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					                                 Before the
                   FEDERAL COMMUNICATIONS COMMISSION
                            Washington, DC 20554

In re Request of                             )
                                             )
AT&T Inc., BellSouth Corporation, Comcast    )
Corporation, NextWave Broadband Inc.,        )
NTELOS, Inc., Sprint Nextel Corporation,     )          DA 06-1009
Verizon Laboratories Inc., and WaveTel NC    )          WT Docket No. 06-102
License Corporation                          )
                                             )
For Limited Extension of Deadline for        )
Establishing Compliance With Section 27.14   )
Substantial Service Requirement              )



                   REPLY COMMENTS OF THE WCS COALITION




                                                 Paul J. Sinderbrand
                                                 Mary N. O’Connor
                                                 J. Wade Lindsay

                                                 WILKINSON BARKER KNAUER, LLP
                                                 2300 N Street, NW
                                                 Suite 700
                                                 Washington, DC 20037-1128
                                                 202.783.4141




June 23, 2006
                                             TABLE OF CONTENTS



I.     INTRODUCTION .............................................................................................................. 1
II.    THE HIGH POWER TERRESTRIAL REPEATERS NOW ADVOCATED BY
       THE DARS LICENSEES WERE NOT PROPOSED UNTIL AFTER THE WCS
       LICENSES WERE GRANTED ......................................................................................... 3
III.   XM AND SIRIUS MISCHARACTERIZE THE EXTENSION REQUEST AND
       OTHERWISE DISTORT THE FACTS ............................................................................. 7
IV.    CONCLUSION................................................................................................................. 15
                                           SUMMARY

        The record before the Commission, particularly the comments submitted by equipment
vendors Intel Corporation, Motorola Inc., and Navini Networks, clearly support the WCS
Coalition’s request for a limited extension of the July 21, 2007 deadline for establishing
compliance with the 2.3 GHz band WCS substantial service requirement. These parties confirm
the major premises of the extension request, viz.: (i) that grant of the requested extension will
allow the Commission time to resolve the long-standing lack of rules governing operation of
DARS terrestrial repeaters in spectrum adjacent to the WCS allocation; (ii) that the lack of such
rules has effectively precluded the widespread offering of broadband and other advanced
wireless services over the 2.3 GHz band; and (iii) that WCS networks capable of providing such
services cannot be designed and deployed without knowing the interference environment in
which they must operate. In addition, these parties verify the licensees’ enthusiasm for using
standardized equipment, and confirm that, while equipment that will comply with WiMax
profiles based on IEEE 802.16-2005 is being developed for use in the 2.3 GHz spectrum,
certified equipment will not be available in time for deployment before the current WCS
substantial service deadline because the certification profile for the band has not yet been
finalized.

        Only XM Radio Inc. and Sirius Satellite Radio Inc. oppose the WCS Coalition’s request.
Despite their recognition that it is long past time to establish the rules to be applicable to DARS
repeaters, XM and Sirius both insist that the lack of such rules has not prejudiced the WCS
licensees’ ability to deploy service in the 2.3 GHz band. In essence, XM and Sirius suggest that
the WCS licensees knew of the risk of interference from DARS terrestrial repeaters when the
WCS auction was held and assumed that risk. What they conveniently ignore, however, is that at
the time of the WCS auction, the DARS terrestrial repeaters were described merely as low power
“gap-fillers.” The record clearly establishes that the high power transmitters that XM and Sirius
now seek to operate under permanent DARS rules – and that are so troubling to the WCS
licensees planning to deploy wireless broadband or other advanced wireless services – were not
proposed until after the WCS licenses had been granted.

        Perhaps recognizing this fundamental flaw in their position, XM and Sirius advance a
series of arguments that mischaracterize the WCS Coalition’s extension request, distort the facts,
and ignore well-settled precedent supporting grant of the limited extension sought here. This
noise should not distract from the question before the Commission – whether to force WCS
licensees to build sub-optimal networks merely to meet the WCS substantial service requirement,
or whether to grant a limited extension of time to give licensees and equipment manufacturers
time to design, build, and deploy the types of ubiquitous, high-speed, reliable networks that most
WCS licensees have identified as essential to meeting consumer demand for wireless broadband
and other advanced wireless services. It is clear that the public interest is best served by granting
such an extension and that XM and Sirius have offered no principled arguments to the contrary.
                                    Before the
                      FEDERAL COMMUNICATIONS COMMISSION
                               Washington, DC 20554

In re Request of                                    )
                                                    )
AT&T Inc., BellSouth Corporation, Comcast           )
Corporation, NextWave Broadband Inc.,               )
NTELOS, Inc., Sprint Nextel Corporation,            )
                                                    )         DA 06-1009
Verizon Laboratories Inc., and WaveTel NC
                                                    )         WT Docket No. 06-102
License Corporation                                 )
                                                    )
For Limited Extension of Deadline for               )
Establishing Compliance With Section 27.14          )
Substantial Service Requirement                     )


                     REPLY COMMENTS OF THE WCS COALITION

         The WCS Coalition,1 by its attorneys, hereby replies to the comments submitted by XM

Radio Inc. (“XM”) and Sirius Satellite Radio Inc. (“Sirius”) opposing the above-captioned

request for an extension of the current deadline for establishing compliance with the 2.3 GHz

band WCS substantial service requirement (the “Extension Request”).2

    I.   INTRODUCTION

         The Extension Request demonstrated that, consistent with applicable precedent, the

Commission should grant a limited extension of the current WCS substantial service deadline.3


1
  The WCS Coalition consists of AT&T Inc. (“AT&T”), BellSouth Corporation (“BellSouth”), Comcast
Corporation (“Comcast”), NextWave Broadband Inc., NTELOS, Inc., Sprint Nextel Corporation, Verizon
Laboratories Inc. (“Verizon”), and WaveTel NC License Corporation. These companies indirectly hold
the substantial majority of the Wireless Communications Service (“WCS”) authorizations. See
Consolidated Request for Limited Extension of Deadline for Establishing WCS Compliance with Section
27.14 Substantial Service Requirement, WT Docket No. 06-102, DA 06-1009, at n.1 (filed Mar. 22,
2006).
2
  See Public Notice, “Wireless Telecommunications Bureau Seeks Comment on Consolidated Request by
the WCS Coalition for Waiver of Wireless Communications Service Construction Rule,” DA 06-1009
(rel. May 10, 2006).
3
 As discussed in the Extension Request, the WCS Coalition believes that timely adoption of permanent
Satellite Digital Audio Radio Service (“DARS”) terrestrial repeater rules will enable WCS licensees to
meet the July 21, 2010 deadline the WCS Coalition has requested. If, however, the DARS interference
                                                      2

The Extension Request established that relief is warranted because of the current lack of

permanent rules governing the operation of DARS terrestrial repeaters in the spectrum band

immediately adjacent to the WCS allocation.               Absent such rules, WCS licensees cannot

determine the extent to which WCS operations will be vulnerable to brute force overload and

intermodulation interference from DARS terrestrial repeaters once permanent rules are adopted

and thus cannot effectively design, build, and deploy networks capable of providing the sorts of

ubiquitous wireless broadband and other advanced wireless services that most WCS licensees

believe the marketplace demands.

        The majority of the commenters support the Extension Request.4 Indeed, equipment

vendors Intel Corporation (“Intel”), Motorola Inc. (“Motorola”), and Navini Networks

(“Navini”) all confirm that WCS licensees are effectively precluded from designing and

deploying networks in the absence of Commission rules that govern the operation of DARS

terrestrial repeaters operating in spectrum adjacent to the WCS allocation and the interference

that such repeaters will cause to WCS operations. They also verify the licensees’ enthusiasm for

utilizing standards-based equipment and confirm that, while equipment compliant with WiMax

profiles based on IEEE 802.16-2005 is currently being developed for use in the 2.3 GHz

spectrum, certification and production of equipment for operation in the United States in that




issues cannot be resolved before July 21, 2007, the Commission should extend the WCS performance
requirement until three years after the date it releases an order resolving such issues, thereby assuring that
WCS equipment vendors and carriers have a fair opportunity to respond to whatever interference
environment is ultimately established.
4
 See Comments of WCS Wireless, WT Docket No. 06-102 (filed May 12, 2006); Comments of
Cellutech, Inc., WT Docket No. 06-102 (filed June 9, 2006); Comments of DigitalBridge
Communications, LLC, WT Docket No. 06-102 (filed June 9, 2006); Comments of Intel Corporation, WT
Docket No. 06-102, (filed June 9, 2006) (“Intel Comments”); Comments of Motorola Inc., WT Docket
No. 06-102 (filed June 9, 2006) (“Motorola Comments”); Comments of Navini Networks, WT Docket
No. 06-102 (filed June 9, 2006) (“Navini Comments”).
                                                   3

band under that standard will not likely occur in time for such equipment to be deployed before

the current WCS substantial service deadline.

          Unsurprisingly, only XM and Sirius oppose the Extension Request. As discussed below,

XM’s and Sirius’ filings mischaracterize the Extension Request, distort the facts, and ignore

well-settled precedent that supports grant of the requested relief.         The Commission should

therefore extend the current WCS substantial service deadline as requested.

    II.   THE HIGH POWER TERRESTRIAL REPEATERS NOW ADVOCATED BY
          THE DARS LICENSEES WERE NOT PROPOSED UNTIL AFTER THE WCS
          LICENSES WERE GRANTED

          When shorn of their irrelevant arguments, the essence of the XM and Sirius filings is that

the WCS licensees knew of the danger of harmful interference from DARS terrestrial repeaters at

the time of the WCS auction and thus “assumed the risk” of interference to their networks.5 In

truth, however, the record is clear that the nature and scope of the high power DARS terrestrial

repeaters that XM and Sirius now advocate was not revealed until after the WCS auction. As the

WCS Coalition explained in the Extension Request (and neither XM nor Sirius refutes), the

DARS terrestrial repeaters described at the time of the WCS auction were low power “gap-

fillers” for use in discrete areas (such as under bridges, in high mountain passes, and in tunnels)

where it may be uniquely difficult to receive DARS signals transmitted by satellite.6


5
 Comments of XM Radio Inc., WT Docket No. 06-102, at 2 (filed June 9, 2006) (“XM Comments”);
Opposition of Sirius Satellite Radio Inc., WT Docket No. 06-102, at 2, 12 (filed June 9, 2006) (“Sirius
Opposition”).
6
  See Extension Request at 6. See also Establishment of Rules and Policies for the Digital Audio Radio
Satellite Services in the 2310-2360 MHz Frequency Band, 11 FCC Rcd 1, 18 (1995) (“Some satellite
DARS applicants indicate that they intend to implement, as they find necessary, terrestrial repeaters or
‘gap-fillers,’ in urban canyons and other areas where it may be difficult to receive DARS signals
transmitted by a satellite.”); Establishment of Rules and Policies for the Digital Audio Radio Satellite
Service in the 2310-2360 MHz Frequency Band, 12 FCC Rcd 5754, 5812 (1997) (“DARS R&O and
FNPRM”) (“. . . some satellite DARS applicants intend to implement, as necessary, terrestrial repeaters,
or ‘gap-fillers,’ in urban canyons and other areas where it may be difficult to receive DARS signals
transmitted by a satellite.”). The number of such repeaters was also a matter of conjecture, although
                                                      4

          It was not until after the close of the WCS auction that XM and Sirius revealed any

intention to deploy high power repeaters designed to blanket large geographic areas. Although

their proposals would change many times over the coming years (often to the disadvantage of the

WCS community),7 in December 1999 XM proposed to deploy approximately 150 high power

repeaters, operating at EIRPs ranging as high as 40 kW.8 The following month Sirius stated that

it would need repeaters operating at up to 40 kW EIRP at approximately 105 sites in the urban

cores of 46 cities.9 The Commission no doubt recognized that these proposals represented a

dramatic technical departure from the gap-fillers that had been contemplated and thus released a




Sirius’ predecessor did confirm just before the auction that it had “always planned a limited number of
terrestrial stations” and criticized another potential DARS applicant for proposing to implement “scores”
of such repeaters. See Letter from Richard E. Wiley to Donald H. Gips, Richard Smith, and William
Kennard, CD Radio Request for Pioneer’s Preference (PP-24), at 5 (dated Oct. 2, 1996) (emphasis
supplied).
7
  On January 11, 2001, for example, XM presented a summary hand-out at a meeting of Commission staff
with WCS and DARS licensees in which it again confirmed that it would only deploy 150 repeaters with
an EIRP over 2 kW. See Attachment to Letter from William M. Wiltshire, Counsel to AT&T Wireless
Services, Inc., to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications
Commission, IB Docket No. 95-91 (dated Aug. 9, 2001). The number of proposed repeaters, however,
almost immediately began to increase dramatically. Later in January 2001, Sirius filed proposed rules
under which each DARS licensee would be entitled to deploy approximately 577 repeaters nationwide
with EIRP over 2 kW. See Letter from Carl R. Frank, Counsel to Sirius Satellite Radio, Inc., to Magalie
Roman Salas, Secretary, Federal Communications Commission, IB Docket No. 95-91 (filed Jan. 25,
2001). In April of that year, XM proposed a rule that would allow 250 repeaters operating between 10
kW and 40 kW EIRP as of right with the option for additional transmitters conditioned only upon
provision of appropriate filters for WCS base stations. See Letter from Bruce D. Jacobs, Counsel to XM
Radio Inc., to Magalie Roman Salas, Secretary, Federal Communications Commission, IB Docket No.
95-91 (filed April 25, 2001). Indeed, in its response to the Commission’s public notice offering suggested
solutions to the DARS repeater problem (Public Notice, “Request for Further Comment on Selected
Issues Regarding the Authorization of Satellite Digital Audio Radio Service Terrestrial Repeater
Networks,” Report No. SB-176 (rel. Nov. 1, 2001)), Sirius argued that it should be allowed to deploy an
unlimited number of high power repeaters, without regard to the interference into the WCS band, under
the guise of offering “solutions” and compromises. See, e.g., Reply Comments of the WCS Coalition, IB
Docket No. 95-91, at 21-22 (filed Dec. 21, 2001); Reply Comments of BeamReach Networks, IB Docket
No. 95-91, at 3-6 (filed Dec. 21, 2001).
8
    Supplemental Comments of XM Radio Inc., App. A, at 4-5 (filed Dec. 17, 1999).
9
    Supplemental Comments of Sirius Satellite Radio at 3 (filed Jan. 18, 2000).
                                                   5

Public Notice soliciting comment.10 In response, the Wireless Communications Association

International, Inc. (“WCA”) (whose membership included a large number of those holding WCS

licenses at the time), BellSouth, and Metricom Inc. all raised objections, demonstrating beyond

doubt that the high power repeaters being proposed would cause harmful interference to WCS

operations.11

       In short, XM and Sirius engage in revisionist history when they suggest that the WCS

licensees knew of any threat regarding high power DARS terrestrial repeaters when they bid at

auction and thereafter failed to actively protect their interests. Although the WCS auction

participants knew that there would be DARS repeaters to fill isolated coverage gaps, their

reasonable expectation at the time of the auction was that such repeaters would be low power and

would pose a substantially lesser threat than the high power repeaters XM and Sirius now

propose to operate on a permanent basis. Once it became evident that XM and Sirius were

contemplating high power terrestrial repeaters that would pose a serious threat of interference to

WCS terrestrial operations, the WCS community promptly brought their concerns to the




10
  See Public Notice, “Satellite Policy Branch Information,” IB Docket No. 95-91, GEN Docket No. 90-
357 (rel. Jan. 21, 2000).
11
   See Comments of BellSouth Corporation, IB Docket No. 95-91, GEN Docket No. 90-357 (filed Feb.
22, 2000); Comments of Wireless Communications Ass’n Int’l, Inc., IB Docket No. 95-91, GEN Docket
No. 90-357 (filed Feb. 22, 2000); Reply Comments of Metricom, Inc., IB Docket No. 95-91, GEN Docket
No. 90-357 (filed Mar. 8, 2000). WCS licensees continued to press these issues in ex parte filings. See,
e.g., Letter from Paul J. Sinderbrand, Counsel to WCA, to Magalie Roman Salas, Secretary, Federal
Communications Commission, IB Docket No. 95-91, at 2 (filed Dec. 15, 2000) (the analysis of George
W. Harter “concludes that the proposed deployment of numerous high-power terrestrial DARS repeaters
poses a substantial threat of interference.”); Letter from Karen Gulik, Counsel to AT&T Wireless, to
Magalie Roman Salas, Secretary, Federal Communications Commission, IB Docket No. 95-91, at 1 (filed
Feb. 1, 2001) (“Regardless of band emission limits, the brute force overload of such high power
transmissions would dramatically affect the integrity of the WCS licensees’ services. AT&T Wireless,
for example has calculated a 1 kilometer exclusion zone surrounding each transmitter where its fixed
wireless access equipment would be rendered useless.”).
                                                    6

Commission and have actively participated ever since in the efforts to craft a solution that is

fundamentally fair to both industries.12

        The WCS Coalition agrees with XM and Sirius that it is time to resolve the DARS

repeater rulemaking pending in IB Docket No. 95-91 and to set the rules by which DARS

repeaters and WCS will coexist.          As Motorola, Intel, and Navini all confirm, the WCS

community simply cannot design and deploy its network facilities until it knows the permanent

DARS repeater interference parameters it must accommodate.13 These parameters have not been

established, however, and “[a]bsent such information, it is not possible to design a system with

guaranteed performance, making it very difficult, if not impossible, to launch commercial

service.”14 Significantly, neither XM nor Sirius disputes this fact. Neither seriously suggests


12
   Given the consistent involvement of WCS licensees both before the Commission and in private
discussions with XM and Sirius, the DARS community undermines its credibility by asserting that the
WCS licensees are responsible for the delay in resolving the Commission’s proceeding to adopt final
DARS repeater rules. See Sirius Opposition at 14; XM Comments at 6. The Extension Request details
the timely efforts that numerous WCS licensees and their trade association undertook to demonstrate
WCS’ vulnerability to brute force overload and intermodulation interference from DARS terrestrial
repeaters, as well as the efforts made to address this issue with the Commission, and that discussion need
not be repeated here. See Extension Request at 7-9. Suffice it to say that the WCS community has found
that the DARS licensees have not always been as cooperative as they could have been, and have been
particularly frustrated by the DARS licensees’ propensity to alter the number and technical parameters of
the high power terrestrial repeaters they propose. See supra text at n.7.
13
   See Extension Request at 9 (“Until the WCS industry knows with certainty the extent to which WCS
will be vulnerable to harmful interference from brute force overload and intermodulation caused by
DARS terrestrial repeaters, WCS licensees cannot design and deploy networks capable of providing the
fast, reliable quality of service that consumers demand, and equipment suppliers will be unable to
complete development of products for use in the 2.3 GHz band within the United States.”); Motorola
Comments at 2-3 (“While WCS Coalition members have deployed a variety of limited fixed service
systems, the technical uncertainty surrounding the band has stymied larger-scale deployments. The lack
of technical rules governing the neighboring DARS band has led to technical uncertainty regarding the
interference environment that WCS operations will ultimately face, making it difficult for WCS licenses
to design their networks and for equipment vendors to design and build equipment.”); Intel Comments at
2; Navini Comments at 1; Motorola Comments at 6.
14
  Motorola Comments at 7 (“Equipment design considerations impacted by these uncertainties relate to
receiver design and performance parameters. . . . System design considerations impacted by these
uncertainties relate to determining the geographic area around each DARS transmitter where overload or
out-of-band interference would interfere with WCS operations.”).
                                                  7

that WCS licensees could somehow deploy networks capable of providing the ubiquitous

wireless broadband or other advanced services that the public demands without knowing the

metes and bounds of DARS interference.

 III.     XM AND SIRIUS MISCHARACTERIZE THE EXTENSION REQUEST AND
          OTHERWISE DISTORT THE FACTS

          Perhaps recognizing that their essential position – that WCS licensees assumed the risk of

interference from high power DARS terrestrial repeaters – is fundamentally flawed, XM and

Sirius throw up a variety of arguments that either mischaracterize the Extension Request or

otherwise distort the facts before the Commission.

          For example, XM argues that the requested extension should be denied because WCS

licensees could have deployed their networks without fear of interference from the DARS

repeaters, asserting that the Special Temporary Authorizations (“STAs”) pursuant to which XM

and Sirius operate require that any interference to WCS operations be cured.15 This argument is

disingenuous, at best. While it is true that XM and Sirius are required to cure interference that is

caused under the STAs, they have advocated a very different (and much less WCS-friendly)

approach to operations under permanent rules. Indeed, if XM and Sirius had ever been willing to

make non-interference the basis of permanent rules for the DARS terrestrial repeaters, the

rulemaking would have been completed long ago. Nevertheless, the WCS licensees cannot

reasonably assume that the DARS licensees will be required to cure any harmful interference and

do not know what level of interference protection will be afforded to them under the

Commission’s permanent DARS rules. Consequently, it is unreasonable to expect WCS

licensees to design and deploy networks prior to the establishment of those rules.



15
     XM Comments at 5-6.
                                                   8

           XM also states that WCS licensees have “offered no explanation for why they have been

unable or unwilling to deploy in areas not covered by repeaters.”16 The fact that neither XM nor

Sirius has deployed repeaters in a given market today, however, is no guarantee that they will not

do so in the future. Indeed, as recently as June 15, 2006, Sirius announced its intent to modify its

STA to deploy an additional 16 repeaters in: Boca Raton, FL; Clearwater, FL; Miami, FL; St.

Petersburg, FL; Los Angeles, CA; Valencia, CA; New York, NY; Hill Side, NJ; Lake View, NJ;

Jersey City, NJ; Rutherford, NJ; Dallas, TX; and Norwalk, CT.17 Thus, it would be reckless for

WCS licensees to design and deploy networks in areas in which there are currently no repeaters

because XM or Sirius may yet introduce repeaters in those areas, and absent permanent service

rules for the repeaters, the WCS community has no way of determining the nature and scope of

the interference to expect from those repeaters in the future.

           With regard to the WCS Coalition’s arguments that the extension is warranted due to the

regulatory uncertainty associated with the lack of permanent rules for DARS terrestrial repeaters,

XM would have the Commission believe that this “is the type of uncertainty that faces any

licensee.”18 In XM’s view, the WCS licensees have not initiated construction “for fear that the

Commission’s rules may change in the future.”19 XM misses the point; it is the current lack of

rules for DARS repeaters – not a prospective change in existing rules – that has hampered WCS

build-out.       Further, the WCS licensees could not have foreseen that it would take more than




16
     Id. at 6.
17
  Letter from Patrick L. Donnnelly, Executive Vice President and General Counsel, Sirius Satellite Radio
Inc., to Ms. Robin Cohen, Nextel Spectrum Acquisition Corp. (dated June 15, 2006).
18
     XM Comments at 8.
19
     Id.
                                                     9

eight years to adopt permanent rules to govern the operations of DARS terrestrial repeaters.20 In

short, WCS licensees were – and remain – faced with unique circumstances, not the typical

“regulatory uncertainty” faced by all licensees.

        Sirius falsely asserts that “[t]he [WCS] licensees concede that they will fail to achieve

both the construction requirement and any right to renewal over any other hypothetical

competing applicant.”21 In fact, no WCS licensee has made such a concession. To the contrary,

Sirius’ claim is belied by the plain and unambiguous language of the Extension Request itself:

                Although each WCS licensee will have to decide for itself how to
                make the best use of its spectrum holdings, most WCS licensees
                will be forced to construct facilities based on what they believe is
                the most expeditious way to meet the Commission’s construction
                requirements given the current regulatory uncertainty, not based on
                what they believe is the highest and best use of the spectrum. This
                would divert valuable capital resources to sub-optimal business
                plans and ultimately delay, if not preclude entirely, the delivery of
                broadband and other advanced wireless services to the public,
                including service to rural and other underserved areas. In other
                words, strict enforcement of the WCS substantial service
                requirement will not “promote efficient use of the spectrum” or
                “encourage the provision of service to rural, remote and insular
                areas” as the Commission originally intended.22


20
   This is precisely the sort of unanticipated uncertainty that, as even Sirius recognizes, should entitle a
licensee to an extension of a build-out deadline. See Sirius Opposition at 14.
21
  Sirius Opposition at 6. In a related vein, Sirius makes the nonsensical argument that “no WCS licensee
has filed for renewal, much less submitted details of its coverage, future plans, and investments, as
required by Section 27.14(a).” Id. at 6. While Sirius is factually correct, it ignores the fact that the
Commission’s rules bar WCS licensees from submitting their renewal applications until 90 days prior to
the expiration of their licenses, which means no WCS renewal applications can be filed until April 2007.
See 47 C.F.R. § 1.949(a).
22
   Extension Request at 11 (footnotes omitted); see also id. at Summary (“Thus, if the Commission does
not grant the requested relief, WCS licensees will be forced to consider alternative uses of the band to
satisfy their performance requirements under the rules. This, in turn, would force licensees to make
uneconomic choices about service deployment and to divert valuable capital resources to sub-optimal
business plans.”); id. at 4 (“Without relief by this date, some of the WCS Coalition members undoubtedly
will have to pursue alternative uses of the WCS spectrum to preserve their licenses, rather than deploy the
broadband and other advanced wireless services that most licensees believe are the highest and best use of
the spectrum. To meet the existing deadline through such an alternative use will require a licensee soon
to begin testing, purchasing equipment, and deploying networks based upon the limited WCS equipment
                                                      10

          Thus, notwithstanding Sirius’ claim, the Commission can reasonably expect most, if not

all, WCS licensees to satisfy the substantial service requirement.23 The question before the

Commission now is whether to force WCS licensees to build networks merely to meet the WCS

substantial service requirement, or whether to grant a limited extension of time to give licensees

and equipment manufacturers time to design, build, and deploy the types of ubiquitous, high-

speed, and reliable networks that most WCS licensees believe are essential to meet consumer

demand for wireless broadband and other advanced wireless services.24 There is long-standing

precedent in which the Commission has extended build-out deadlines so that spectrum can be put


available today.”); id. at 11 n.23 (“Because strict application of the current deadline will require WCS
licensees to move forward with deployments without knowledge of the vulnerability of those
deployments to DARS repeater interference, the resulting services likely will be inefficient and/or subject
to reliability problems associated with DARS interference.”); id. at 13 (“As in the case of the 900 MHz
band, now that the WCS industry is on the verge of deploying broadband and other advanced wireless
services, it makes little sense to require the immediate deployment of stopgap systems that will preserve
licenses, but not drive the WCS spectrum to what many believe to be its highest and best use for
consumers.”).
23
   Sirius’ mischaracterization of the record is further illustrated by its assertion that there is no commercial
WCS service “in any state.” Sirius Opposition at 5. That claim is remarkable, particularly since the
Extension Request demonstrates that BellSouth has deployed commercial service in a number of markets.
See Extension Request at 5-6 n.12 (“in September 2005, BellSouth launched its first non-trial broadband
system utilizing WCS spectrum in Palatka, Florida, a rural, economically-distressed market. BellSouth
then expanded its WCS-based commercial offering to Deland, Florida, another rural market, in January
2006. In each case, BellSouth selected rural communities where interference from terrestrial DARS
repeaters would not be an issue. More recently, as part of its hurricane disaster recovery efforts,
BellSouth launched WCS-based wireless broadband services on a commercial basis in portions of New
Orleans, Louisiana, Gulfport, Mississippi, and Biloxi, Mississippi, in September, November and
December, 2005, respectively.”). In a similar vein, Sirius wrongly asserts that there is “a long-term lack
of interest by the WCS licensees” in utilizing their spectrum. Sirius Opposition at 9. That contention is
belied by the Extension Request, which demonstrates that in addition to BellSouth’s commercial
deployments, WCS licensees including AT&T, Comcast, Verizon and Metricom, Inc. (or their
predecessors in interest) have all deployed facilities in the 2.3 GHz band over the past several years to
trial a variety of services. See Extension Request at 5-6 n.12, 12 n.25. Motorola has confirmed the WCS
licensees’ substantial deployment efforts. Motorola Comments at 2 (“Motorola can attest firsthand to the
vigorous efforts made by several WCS license holders to source products for the WCS spectrum. The
company has responded to multiple inquiries from several of the WCS license holders and has
collaborated with these licensees in both business and technical modeling activities. Furthermore,
Motorola has carefully evaluated the development requirements for equipment operating in this band and
has shared these requirements with license holders.”).
24
     XM Comments at 6; Sirius Opposition at 9.
                                                     11

to the highest and best use for consumers rather than require the deployment of stopgap systems

that merely preserve licenses.25 The Commission should follow its precedents here.

          Curiously, both XM and Sirius assert that the onerous restrictions imposed on WCS out-

of-band emissions (“OOBE”) were known to WCS auction participants, and thus should not

serve as a basis for an extension.26 The Extension Request does not suggest, however, that the

current WCS OOBE restrictions are a basis for extending the substantial service deadline. There

is no doubt that the WCS OOBE limits have proven problematic as potential 2.3 GHz band

25
   Extension Request at 12-15 citing Request of Warren C. Havens for Waiver or Extension of the Five-
Year Construction Requirement for 220 MHz Service Phase II Economic Area and Regional Licensees,
and Request of BizCom USA, Inc. for Waiver and Extension of the Construction Requirements for 220
MHz Phase II Regional and Nationwide Licenses, Memorandum Opinion and Order, 19 FCC Rcd 12994
(WTB 2004) (“Havens”); FCI 900, Inc. Expedited Request for Three-Year Extension of 900 MHz Band
Construction Requirements and Neoworld License Holdings, Inc. Request for Waiver of 900 MHz Band
Construction Requirements and Petition for Declaratory Ruling, Memorandum Opinion and Order, 16
FCC Rcd 11072, 11077 (WTB 2001) (“FCI 900”); Requests by Interactive Video and Data Service
Auction Winners to Waive the March 28, 1997 Construction Deadline, Order, 12 FCC Rcd 3181 (WTB
1997); Requests by Interactive Video and Data Service Auction Winners to Waive the January 18, 1998,
and February 28, 1998, Construction Deadlines, Order, 13 FCC Rcd 756, 758 (WTB 1998) (“IVDS
Extension Proceedings”); Extension of the Five-Year Build-out Period for BTA Authorization Holders in
the Multipoint Distribution Service, Memorandum Opinion and Order, 16 FCC Rcd 12593, 12596 (MMB
2001); Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of
Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and
2500-2690 MHz Bands, Notice of Proposed Rule Making and Memorandum Opinion and Order, 18 FCC
Rcd 6722 (2003) (“MDS Rewrite Proceeding”). XM’s attempts to distinguish this relevant case law are
unavailing. XM Comments at 7-9; see also Sirius Opposition at 14 n.37. For example, XM argues that
the instant extension request is distinct from the IVDS Extension Proceedings and the MDS Rewrite
Proceeding because the establishment of repeater rules would not alter any rules governing the WCS
band itself, or impose new regulatory obligations on WCS licensees. Id. at 7-8. XM’s argument simply
misreads these decisions. In both instances, the Commission extended the deadline because there were
pending rulemakings which would directly affect the licensees’ system planning and implementation. See
Extension Request at 13-15. The pending DARS terrestrial repeater rulemaking directly affects WCS
system planning and implementation, just as the IVDS and MDS proceedings did. Id. XM also tries to
distinguish this extension request from the Havens and FCI 900 decisions on the grounds that WCS
equipment is in fact available today and these existing solutions are technically viable. XM Comments at
9-11. XM’s argument, however, misconstrues these cases. These cases, as well as the other cases cited,
provide that an extension of a construction deadline can serve the public interest by preventing carriers
from being forced to build stopgap networks simply to meet a regulatory deadline. This is precisely the
case here. The WCS Coalition is seeking the extension in order to avoid having to build out networks
designed solely to meet regulatory requirements, rather than serve actual and demonstrable public
demand.
26
     XM Comments at 9; Sirius Opposition at 10-11.
                                                    12

equipment manufacturers have struggled to migrate equipment designed for other bands to WCS

and, just as the Commission predicted when the OOBE limits were adopted, have been forced to

develop new methods and technologies to meet the Commission’s spectral mask.27 Indeed,

members of the WCS community firmly believe that the OOBE restrictions are far more

restrictive than necessary to protect DARS operations and should be loosened to promote the

more efficient and effective use of the WCS spectrum allocation.28 But, the WCS Coalition has

not suggested that relief from the restrictive WCS spectral mask is necessary to permit

deployments to move forward in accordance with their proposed extended construction schedule,

making the WCS spectral mask issue of no relevance here.29

          XM and Sirius further distort the Extension Request when they suggest that the coming

availability of equipment compliant with WiMax profiles based on IEEE 802.16-2005 will not

advance terrestrial deployments because the WCS OOBE mask precludes mobile services in the

band.30 While WCS licensees may not be able to provide mobile services due to the overly

restrictive OOBE mask and the limits of present technology, XM and Sirius ignore that IEEE



27
  Extension Request at 4 n.9 citing Amendment of the Commission’s Rules to Establish Part 27, the
Wireless Communications Service, Report and Order, 12 FCC Rcd 10785, 10843 (1997) (“WCS R&O”).
28
  Indeed, even Sirius has conceded that the WCS OOBE restrictions are inappropriate. See Letter from
Carl R. Frank, Wiley Rein & Fielding LLP, Counsel to Sirius, to Marlene H. Dortch, Secretary, Federal
Communications Commission, IB Docket No. 95-91, WT Docket No. 03-264, File No. 0002240823, DA
05-1662, WT Docket No. 05-256, Attachment, “White Paper: Interference to the SDARS Service from
WCS Transmitters,” at 5 (dated Mar. 29, 2006).
29
  Sirius also ignores the WCS Coalition’s actual argument, when it claims that the WCS licensees blame
the slow pace of development in the band on Congress and on Mexico’s decision to designate the 2.3
GHz band for DARS. See Sirius Opposition at 11-12 n.33. Sirius simply mischaracterizes the Extension
Request in this case, using fleeting references to the history of the band as straw men designed to obscure
the arguments that the WCS Coalition has actually made. See Extension Request at 4-5. Indeed, the
paragraph immediately following the one Sirius cites makes clear that the Extension Request is based
upon “the lack of permanent rules governing operation of DARS terrestrial repeaters” and the
unavailability of necessary equipment. Id. at 5.
30
     XM Comments at 8-9; Sirius Opposition at 10-11.
                                                    13

802.16-2005 supports a variety of non-mobile service offerings.31                   Further, while the

Commission did note almost a decade ago that mobile operations would be difficult in the WCS

spectrum,32 mobility is permitted and WCS licensees are working with equipment manufacturers

to develop technical solutions that would facilitate the deployment of mobile services in the

future.33

          Simply put, the record establishes that the currently available equipment is proprietary

equipment that generally will not support an economically viable offering of advanced wireless

services, including wireless broadband services, to consumers.34 Experience has shown, and the

comments confirm, however, that the wide-spread availability of equipment compliant with

WiMax profiles based on IEEE 802.16-2005 will be able to provide near term and long term

viability for 2.3 GHz deployments due to the numerous advantages offered by that standard.35

As Motorola correctly states, “WiMax technology is widely held to be the most promising

technology for a successful broadband service to consumers” in the WCS spectrum band.36


31
  Moreover, the IEEE 802.16-2005 standard provides licensees with significant benefits over the existing
IEEE 802.16-2004 standard, such as enhanced spectral efficiency, flexible bandwidths, the ability to
support all types of customer premises equipment, scaleable Orthogonal Frequency Division Multiple
Access, and support for improved capabilities such as Multiple-Input Multiple-Output capability. Not
surprisingly, WCS Coalition members have been informed by equipment manufacturers that the
manufacturers do not intend to build equipment that conforms to IEEE 802.16-2004 in the 2.3 GHz band,
but are instead focused on developing IEEE 802.16-2005-compliant equipment.
32
     WCS R&O, 12 FCC Rcd at 10787.
33
   The WCS Coalition notes again, however, that the likely need to set aside guard bands to meet the
mobile spectral mask represents an unnecessary spectral inefficiency that the Commission should re-visit
at the appropriate time. See supra text at 10.
34
   Motorola Comments at 3 (“While some WCS equipment is currently available in the WCS band, it is
either for point-to-point type operations, or is pre-WiMax equipment.”). Existing vendors Soma
Networks Inc. and Navini both have announced that they will be migrating their proprietary products to
802.16-2005-based systems. See, e.g., Press Release, “Navini Networks Announces the Ripwave-MX
Product Line for WiMax 802-16e,” (dated June 28, 2005).
35
     Extension Request at 10 n.22; Motorola Comments at 4; Intel Comments at 2-3.
36
     Motorola Comments at 4.
                                                   14

           The use of standardized equipment (for example, equipment compliant with WiMax

profiles based on IEEE 802.16-2005) has numerous benefits for system operators and consumers

alike. For equipment operators, standardized equipment reduces costs, increases competition

among equipment manufacturers, and provides a greater level of certainty regarding the

continued availability of equipment and the compatibility of equipment from different

providers.37 For consumers, standardized equipment makes nationwide portability a reality,

decreases the costs of customer premises equipment, and reduces impediments to switching

service providers.38 All of these benefits of equipment standardization are, of course, well-

known to the Commission.39

           The record clearly demonstrates, however, that while equipment compliant with WiMax

profiles based on IEEE 802.16-2005 is expected to start becoming available in the not too distant

future, such equipment will not be available in time to permit WCS licensees to deploy networks

that utilize this equipment by July 21, 2007. As Motorola advised the Commission, the WCS 2.3

GHz certification profile:

37
     Id.
38
     Id.
39
   See, e.g., Implementation of Section 304 of the Telecommunications Act of 1996, Second Report and
Order, 18 FCC Rcd 20885, 20887 (2003) (stating that the purpose of Section 629 of the Communications
Act “is to afford consumers the opportunity to purchase navigation devices from sources other than their
cable provider.”). Indeed, the benefits of and the difficulty in producing standardized equipment is well
known to XM and Sirius. In 1997, the Commission required XM and Sirius to develop an interoperable
receiver. See DARS R&O and FNPRM, 12 FCC Rcd 5754 at ¶¶ 103, 106. It took them almost three years
to even reach a joint development agreement to develop a unified standard. See Letter from William
Bailey, Sr. V.P., Regulatory and Govt. Affairs, XM Radio Inc., and Patrick Donnelly, Exec. V.P. and
General Counsel, Sirius Satellite Radio Inc., to Thomas S. Tycz, Chief, Sat. Div., International Bureau,
Federal Communications Commission, at 1 (dated Mar. 14, 2005). By March 14, 2005, the companies
had spent nearly $5,000,000 to fund the joint venture yet interoperable receivers were still not
commercially available. Id. Indeed, XM has reported that an interoperable platform “is several years
away.” David Lieberman, XM’s Chief Foresees a Satellite Revolution, USA TODAY, Sept. 27, 2005
(quoting XM’s CEO as saying that “[t]he companies have worked together on an interoperable platform” .
. . “[b]ut it’s several years away.”). Given their own experiences with developing interoperable
equipment, XM and Sirius have no standing to criticize the WCS licensees’ efforts to support
standardized equipment for the WCS spectrum.
                                                   15

                  . . . is expected to be formally accepted this year. The
                  development and approval of a WiMax profile, which is a direct
                  result of active support by both licensees and vendors within the
                  WiMax Forum, will represent a large step toward the commercial
                  availability of 2.3 GHz standards-based products. After a profile is
                  approved, the next step within the WiMax Forum is
                  interoperability testing, which is necessary before devices can be
                  certified as WiMax compliant. Based on the current plans of the
                  WiMax Forum, interoperability testing for the 2.3 GHz band is not
                  likely to begin for at least one year.40

          In sum, the only way to provide consumers with the recognized benefits of standards-

based wireless broadband and other advanced wireless services is to grant the requested

extension.

 IV.      CONCLUSION

          As shown in the Extension Request, an extension of the WCS substantial service

requirement is warranted because unique factual circumstances outside the WCS licensees’

control render strict application of the Section 27.14(a) substantial service requirement

inequitable, unduly burdensome, and contrary to the public interest.               The majority of the

comments in this proceeding support the Extension Request. Moreover, the only two parties that

oppose the request offer no principled rationale to support their opposition, but they rely instead




40
     Motorola Comments at 5; see also Intel Comments at 3; Navini Comments at 1.
                                           16

on misdirection and mischaracterization.   The Commission should not fall prey to such

regulatory gamesmanship and should grant the requested extension of the WCS substantial

service deadline.

                                                Respectfully submitted,

                                                AT&T INC.
                                                BELLSOUTH CORPORATION
                                                COMCAST CORPORATION
                                                NEXTWAVE BROADBAND INC.
                                                NTELOS, INC.
                                                SPRINT NEXTEL CORPORATION
                                                VERIZON LABORATORIES INC.
                                                WAVETEL NC LICENSE CORPORATION


                                                By: /s/ Paul J. Sinderbrand
                                                        Paul J. Sinderbrand
                                                        Mary N. O’Connor
                                                        J. Wade Lindsay

                                                WILKINSON BARKER KNAUER, LLP
                                                2300 N Street, NW
                                                Suite 700
                                                Washington, DC 20037-1128
                                                202.783.4141

                                                Their Attorneys

June 23, 2006
                                  CERTIFICATE OF SERVICE

       I, Aleksandra Pacholek, hereby certify that I have this 23rd day of June, 2006, caused a

copy of the foregoing Reply Comments of the WCS Coalition to be served by first class United

States mail postage prepaid on:

Marsha J. MacBride                              Peter K. Pitsch
Jane E. Mago                                    Communications Policy Director
National Association of Broadcasters            Intel Corporation
1771 N Street, NW                               1634 I Street, NW, Suite 300
Washington, DC 20036                            Washington, D.C. 20006

Sai Subramanian                                 Steve B. Sharkey
Vice President of Marketing and                 Director, Spectrum and Standards Science
   Product Management                           Kimberly M. Baum
Navini Networks                                 Assistant Director, Spectrum and Standards
2240 Campbell Creek Blvd.                       Science
Suite 110                                       Motorola, Inc.
Richardson, TX 75083                            1350 I Street, NW
                                                Washington, DC 20005

William F. Wallace                              Brigitte L. Adams
P. Kelley Dunne                                 2800 Wisconsin Avenue, NW
Joseph Kochan                                   Suite 208
DigitalBridge Communications, LLC               Washington, DC 20007
P.O. Box 453
Ashburn, VA 20146

Thomas Gutierrez                                Patrick L. Donnelly
Lukas, Nace, Gutierrez & Sachs                  Executive Vice President and General Counsel
1650 Tysons Blvd.                               Sirius Satellite Radio Inc.
Suite 1500                                      1221 Avenue of the Americas
McLean, VA 22102                                New York, NY 10020

Joseph Titlebaum
General Counsel
XM Radio Inc.
1500 Eckington Place, NE
Washington, DC 20002




                                                   \s\ Aleksandra Pacholek

				
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