Subject: [NEXTEL-1] FCC Rubber Stamps - Applications to Assign Wireless Licenses from WorldCom, Inc. to Nextel

From: [email-masked]
Date: Wed, 07 Apr 2004 14:07:17 -0400

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

In the matter of

Applications to Assign Wireless Licenses from WorldCom, Inc.
(Debtor-in-Possession) to Nextel Spectrum Acquisition Corp.

WT Docket No. 03-203

MEMORANDUM OPINION AND ORDER

Adopted:  April 2, 2004 Released:  April 2, 2004

By the Chiefs, Wireless Telecommunications Bureau, Media Bureau:

I. INTRODUCTION

1. We have before us twenty related applications filed August 15, 2003,
from subsidiaries of WorldCom, Inc. (debtor-in-possession)
(collectively, “WorldCom D-I-P”) and Nextel Spectrum Acquisition Corp.
(“Nextel” and, together with WorldCom D-I-P, the “Applicants”) seeking
approval for the assignment from WorldCom D-I-P to Nextel of various
wireless licenses (the “Assignment Applications”).   The licenses
subject to this proposed assignment (“Licenses”) are in the following
services: Multipoint Distribution Service (“MDS”), Multichannel
Multipoint Distribution Service (“MMDS”), Instructional Television Fixed
Services (“ITFS”), Wireless Communications Service (“WCS”), Private
Operational-Fixed Microwave and Point-to-Point Common Carrier Microwave
Service (together, “Fixed Microwave”), Private Land Mobile Radio Service
(“PLMR”), and Cable Television Relay Service (“CARS”).   As discussed
below, we deny the Petitions to Deny filed by Instructional
Telecommunications Foundation, Inc. (“ITF”), Northwest Communications,
Inc. (“NCI”), and, jointly, Red New York E Partnership and Veritas, LLC
(“Red NY/Veritas”) (collectively, “Petitioners”).   Pursuant to our
review under Section 310(d) of the Communications Act of 1934, as
amended (the “Communications Act”), we further conclude that approval of
the Assignment Applications will serve the public interest, convenience,
and necessity.

II. BACKGROUND

A. Assignors

2. The licenses that are subject of the Assignment Applications are held
by WorldCom Broadband Solutions, Inc (“WBS”), a Delaware corporation,
and the following entities, each of which is directly or indirectly
controlled by WorldCom D-I-P, a Georgia corporation: CS Wireless
Systems, Inc. (debtor-in-possession), a Delaware corporation, and
Wireless Video Enterprises, Inc. (debtor-in-possession), a California
corporation (collectively “Assignors”).  The Assignors currently provide
fixed wireless broadband data services to approximately 1,400 small and
medium-sized business customers in 13 markets.   All of the licenses,
including the MDS and MMDS licenses, are operated by the Assignors on a
non-common carrier basis.

3. In July and November 2002, WorldCom, Inc. and substantially all of
its active United States (“U.S.”) subsidiaries filed voluntary petitions
under Chapter 11 of the United States Bankruptcy Code to reorganize
their business and financial structure.  As a result of the bankruptcy
filing, WorldCom filed for Commission approval, inter alia, of the
involuntary pro forma assignment of the wireless licenses held by
Assignors to the Assignors as debtors-in-possession in July and August
of 2002.  The Commission granted these applications.   In June 2003,
WorldCom D-I-P and its subsidiaries (as debtors-in-possession) filed
applications to the Commission seeking authorization to transfer their
licenses and authorizations to the reorganized MCI, Inc. (“MCI”) in
connection with its planned emergence from bankruptcy.   The Commission
placed these Reorganization Applications on Public Notice on July 9,
2003,  and granted these applications in December 2003.   As of the date
of this Order, the transfers to MCI contemplated in the Reorganization
Applications have not been consummated.

B. Assignee

4. Nextel Spectrum Acquisition Corp. (Assignee), a Delaware corporation,
is a wholly owned subsidiary of Nextel Communications, Inc. (“Nextel”),
a Delaware corporation.  Nextel currently provides commercial mobile
radio service (“CMRS”) in some 400 cities in the U.S. serving over
eleven million subscribers and is one of at least six CMRS providers
with a national footprint.   Nextel states that it has invested more
than $7 billion to establish a national digital network to provide a
full range of wireless communications services in competition with other
CMRS providers.  Nextel’s digital CMRS service integrates in a single
mobile handset a digital dispatch service (known as Nextel Direct
Connect ) with interconnected mobile telephone service, Internet access,
short messaging and mobile data service.  By offering this integrated
package of services, Nextel states, it has become a significant
competitor to the established CMRS carriers throughout the U.S.

C. Proposed Transaction

5. On June 26 and 27, 2003, and pursuant to Bankruptcy Court approval,
WorldCom D-I-P conducted an auction to sell certain wireless assets to
the party submitting the highest and best offer.   WorldCom D-I-P would
also convey to the winning bidder its interest in the underlying
licenses, subject to Commission approval of the required assignment
applications.  Nextel submitted the highest and best offer.   On July 8,
2003, WorldCom D-I-P and Nextel entered into an Asset Purchase Agreement
(“Purchase Agreement”) for the sale of substantially all of the assets,
including the rights in the Licenses listed in Schedule 2 of the
Purchase Agreement (“the Designated Licenses”), to Nextel for $144
million in cash and non-cash consideration consisting of a three-year
extension of customer contracts between subsidiaries of WorldCom and
Nextel.   Because WorldCom D-I-P is in the process of reorganizing under
the protection of bankruptcy laws, the Bankruptcy Court has reviewed and
approved the Purchase Agreement, as modified in certain respects.   The
Assignment Applications seek Commission approval to consummate the
transaction described in the Bankruptcy Court-approved Purchase
Agreement.

6. The proposed transaction involves the assignment of various wireless
licenses from WorldCom D-I-P to Nextel, including MDS, MMDS, ITFS, WCS,
CARS, PLMR, and Fixed Microwave licenses in various markets.  In
response to objections raised in the bankruptcy proceeding by various
ITFS and MMDS licensees (“Spectrum Lessors”) who have entered into
excess capacity agreements with WBS or its affiliates, WorldCom and
Nextel amended the Purchase Agreement on July 22, 2003 to modify, among
other things, Sections 7.26 and 7.29 of the Agreement (the
“Modifications”).   The Modifications expanded and clarified the access
rights of certain of the Spectrum Lessors (the “ITFS Lessors”) to
certain equipment and towers used or useful for their operations.  In
exchange for WorldCom and Nextel agreeing to make the Modifications, the
ITFS Lessors agreed to withdraw their objections in the Bankruptcy
Court.  The Bankruptcy Court denied all other objections to the Purchase
Agreement.

7. The Applicants argue that the Commission’s approval of the proposed
transaction is in the public interest and creates no competitive harm.
Although Nextel is still in the process of developing specific business
and technical plans for the use of the Designated Licenses, the
Applicants state that the proposed assignment would provide Nextel with
additional spectrum capacity and flexibility to expand its digital
wireless services and 3G mobile innovations.   In addition, the
Applicants contend that the proposed transaction will enhance consumers’
competitive alternatives by furthering Nextel’s ability to offer a
greater menu of wireless services and thus further the Commission’s
goals of maximizing the efficient use of spectrum and promoting
competition.   The Applicants also argue that the proposed license
assignments raise no competitive issues because the Assignors and the
Assignee currently compete in different product markets.

III. PETITIONS TO DENY

8. On September 25, 2003, the Wireless Telecommunications Bureau
accepted the Assignment Applications for filing and released the Public
Notice establishing the time period for interested parties to file
petitions to deny.   On October 27, 2003, ITF, NCI, and Red NY/Veritas
filed Petitions to Deny.   On November 12, 2003, Nextel and WorldCom
D-I-P filed a Joint Opposition to Petitions to Deny.   On November 17,
2003, ITF, NCI, and Red NY/Veritas filed Replies to the Joint Opposition
to Petitions to Deny.

9. ITF Petition to Deny   In its Petition, ITF claims that WBS refused
to extend a short-term facilities agreement with ITF, forcing ITF’s
licensee, WHR527, to sign off the air on June 29, 2000 and discontinue
its instructional service to schools in the Philadelphia area.   ITF
claims that WBS’s motivation in refusing to extend the short-term
facilities agreement was to gain leverage over ITF in excess capacity
agreement negotiations.   Since June 26, 2001, ITF has been operating
WHR527 under Special Temporary Authority (“STA”) at its then currently
authorized tower site.   On June 18, 2002, ITF submitted an application
with the Commission proposing to relocate WHR527 to a new tower located
nearby.   In response to ITF’s Relocation Application, WorldCom and NCI
filed Petitions to Deny.

10. ITF argues that WorldCom’s refusal to allow ITF to operate in
accordance with its authorization, the filing of its petition to deny
ITF’s Relocation Application, and its alleged insistence that its excess
capacity lessor NCI do likewise, amount to an abuse of process.   ITF
contends that WorldCom’s true purpose was to obstruct and delay ITF’s
ability to operate in Philadelphia in hopes of securing business
advantage.  ITF claims that it has been placed in an untenable position
by WBS’s conduct, being forced to operate under an STA with substandard
facilities because WBS would not allow ITF to operate from its
authorized site alongside other MDS/ITFS facilities while it also
erected roadblocks to ITF’s efforts to relocate to a nearby antenna in
an effort to resume normal operations.   ITF also argues that WorldCom’s
actions are in violation of Section 21.902(b)(1).

11. NCI Petition to Deny   In its Petition, NCI argues that under the
Purchase Agreement, while Nextel will not be leasing spectrum capacity
from NCI, it clearly retains dominion over NCI’s ability to operate MMDS
station WHT644.   Pursuant to an agreement between NCI and WorldCom
(“NCI Agreement”), WorldCom leased spectrum capacity from NCI via NCI’s
MMDS station WHT644 and NCI leased certain transmission equipment (the
“Leased Equipment”) from WorldCom.   In addition, WorldCom utilized the
Paoli Tower pursuant to the Paoli Tower Lease, which allows WorldCom to
have “the exclusive right to broadcast or otherwise transmit from the
Tower all MDS, MMDS, ITFS, or OFS signals except that Lessor shall have
the right to broadcast from the Tower MDS Channel 1” (the “Exclusivity
Clause”).   The Purchase Agreement between WorldCom and Nextel granted
Nextel the right to elect to exclude and not acquire the NCI
Agreement.   Nextel elected not to assume the NCI Agreement, and
WorldCom filed a pleading with the Bankruptcy Court stating that it
intends to reject the NCI Agreement.   Nextel agreed to assume the Paoli
Tower Lease.   Nextel also has agreed to take assignment of the Leased
Equipment.   NCI contends that restrictions on its access to the Leased
Equipment amount to restrictive covenants, giving Nextel the right to
manipulate NCI’s business relationships.

12. NCI argues that because the NCI Agreement and the Paoli Tower Lease
operate as an integral unit, Nextel should not be permitted to acquire
the Paoli Tower Lease and the Lease Equipment while excluding the NCI
Agreement.   In addition, NCI claims that the Exclusivity Clause in the
Paoli Tower Lease and the restrictive covenants in the Purchase
Agreement are both in violation of Section 21.902(b)(1) of the
Commission’s rules.   NCI requests that the Commission deny the
Applications or in the alternative that it should: (1) hold that the
Exclusivity Clause and the restrictive covenants are in violation of
Section 21.902(b)(1) of the Commission’s Rules; (2) not permit Nextel to
block an attempted relocation to the extent that the predicted
interference caused by a move is de minimis; (3) require Nextel to
assume the NCI Agreement along with the Leased Equipment and the Paoli
Tower Lease or require it to amend the Paoli Tower Lease to delete the
Exclusivity Clause and to amend the Purchase Agreement by deletion of
the restrictive covenants.

13. Red NY and Veritas Petition to Deny   In their Petition, Red
NY/Veritas assert that Nextel has decided not to accept the assignment
of the Red NY/Veritas leases and has given no indication that it would
take any steps to enable them to continue to operate at their respective
sites in New York and Boston.   Red NY/Veritas claim that upon the
closing of the assignment transactions, they will lose the ability to
access their equipment and transmission sites, and thus to operate their
stations as now authorized by the Commission.   Red NY/Veritas contend
that this potentially could deprive them, and a number of other
similarly situated licensees, of their licenses, and thus their ability
to compete with Nextel.   Red NY/Veritas also argue that the present
interference rules for MMDS and ITFS make new and changed installations
virtually impossible in congested area such as New York and Boston.  Red
NY/Veritas request that the Commission grant the Assignment Applications
only on the condition that Nextel must make possible the continued
access by them, and by other MMDS licensees similarly situated, to both
equipment and transmission towers or tower sites as necessary to permit
them to continue to provide service from their now-licensed locations.

14. Joint Opposition to Petitions to Deny   In its Joint Opposition,
Nextel and WorldCom  first argue that the Petitions to Deny filed by NCI
and ITF are procedurally defective and must be dismissed because NCI and
ITF failed to serve Nextel with copies of their Petitions as required by
Section 1.939(c) of the Commission’s rules.    The Applicants also
contend that all three of the Petitions should be dismissed for lack of
standing and for failure to make the required showing pursuant to
Section 309(d)(1) of the Communications Act.   Specifically, the
Applicants argue that the Petitions fail to make a prima facie showing
that a grant of the Applications is inconsistent with the public
interest, convenience, and necessity.

15. Regarding the standing issue, the Applicants first argue that the
Petitioners fail to show that they would suffer direct injury as a
result of a grant of the Applications.   The Applicants note that the
Petitions do not relate to any of the licenses to be assigned, but
instead relate to licenses that will continue to be held by
Petitioners.   Furthermore, the Applicants stress that the Petitions
failed to challenge the public interest showing set forth in the
Applications, as well as the qualifications of Nextel to be the licensee
of these stations.  Therefore, the Applicants claim that all the
Petitions must be dismissed for lack of standing and for failure to
satisfy the requirements of Section 309(d)(1) of the Communications Act.

16. Replies to Joint Opposition  In response to the Applicants’
assertion that their Petitions should be dismissed for lack of service
on Nextel, ITF and NCI argue that neither Nextel nor WorldCom suffered
any prejudice as a result of the lack of service.   ITF and NCI contend
that the Commission does not typically sanction parties for failure to
satisfy its procedural requirements where no prejudice befalls the other
party by virtue of the procedural error.   All of the Petitioners also
defend their standing to challenge the proposed transactions in their
Replies.   Specifically, NCI and ITF each argues that its Petition
raises legitimate allegations regarding the Applicants’ stewardship of
their licenses in the context of an assignment application.   ITF also
contends that its Petition raises issues to “vindicate the broad public
interest” and that the Commission has permitted standing on that basis.

17. Red NY/Veritas argue that they are parties in interest because they
would be aggrieved and their interest would be adversely affected by the
loss of the right to operate with their licensed facilities from their
licensed sites.   In particular, Red NY/Veritas claim that they have
standing not because their leases were terminated, but because
assignment of the facilities upon which they have been relying for the
operation of their stations is an “integral part” of the proposed
transaction between WorldCom and Nextel, but the Purchase Agreement does
not contain any provision for Red NY/Veritas to be able to continue to
make use of those facilities in the operation of their stations.
Noting that WorldCom and Nextel have made provisions for ITFS licenses
whose leases were rejected to continue to use equipment and tower
facilities after Nextel assumes WorldCom’s spectrum assets, Red
NY/Veritas argue that although the Turner principle  only applies to
ITFS licenses, the public interest benefit should also allow incumbent
commercial licensees to continue operations after a lease is terminated
due to circumstances beyond their control.

IV. DISCUSSION

A. Service Requirement

18. Pursuant to Section 1.939(c) of the Commission’s Rules, a petitioner
must serve a copy of its petition to deny on the applicant and on all
other interested parties.   We note that NCI and ITF failed to comply
with this requirement because their Petitions to Deny were not served on
Nextel, the Assignee of the proposed applications.  However, we find
that the error was harmless, because Nextel in fact obtained a copy of
the Petitions to Deny in sufficient time to file a timely opposition and
accordingly suffered no prejudice by virtue of the initial procedural
defect.   As noted in the record, counsel for ITF and NCI took immediate
steps to cure the defect, and in addition, counsel for WorldCom provided
copies to Nextel subsequent to receiving an electronic version of the
pleadings.   Because Nextel suffered no prejudice from the failure of
NCI and ITF to comply with our service requirement, we decline to
dismiss the NCI Petition and the ITF Petition on the basis of that
procedural defect.

B. Standing

19. To establish standing to file a petition to deny, Petitioners are
required by Section 309(d)(1) of the Communications Act  to demonstrate
that each is a “party in interest.”   Petitioners must make specific
allegations of fact sufficient to demonstrate that grant of the
challenged Assignment Applications would cause the petitioners to suffer
a direct injury.   They also must establish a causal link by
demonstrating that the injury can be traced to the grant of the
Assignment Applications.   In addition, Petitioners must establish that
it is likely, as opposed to merely speculative, that the alleged injury
would be prevented or redressed if the

Assignment Applications are denied.

20. The Applicants contest the Petitioners’ standing, claiming that the
Petitioners fail to make any showing that they would suffer direct
injury as a result of a grant of the Assignment Applications.
Specifically, the Applicants argue that NCI and Red NY/Veritas’
assertion that they have been affected by WorldCom’s rejection of their
spectrum leases has no merit because the rejection of these spectrum
leases occurred as a result of WorldCom’s bankruptcy reorganization, and
their spectrum leases are not a part of the pending Assignment
Applications.   Because WorldCom could have rejected these Petitioners’
spectrum leases regardless of the existence or outcome of the
WorldCom-Nextel transaction, the Applicants claim that the NCI and Red
NY/Veritas fail to show that they would be harmed by grant of the
Assignment Applications or that denying the Assignment Applications
would provide relief with respect to the issues raised in their
Petitions.    The Applicants also argue that ITF fails to show a nexus
between the issues raised in its Petition and the proposed assignment
and instead merely seeks to re-litigate issues raised in its own
Relocation Application.   In response, NCI and Red NY/Veritas assert
that they have standing because the Purchase Agreement fails to provide
them continued access to the facilities critical to the operation of
their stations.   Specifically, Red NY/Veritas claim that they would be
adversely affected by the assignment of equipment and facilities leases
upon which they rely, and that, they claim, are an integral part of the
overall transaction described in the Assignment Applications.  NCI and
ITF contend that their Petitions raise legitimate allegations regarding
the Applicants’ stewardship of their licenses to vindicate the public
interest.

21. Based on the review of the record, we determine that Petitioners
have failed to establish standing as “parties in interest,” with a
Section 309(d)(1) right to challenge the Applications.   ITF fails to
raise any issues related to the Assignment Applications.  ITF contends
that WorldCom’s refusal to permit ITF to operate station WHR527 in
accordance with its authorization or to relocate is in violation of
Section 21.902(b)(1) of the Commission’s rules.   However, ITF fails to
show a nexus between the alleged violation of Section 21.902 and the
proposed Assignment Applications.  Additionally, ITF fails to provide
sufficient facts establishing that grant of the Assignment Applications
would cause it direct injury.  As noted above, the Commission already
considered and granted ITF’s Relocation Application in a separate
proceeding, resolving the issues raised in the ITF Petition.
Furthermore, Since ITF is now permitted to relocate to a nearby tower as
requested in its Relocation Application, we do not need to address its
allegation that WorldCom is in violation of Section 21.902(b)(1).  We
find no reason to revisit the actions taken in the ITF Relocation Order,
and we accordingly find that the issues raised in the ITF Petition in
this proceeding to be moot.  We therefore dismiss the ITF Petition for
lack of standing and mootness.  Even if we were to address the ITF
Petition on the merits, as discussed below, we would deny it.

22. NCI and Red NY/Veritas argue that the assignment of certain
equipment and site leases will adversely affect them.  It is important
to note, however, that only the assignment of certain spectrum licenses
is before the Commission in the Assignment Applications.  Equipment and
site leases are not part of the Assignment Applications and are not
subject to Commission approval.  Furthermore, as noted above, none of
the spectrum leases to which Petitioners are parties is a part of the
Assignment Applications.  WorldCom’s rejection of Petitioners’ spectrum
leases was approved by the Bankruptcy Court.  The Bankruptcy Court has
also approved WorldCom’s assignment to Nextel of the relevant equipment
and facilities leases.  The Commission will not revisit the terms of the
transactions already reviewed and approved by the Bankruptcy Court in
the absence of a showing that Petitioners will be harmed by approval of
the license assignments under consideration.  Thus, we find that NCI and
Red NY/Veritas have failed to show that they would be directly harmed by
the grant of the Assignment Applications or that denying the
Applications would provide relief with respect to the issues raised in
their Petitions.  We therefore dismiss the NCI and Red NY/Veritas
Petitions for lack of standing.  Even if we were to address them on the
merits, as discussed below, we would deny them.

C. Public Interest Determination in Accordance with Section 310(d)

23. In considering the Assignment Applications, the Commission must
determine, pursuant to Section 310(d) of the Communications Act, whether
the proposed assignment of licenses will serve the public interest,
convenience, and necessity.   The legal standards that govern our public
interest analysis require that we weigh the potential public interest
harms of the proposed transaction against the potential public interest
benefits to ensure that, on balance, the proposed transaction will serve
the public interest.     In applying our public interest test, we must
assess whether the proposed transaction complies with the specific
provisions of the Communications Act, the Commission’s rules, and
federal communications policy.   Our public interest analysis considers
the likely competitive effects of the proposed transaction and whether
such assignments raise significant anti-competitive concern.   In
addition, we consider the efficiencies and other public interest
benefits that are likely to result from the proposed assignments of the
licenses.

24. As a threshold matter, the Commission must determine whether the
parties meet the requisite qualifications to hold and assign licenses
under Section 310(d) of the Act and the Commission’s rules.   As a
general rule, the Commission does not re-evaluate the qualifications of
assignors unless issues related to basic qualifications have been
designated for hearing by the Commission or have been sufficiently
raised in petitions to warrant the designation of a hearing.   On the
other hand, Section 310(d) requires the Commission to consider whether
the proposed assignee is qualified to hold Commission licenses.

25. Based on the review of the record, we find that the Petitioners fail
to raise issues with respect to the basic qualifications of WorldCom
D-I-P and its subsidiaries as Assignors.  ITF challenges WorldCom’s
qualifications by claiming that WorldCom’s refusal to allow ITF to
operate from its authorized site after the termination of the parties’
lease and filing of its petition to deny ITF’s application to relocate
amount to an abuse of process.   In particular, ITF states that
WorldCom’s opposition to ITF’s Relocation Application was filed in bad
faith to obstruct and delay ITF’s ability to operate.   We find nothing
to suggest that WorldCom’s pleading violated the Commission’s general
practice rules governing pleadings filed in opposition to a pending
application.   In the absence of a demonstrable showing of abuse of the
Commission’s process,  we are not persuaded by ITF’s allegation on this
issue.

26. We also find that Nextel has the requisite character qualifications
to take assignment of the Designated Licenses.  When determining whether
an assignee has the requisite character qualifications to be a
Commission licensee, the Commission will review allegations of
misconduct directly before it, as well as conduct that takes place
outside our jurisdiction.   Because the Wireless Telecommunications
Bureau has found Nextel to be qualified to acquire licenses in prior
proceedings,  and the Petitioners provide no evidence that Nextel has
made any misrepresentations or acted with a lack of candor in any of its
proceedings before the Commission, or has a pattern of willful
violations of the Communications Act or the Commission’s rules,  we find
no reason to conclude otherwise here.

27. We note that the Petitioners implicitly challenge Nextel’s
qualifications by questioning Nextel’s motives and intentions behind the
rejection of certain lease agreements with the Petitioners.  In its
Petition, for example, NCI claims that certain terms of the proposed
Purchase Agreement are in violation of Section 21.902(b)(1) because they
may restrict NCI’s access to equipment and the broadcast location in
order to give Nextel leverage in its negotiations with NCI.   We believe
that this allegation is speculative at this point.  NCI has not
established that it is unable to reach an agreement with Nextel
regarding access to the leased equipment and the tower site.  In
addition, were we to address the NCI Petition on the merits, we would
find that NCI’s argument that the harmful interference rules under
Section 74.903(a)(2)(i) would prevent NCI from finding any relocation
site without violating the rules to be premature and speculative.

28. Similarly, we would conclude that allegations raised in the Red
NY/Veritas Petitions do not warrant designation of a hearing or denial
of the Assignment Applications.  In their Petitions, Red NY/Veritas
claim that WorldCom’s rejection of the spectrum leases might harm their
own private interests, because they will be unable to operate without
access to the equipment being sold to Nextel and the tower site lease
being assigned to Nextel.   However, as stated above, these private
contractual disputes have already been reviewed by the Bankruptcy Court,
and we will not be reconsider these disputes in this proceeding for the
reasons given above.  Moreover, we also would find that the allegations
of harm made by Red NY/Veritas are premature and speculative at this
time.  Petitioners have not presented evidence that they have tried and
failed to secure co-located tower space or another site in accordance
with the interference rules under Section 21.303.   Red NY/Veritas also
urge the Commission to condition the Assignment Applications by
requiring Nextel to allow them, and other MMDS licensees similarly
situated, continued access to the equipment and tower sites necessary to
provide service from their currently licensed locations.  These
Petitioners claim that the protections given to ITFS licensees under
Turner should be extended to commercial MMDS licensees.   However, on
its face Turner applies only to ITFS licensees and has the clear goal of
providing additional protection to non-commercial instructional
licensees.  We are not persuaded that this protection should be extended
to commercial licensees.  As commercial licensees, Red NY/Veritas must
be prepared to spend the time and resources necessary to fulfill their
regulatory obligations in compliance with the Commission’s rules,
including obtaining sites for their licensed transmitters.  Based on the
record before us, we find that Nextel is legally, financially,
technically, and otherwise qualified to hold the Designated Licenses.

29. Finally, when evaluating the likely competitive effects and public
interest benefits of a proposed transaction, the Commission performs a
case-by-case review of the transaction in order to fulfill the
Commission’s statutory mandate to preserve and enhance competition in
relevant market, ensure diversity of license holdings, accelerate
private sector deployment of advanced services, and manage the spectrum
in the public interest.   The Applicants allege that this transaction is
in the public interest because it will allow underutilized spectrum to
be put into service and will “enhance consumers’ competitive
alternatives by furthering Nextel’s ability to offer a greater menu of
the wireless services consumers are demanding in today’s
marketplace.”    The applicants also state that this transaction will
provide Nextel with the “spectrum capacity and flexibility to expand its
digital wireless services and 3G mobile innovations.”   Furthermore,
Petitioners did not dispute these proffered public interest benefits.
Neither the record nor our own analysis leads to the conclusion that
there is likely to be substantial competitive harm as a result of this
transaction.   Therefore, we find that the potential benefits outweigh
any potential harm and that the proposed transaction is in the public
interest.

V. CONCLUSION

30. Accordingly, IT IS ORDERED that, pursuant to the authority granted
in Sections 4(i), 309(d)(1), and 309(j) of the Communications Act of
1934, as amended, 47 U.S.C. §§ 154(i), 309(d)(1), 309(j) and Sections
0.331 and1.2108 of the Commission’s Rules, 47 C.F.R. §§ 0.331 and
1.2108, the Assignment Applications, dated August 15, 2003, the
respective Petitions to Deny filed on October 27, 2003 by Instructional
Telecommunications Foundation, Inc., Northwest Communications, Inc.,
and, jointly, Red New York E Partnership and Veritas LLC are DENIED.

31. IT IS FURTHER ORDERED that, pursuant to the authority granted in
Sections 4(i), 309(j), and 310(d) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 309(j), 310(d), the Assignment
Applications, dated August 15, 2003, seeking approval for the assignment
of certain wireless licenses from WorldCom D-I-P to Nextel are GRANTED.
32. These actions are taken under delegated authority pursuant to
Sections 0.61, 0.131, 0.283, and 0.331 of the Commission’s Rules, 47
C.F.R. §§ 0.61, 0.131, 0.283, 0.331.

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-945A1.doc

     FEDERAL COMMUNICATIONS COMMISSION

     John B. Muleta, Chief          Wireless Telecommunications Bureau

     W. Kenneth Ferree, Chief         Media Bureau

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