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N.Y. BROADBAND FIRM ASKS FOR ITFS RULE CHANGE

NY3G, a partnership attempting to launch a broadband wireless network in N.Y., is asking the FCC for special consideration as it takes up its report and order Thurs. on revised service rules for ITFS/MMDS spectrum. The group is asking the FCC to include language in the order that will require ITFS providers to surrender spectrum in a few cases where talks between new entrants and incumbents have faltered.

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NY3G won a lottery in 1985 to provide a commercial service using spectrum otherwise utilized by ITSF educational interests in the F-Group channels. The company has been in a longstanding dispute over access with the Diocese of Brooklyn, which occupies the spectrum. Officials with NY3G told us Wed. the problem they face is unique to N.Y. and a few other large cities, including Dallas, where ITFS operators and other market entrants haven’t been able to work out settlements to clear spectrum despite pressure from the FCC.

“We've been trying to get into service since 1985 and have been pretty well frustrated,” said NY3G Pres. John Hearne. “We're hoping the FCC understands our situation and addresses it.” The group recently met with the legal advisors for 4 commissioners, as well as speaking with Comr. Abernathy and Wireless Bureau Chief John Muleta at the recent Wireless Communications Assn. show. “The reception suggested that they haven’t focused on this issue. They did appreciate the potential for it to be a significant problem,” Bruce Jacobs, counsel to the group said of recent meetings at the FCC.

“Until now, NY3G’s plans have been blocked by the inefficiency and intransigence of the grandfathered licensee,” the company said in a recent ex parte filing at the FCC: “Despite NY3G’s best efforts to negotiate a more efficient arrangement, including paying all costs to move the ITFS licensee to a higher transmit location, the ITFS licensee persists in using the F-Group channels as mere repeaters… serving fewer than 100 receive sites from two low-elevation transmit sites with programming that could easily be delivered from a single higher elevation site using a single compressed channel.”

The company said new rules for ITFS must address these concerns. NY3G also said the FCC should consider such remedies as limiting the grandfathering of ITFS licensees in major markets to 4 channels or shifting grandfathered ITFS licensees to other channels.

The Brooklyn Diocese didn’t directly reply to the most recent filing, but has repeatedly made the case it should be allowed to keep the spectrum it uses for educational purposes. “Partial revocation does as much violence to an ITFS station’s spectrum rights as complete revocation,” the diocese said in a recent filing. Last year, the diocese said its annual cost just to operate its ITFS system, in its current form, exceeds $1.25 million.