Withdrawal of All Pleadings (Sep 09, 2004)

0090-EX-PL-2004 Text Documents

Educational Broadcasting Corporation

2004-09-10ELS_67270

RJGLaAw LLC B401 Ramsey Avenue SiLver Srrinse, MD 20910 Evan D. Cars, Esq. TeEL.. (3O01) 589—2999 E—MmaiL Fax: (301) S8O—2644 . Ext. 106 ecarb@riglawlic.com September 9, 2004 VIA COURIER Ms. Marlene H. Dortch, Secretary Federal Communications Commission The Portals 445 12" Street, SW Washington, DC 20554 Re: Hispanic Information and Telecommunications Network, Inc. FRN: 0006—6203—48 Experimental Application ofEducational Broadcasting Corporation File No40I0§—EX—PL—2004 (Call Sign WD2XJG) Joint est for Wi All Pleadings Dear Ms. Dortch: On behaif ofHispanic Information and Telecommunications Network, Inc. ("HITN") there is enclosed herewith an original and three copies of ajointrequest by HITN and Educational Broadcasting Corporation ("EBC") for the withdrawal ofall adversarial pleadings regarding the above—referenced EBC experimental application. Therein, the parties also urge the Commission to expeditiously grant the above referenced application. Please return a date stamped copy to the courier delivcring this filing. Please direct all questions regarding this matter to the undersigned counsel. ?:S /m-é Evan D. Carb Enclosures cc: Anthony Serafini (via Email) James Burtle (via Email) Barbara K. Gardner (via US Mail)

Before the FEDERAL COMMUNICATIONS COMMISSION Washington DC 20554 In the Matter of: ) ) EDUCATIONAL BROADCASTING ) CORPORATION ) File No, 0090—EX—PL—2004 . ) Call Sign WD2XJG Request for Part 5 Experimental Authority ) Regarding the Operation ofITFS Station WHR828 ) on the C4 Channel at New York, NY ) To: Chief, Experimental Licensing Branch, Office ofEngineering and Technology JOINT REQUEST FOR WITHDRAWAL OF ALL PLEADINGS Educational Broadcasting Corporation ("EBC") and Hispanic Information and Telecommunications Network, Inc. ("HITN"), by their attorneys, hereby inform the Commission that they havereached a private contractual resolution to their dispute regarding the operation and coordination of their respective ITFS facilities and therefore are jointly requesting the withdrawal of all adversarial pleadings filed regarding EBC‘s above—referenced request for experimental authority in conjunction with its operation of its C4 Channel ITFS station WHR828 at New York, New York. EBC‘s request for experimental authority was filed on May 4, 2004. Thereafter, oh June 10, 2004, HITN filed a Limited Objection and Request for Conditions On the Requested Experimental Authorization. EBC filed an Opposition to HITN Limited Objection and Request for Conditions on June 16, 2004. In its limited objection, HTN had voiced concern that certain of EBC‘s proposed experimentaloperations might cause interference to its recently granted C—Group station WQABYIO2 at Cefitml Islip, New York (a grant which had been opposed by EBC). The parties have been working cooperatively to address their concerns regarding coordination of operations ofthe two neighboring stations on the C4 Channel. The parties have agreed, in light ofthe new rule changes in the FCC‘s Report and Order in WT Docket 03—66 regarding a migration ofthis service to

low power mobile operations, to @ous operating parameters and coordinationprocedures contained in the attached Settlement and Cooperation Agreement. Accordingly, the parties, having reached a satisfactory resolution oftheir differences, respectfully withdraw their adversarial pleadings regarding EBC‘s request for experimental authority, andjointly urge the Commission to expeditiously grant EBC its requested experimental authorization. The parties represent that no consideration has been promised or provided in exchange for entering into the attached settlement agreement or for the withdrawal ofpleadings in association with that settlement. Respectfully submitted, HISPANIC INFORMATION AND TELECOMMUNIC NS NETWORK, INC. o Puo wb Evan D. Carb RJGLaw LLC 8401 Ramsey Avenue Silver Spring, MD 20910 (301) 589—2999 Its Attorneys EDUCATIONAL BROADCASTING CORPORATION y i@/a(m% -(.,22&1//& Barbara K. Gardner Leventhal Senter & Lerman PLLC 2000 K Street, NW Suite 600 Washington, DC 20006 (202) 429—8970 Its Attorneys September 9, 2004

SETTLEMENT AND COOPERATION AGREEMENT This Settlement and Cooperation Agreement ("Agreement") is entered into as of the 9 day of September, 2004, by and between Educational Broadcasting Corporation ("EBC") and the Hispanic Information and Telecommunications Network, Inc. ("HITN®‘) (EBC and HIFTN are hereinafter collectively referred to as the "Parties," or individually as "Party"). RECITALS EBC is the licensee of an Instructional Television Fixed Service ("TTFS®") Channel C4 station, call sign WHRR828, at New York, New York, and is also the applicant for a new experimental license on the same channel, call sign WD2XJG, at New York, New York HIFN has opposed EBC‘s experimental application. HITN has been granted an FCC authorization for a new ITFS station, call sign WQABIO2, on Channels C1, C2, C3 and C4 at Central Islip, New York. BRBC has asked the FCC to rescind the grant. Each Party wishes to provide interference—free video and to implement facilities that will allow it to provide two—way cellularized Internet, data, telephony and other communication services over its facilities within its FCC authorized service area. The Parties desire to resolve their differences and to set forth mutual interference and operating parameters between them that will govern their future operations and FCC applications. Now, therefore, HITN and EBC agree as follows: AGREEMENT 1. Withdrawal of Objections. | a. HITN Consent to EBC Experimental Application. HITN shall, simultaneous with the execution of this Agreement, file a letter with the FCC withdrawing its June 10, 2004 Limited Objection and Request for Conditions with respect to EBC‘s experimental application (File No. 0090—EX—PL—2004, call sign WD2XJG), and affirmatively supporting immediate grant of that application. HITN shall fully cooperate and comply with any further request by EBC or the FCC in connection with the prosecution ofthis application. b. EBC Consent to HITN‘s Central Islip Application. EBC shall, simultaneous with the execution of this Agreement, file a letter with the FCC withdrawing its May 4, 2004 Informal Objection and its May 10, 2004 Motion to Rescind Grant regarding HITN‘s application for a new ITFS station on the C—Group Channels at Central Islip, New York (File No. BPIF— 19951016BL), and affirmatively supporting the grant of that application. EBC shall fully cooperate and comply with any further request by HITN or the FCC in connection with the prosecution ofthis applieation.

2. EBC License Correction. HIFN acknowledges that EBC applied for, and operates WHR&828 with, a dual—cardioid directional antenna system (Andrew Model HMD12VC, vertically polarized and oriented at 116° True, and Andrew Model HMD12HC, horizontally polarized and oriented at 296° True). However, EBC‘s license for WHRS828 reflects a single horizontally polarized anterna. HITN will not oppose EBC‘s efforts to have the FCC correct the WHR828 license, and at RBC‘s request will affirmatively support such efforts. 3. Mutual Consents to Future High Power Modifications. a. In cases where modifications to the WHR828 high power facilities would result in signal levels at the WQABOIO2 Geographic Service Area ("GSA‘") border or base station antenna heights in excess of the limits allowed for LBS and UBS facilities by the Commission‘s rules adopted in the Report and Order released July 29, 2004 in WT Docket No. 03-66etal (FCC 04— 135), as they may be modified from time to time in the future (the "Commisgic 4 HITN shall provide EBC with any requested consent or support for such modificationthat d not increase WHR828 signal levels at the WQABIO2 GSA boundary or at any points witht WQABI02 GSA above their current levels (i.c., utilizing the dual cardioid anternas: in Section 2 above). b. In cases where modifications to the WQABI02 Channel C4 high power fll:lhh&i would result in signal levels at the WHR828 GSA border or base station antermgah R excess of the limits allowed for LBS and UBS facilities by the Commission‘s Ry| provide HITN with any requested consent or support for suchmodification that does niot figrease WQABIO2 signal levels at the WHR828 GSA boundary or at any points withinthe WHES28 GSA above the levels predicted to occur from the currently authorized WQABIO02 facilities. c. The Parties acknowledge that the design and operation of systems using their channels must be done in a coordinated manner and may require mutually sharing system operating configurations along with the provision of mutual consents. The Parties hereby agree to share system data for the mutually efficient coordination ofthe stations and to comply with the requirements of the Commission‘s Rules in the preparation for any modifications to their stations. » 4. Mutual Consents to Future Low Power Operations. The Parties desire to implement facilities that will allow them to provide Internet, data, telephony and other one— and two—way low—power cellularized digital communications services in their respective markets using their channels. As a result, either Party may propose deployment of boosters, repeaters, response station hubs, cellularization and sectorization of transmission sites, activation of response stations, and/or any other modifications necessary to provide such services using their channels. The Parties acknowledge that the design and operation of such systems using their channels must be done in a coordinated manner and may require mutually sharing system operating configurations along with the provision of mutual consents. The Parties hereby agree to share system data for the mutually efficient coordination of the stations as described in Section 3 above. Each Party agrees to provide the other with any requested consent to, or support for, a proposed application for low power operations that conforms to the Commission‘s rules for LBS and UBS facilities in effect at the time. In addition, in cases where signal levels or antenna heights in excess of those allowed for LBS and UBS by the Commission‘s rules in effect at the

time may result from either Party‘s proposed low power operations, the other Party‘s consent or gupport shall be provided if the proposal does not create predicted signal levels at any location within the consenting Party‘s GSA that exceed current levels at that particular locatlon. The term "curmrent levels" means, in the case of EBC, actual levels resulting from WHER transmissions using its current dual cardioid antennas, and in the case of HITN, levels predicted to result from the currently authorized WQABIO02 facilities. 5. Authority; Absence of Conflicting Agreements. Each Party is duly organized in the jurisdiction of its organization or incorporation, has full power and authority to enter into this Agreement and to carry out all of the transactions contemplated hereby, and has taken all action necessary on its part to authorize the execution, delivery and performance of this Agreement. Bach Party represents that its execution, delivery and performance of this Agreement do not and will not require the consent of any third party (including any lessee of that Party‘s excess spectrum capacity), and do not and will not conflict with any agreement to which that:P subject, including any excess capacity lease. Each Party further represents that signing on behalf of the Party has been authorized to do so, and that upon ex c dehva'y, this Agreement will constitute a valid and binding agreement of that Party, enformble in accordance with its terms. 6. Remedies. Each Party acknowledges that the other would be irreparably harmed by a breach hereof and that it would be difficult to estimate damages resulting from such a breach. Consequently, the non—breaching Party shall provide notice of breach in writing and afford the breaching party a period ofthirty days in which to cure such breach. If the breaching Party fails to cure the breach within the thirty—day period, the non—breaching party shall be entitled to seek injunctive or other equitable relief to prevent a breach or continued breach ofthis Agreement and to secure the enforcement of this Agreement, without foregoing any legal relief which the non— breaching Party may be entitled to pursue. Furthermore, if either Party breaches its obligations under this Agreement, then the non—breaching Party‘s consent to any application filed by the other Party shall be rendered null and void. The non—breaching Party (or its designee) also shall be able to object to the applications of the breaching Party that interfere with the non—breaching Party‘s ITFS channel[s]. If a Party experiences interference to its GSA that is not in accordance with this Agreement, or that is inconsistent with this Agreement, from the other Party‘s station, then the interfering Party shall reduce the interference to levels that are consistent with this Agreement. 7. ComplHtance with Laws. Each Party shall observe and comply with all present and future laws, ordinances, orders, rules, and regulations of all governmental or other agencies, departments, authorities, boards, or commissions having jurisdiction over or related to this Agreement. 8. Notices. Any notice required to be given by any Party to the other Party shall be in writing and shall be considered to have been duly given when personally delivered, sent by facsimile with a confirmation of receipt, or sent by certified mail or a reputable overnight delivery firm and actually delivered or delivery is refused, and addressed as follows:

If to EBC: Joshua C. Nathan, Esq. Thirteen/WNET New York 450 West 33 Street New York, NY 10001—2605 with a copy to: Barbara K. Garduner, Esq. Leventhal, Senter & Lerman PLLC 2000 K Street, NW Suite 600 Washington, DC 20006 Ifto HIIN: Jose Luis Rodriguez, President Hispanic Information and Telecommunications Network, Inc. 449 Broadway, 3 Floor New York, NY 10013 with a copy to: Rudolph J. Geist, Esq. RJGLaw LLC 8401 Ramsey Avenue Silver Spring, MD 20910 Miscellaneouns. A. Further Action. From time to time after the date of execution hereof, the Parties shall take such further action and execute such further documents, assurances and certificates as either Party may reasonably request of the other in order to effectuate the purposes hereof. In addition, each Party agrees that it will not take any action that would adversely affect the rights granted by it to the other Party hereunder. Benefit and Assignment. This Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective legal representatives, successors and permitted assigns. If a Party sells, assigns, transfers, conveys or relinquishes cantrol of a station that is subject to this Agreement, such Party shall obligate the successor to assume the rights and obligations of the Party and the successor shall be deemed a Party hereto, in which event notice of such assignment or transfer shall be provided to the other Party. This Agreement shall not (1) confer on any person other than the Parties hereto or their respective legal representatives, successors or assigns, any rights, remedies, obligations or

liabilities under or by reason of this Agreement; or (2) constitute the Parties hereto as partners or participants in ajoint venture. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State ofNew York, without regard to the pnnclples of conflict oflaws. Entire Agreement. This Agreement represents the entire Agreement between the Parties with respect to the subject matter hereof, superseding all previous oral or written communications, representations or agreements. This Agreement may be modified only by a duly authorized and executed writing signed by both Parties. Payment of Expenses. Each Party shall pay its own expenses incident to the preparation and carrying out of this Agreement, including all counsel fees and expenses. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same Agreement. Invalid Provisions. Ifany provision ofthis Agreement shall be held illegal, invalid, or unenforceable under any present or future laws, such provision shall be fully scvcmbleandthmAgwunmtshafl,ioflwcxtmfipomblemdmmomdeymgns intent, be construed and enforced as if such illegal, invalid, or tfaoite provision had never comprised a part hereof, andthemmmmngpmmomhereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision. In witness whereof, the Parties have executed this Agreement effective as ofSeptember 9, 2004. EDUCATION CASTING CORPORATION ,f/, enm) Title? HISPANIC INFORMATION AND TELECOMMUNICATIONS NETWORK, INC. By: Title: 201940:v.4

liabilities under or by reason of this Agreement; or (2) constitute the Parties bereto as partners or participants in a joint venture. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State ofNew York, without regard to the principles ofconflict of laws. Entire Agreement. This Agreement represents the entire Agreement between the Parties with respect to the subject matter hereof, superseding all previous oral or written communications, representations or agreements. This Agreement may be modified ounly by a duly authorized and executed writing signed by both Parties. Payment of Expenses. Each Party shall pay its own expenses incident to the preparation and carrying out of this Agreement, including all counsel fees and expenacs. F. Counterparts, This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same Agreement. Invalid Provislons. Ifany provision ofthis Agreement shall be beld iilegal, invalid, or unesforceable under any present or future laws, such provisions# ‘be fually severable and this Agreement shall, to the extent possible and withoutéwmyingits intent, be construcd and enforced as if such illegal, invalid, or unenforcésble provision bad never comprised a part hereof, and the remaining provisionsher shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision. In witness whereof, the Parties have executed this Agreement effective as of September 9, 2004. EDUCATIONAL BROADCASTING CORPORATION By: Title: HISPANIC INFORMA TIQDmtN®B.L[ELECOMMUNICATIONS NETWORK, INC. 20194f:v4


Document Created: 2004-09-10 14:07:05
Document Modified: 2004-09-10 14:07:05
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