DA 06-1261

Brigitte L. Adams, Esq.

2800 Wisconsin Ave., N.W. #208

Washington, D.C. 20007

Re: 800 MHz SMR Station WPLM218

Dear Ms. Adams:

Before us is a Petition for Reconsideration (Petition) filed by
Cellutech on October 28, 2005.[^1] The Petition seeks reconsideration of
a decision by the Wireless Telecommunications Bureau's Mobility Division
(Division) to deny Cellutech's request for a waiver of the construction
requirements for its former 800 MHz Specialized Mobile Radio (SMR)
license WPLM218, the A block 800 MHz SMR license in the American Samoa
Economic Area (EA).[^2] For the reasons stated below, the Petition is
denied.

Under Sections 90.685(b) and 90.685(c) of the Commission's rules then in
effect during the period of time Cellutech held the subject license,
Cellutech was required to (1) operate facilities to cover one-third of
the EA's population and (2) construct at least fifty percent of the
total channels in at least one location of the EA within three years of
initial license grant.[^3] Further, under Section 90.685(b) of the
Commission's rules, Cellutech was required to operate facilities to
cover two-thirds of the EA's population within five years of initial
license grant.[^4] Cellutech's license was granted March 10, 1998, thus
its three and five-year construction deadlines were March 10, 2001, and
March 10, 2003, respectively.

On March 17, 2005---over four years after its three-year construction
deadline and two years after its five-year construction
deadline---Cellutech filed a request for waiver of the five-year
construction deadline.[^5] In its Waiver Request, Cellutech did not
address its failure to meet the three-year construction deadline.
Instead, Cellutech argued that its five-year construction requirement
should be waived because American Samoa is geographically remote and
communications between Cellutech's Washington, D.C. office and American
Samoa had been "difficult."[^6] Cellutech also claimed that its failure
to construct should be excused because it faced weather and technical
difficulties. In addition, Cellutech argued that its five-year
construction requirement should be waived because its business plan was
"affected" and because it had delays in funding.[^7] In the *Waiver
Denial Letter*, the Division found that Cellutech's license terminated
automatically on March 10, 2001, because Cellutech failed to satisfy its
construction requirements and did not timely file a request for an
extension of time to meet those requirements.[^8] The Division also
found that even if Cellutech had timely sought an extension of time to
meet its construction requirements, Cellutech failed to demonstrate how
the company met the waiver standard set forth in Section 1.925 of the
Commission's rules.[^9]

Under Sections 1.946(c) and 1.955(a)(2) of the Commission's rules, an
800 MHz SMR license will terminate automatically as of the construction
deadline if the licensee fails to meet the requirements of Section
90.685, unless the Commission grants it an extension of time to
construct or waives the construction requirements.[^10] An extension of
time to complete construction may be granted, pursuant to Section
1.946(e) of the Commission's rules, if the licensee shows that the
failure to complete construction is due to causes beyond its
control.[^11] Waiver may be granted, pursuant to Section 1.925 of the
Commission's rules, if the licensee establishes either that: (1) the
underlying purpose of the rule would not be served or would be
frustrated by application to the instant case, and that grant of the
waiver would be in the public interest; or (2) where the petitioner
establishes unique or unusual factual circumstances, that application of
the rule would be inequitable, unduly burdensome, or contrary to the
public interest, or the applicant has no reasonable alternative.[^12]

In its Petition, Cellutech argues that the Division should reconsider
its denial of Cellutech's Waiver Request, citing the unique challenges
of American Samoa and asserting that the area requires the "development
of unique technology for a viable SMR system."[^13] Cellutech claims
that "\[o\]nce the technology is perfected to overcome the
topographical, environmental and population challenges, construction and
implementation of the [entire]{.underline} system will rapidly
follow."[^14] Cellutech urges the Division to find that its efforts to
deploy a system in American Samoa constitute "an adequate level of
construction to permit the license to remain viable."[^15] We disagree.

The purpose of the Commission's construction requirements is to ensure
efficient spectrum utilization and rapid service to the public.[^16]
Cellutech's inordinate delay and unspecified construction plans are not
consistent with this policy. Furthermore, Cellutech has not shown that,
in light of unique or unusual circumstances, the construction
requirements were inequitable, unduly burdensome, or contrary to the
public interest, or that Cellutech had no reasonable alternative.

Cellutech concedes that it failed to meet its three-year construction
deadline because it decided that an "incremental build-out plan" was
impractical.[^17] Cellutech states that because of its "inattention and
lack of knowledge," it did not file a timely request for an extension of
time to construct for either its three or five-year construction
deadlines, having "inadvertently overlooked its regulatory
obligations."[^18] It is well established that licensees are required to
be familiar with the Commission's rules,[^19] and that they are
responsible for compliance with those rules.[^20] In this regard, the
Commission's rules specify the construction requirements for 800 MHz SMR
licensees, such as Cellutech.[^21] The Commission's rules also specify
the requirements for requesting an extension of time to construct,[^22]
and the consequences for failure of a licensee to meet its construction
obligations.[^23]

In view of the foregoing, we find no basis to disturb the Division's
determination that Cellutech failed to satisfy its three and five-year
construction requirements and that it failed to justify a waiver of the
deadlines for filing a request for extension of time to meet its
construction obligations. Accordingly, we affirm our determination that
Cellutech's license terminated automatically on March 10, 2001, and
accordingly deny its Petition for Reconsideration. This action is taken
pursuant to delegated authority by Section 4(i) of the Communications
Act, as amended, 47 C.F.R. § 154(i), and by Sections 0.131, 0.331 of the
Commission rules, 47 C.F.R. §§ 0.131, 0.331.

Sincerely,

Roger S. Noel

Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration filed by Cellutech on October 28,
    2005 (Petition).

[^2]: *See* Letter dated September 30, 2005, from Thomas Derenge, Deputy
    Chief, Mobility Division, to Mia Lovink, Cellutech, Call Sign
    WPLM218 (*Waiver Denial Letter*).

[^3]: 47 C.F.R. § 90.685(b) and (c).

[^4]: 47 C.F.R. § 90.685(b). Effective February 14, 2005 (nearly two
    years after Cellutech's five-year deadline), A--C block SMR
    licensees were provided the option of providing "substantial
    service" within five years of initial license grant. *See*
    Facilitating the Provision of Spectrum-Based Services to Rural Areas
    and Promoting Opportunities for Rural Telephone Companies To Provide
    Spectrum-Based Services, WT Docket No. 02-381, 2000 Biennial
    Regulatory Review Spectrum Aggregation Limits for Commercial Mobile
    Radio Services, WT Docket No. 01-14, Increasing Flexibility to
    Promote Access to and the Efficient and Intensive Use of Spectrum
    and the Widespread Deployment of Wireless Services, and to
    Facilitate Capital Formation, WT Docket No. 03-202, *Report and
    Order and Further Notice of Proposed Rule Making*, 19 FCC Rcd 19078
    (2004).

[^5]: *See* File No. 0002090258 (Waiver Request).

[^6]: *Id*.

[^7]: *Id*.

[^8]: *See* *Waiver Denial Letter* at 2.

[^9]: *Id*.

[^10]: 47 C.F.R. §§ 1.946(c), 1.955(a)(2), 90.685.

[^11]: 47 C.F.R. § 1.946(e).

[^12]: 47 C.F.R. § 1.925. Alternatively, pursuant to section 1.3, the
    Commission may waive its rules if there is "good cause" to do so. 47
    C.F.R. § 1.3.

[^13]: *Petition* at 4.

[^14]: *Id*. at 2.

[^15]: *Id*. at 5.

[^16]: 47 U.S.C. § 309(j).

[^17]: *Id.* at 2.

[^18]: *Id.* at 2 and 5.

[^19]: *See* Instapage Network, Ltd., Notification of Construction and
    Request for Waiver of Narrowband PCS Station KNKV222, *Order on
    Reconsideration*, 17 FCC Rcd 19083, 19091 (WTB 2002) (licensees
    "have an obligation to be aware of the Commission\'s rules")
    (*Instapage*); North Eastern Massachusetts Law Enforcement Council,
    *Order*, 16 FCC Rcd 12,474, 12476 (WTB, PSPWD 2001) (applicants must
    stay apprised of the FCC's filing requirements and other rules).
    *See also* 47 C.F.R. § 0.406 ("Persons having business with the
    Commission should familiarize themselves with those portions of its
    rules and regulations pertinent to such business.")

[^20]: *See* *Instapage*, 17 FCC Rcd at 19091 (licensees are responsible
    for their compliance with the Commission\'s rules); C&W Systems,
    LTD., *Order*, 16 FCC Rcd 2913, 2916 (WTB, PSPWD 2001) (ignorance of
    the Commission's Rules does not excuse noncompliance); Supercom,
    Inc., *Memorandum Opinion and Order*, 15 FCC Rcd 4604, 4607 (WTB,
    CWD 2000) (same).

[^21]: 47 C.F.R. § 90.685 (construction requirements for 800 MHz SMR
    licensees).

[^22]: 47 C.F.R. § 1.946(e).

[^23]: Section 1.946(c) states that "\[i\]f a licensee fails . . . to
    meet its coverage . . . obligations by the expiration of its
    coverage period, its authorization terminates automatically, without
    specific Commission action, on the date the construction or coverage
    period expires." 47 C.F.R. § 1.946(c).