' entails a judgment of the degree and/or nature
of deployment and use, which can be affected by the nature and extent
of other technologies with which the pioneer's preference technology is
entwined, the effect of market forces, the effect of ensuing
technological advancements, and other factors. Such judgments are best
made on a case-by-case basis. No precise formula for ``substantial
use'' can productively be set forth at this time, and any effort to do
so would only serve to delay unnecessarily the deployment and use of
pioneer's preference technology. In the instant case, Omnipoint's
broadband PCS system in the New York MTA is still under construction,
and Omnipoint has until the five-year build-out date specified in its
license authorization, December 13, 1999, to meet its build-out
requirements. Therefore, the issue of substantial use is not yet ripe
for Commission review.
9. Therefore, for these reasons, the Commission declines to
exercise its discretion to issue a declaratory ruling here.
Accordingly, it is ordered that the petition for declaratory ruling
filed on
[[Page 45905]]
January 16, 1996 by The Wireless Communications Council is denied.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-22195 Filed 8-29-96; 8:45 am]
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