Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File No. 0000226552          |
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| Cingular Interactive, L.P.       | ** |                              |
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| Showing of Substantial Service   | *  |                              |
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| Section 90.665(c)                |    |                              |
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**ORDER**

**Adopted: October 26, 2001 Released: October 26, 2001**

By the Deputy Chief, Wireless Telecommunications Bureau:

**I. INTRODUCTION**

1.  This Order addresses the Notification of Construction filed by
    Cingular Interactive, L.P.,[^1] pursuant to section 90.665(c) of the
    Commission's rules, 47 C.F.R. § 90.665(c),[^2] with respect to
    licenses it holds in the 900 MHz Specialized Mobile Radio (SMR)
    service. In that filing, Cingular Interactive contends that it is
    providing "substantial service" in its licensed markets in
    compliance with the Commission's construction requirements. Cingular
    Interactive states that its 900 MHz SMR system operates as an
    integrated, nationwide network, and that, due to the nationwide
    nature of its system, it is appropriate to review its substantial
    service showing in the aggregate rather than on a license-by-license
    basis. Cingular Interactive states that, at a minimum, the system
    will provide coverage to at least 30 percent of the population in
    each of its licensed markets by its construction deadline. We
    conclude that Cingular Interactive's Notification does not meet the
    requirement of our rules, both because we disagree with Cingular
    Interactive's interpretation of our rule and because Cingular
    Interactive's showing is predicated on actions yet to be taken.
    Because, however, we wish to remove uncertainty regarding our
    evaluation of the specific showings provided by Cingular Interactive
    and to provide guidance for other providers regarding the meaning of
    "substantial service" for this service, we issue, on our own motion,
    the following declaratory ruling.[^3] As discussed below, we
    conclude that Cingular Interactive will be providing substantial
    service in each of its licensed market areas if it achieves, by the
    applicable construction deadline,[^4] the level of construction
    specified herein.

**II. BACKGROUND**

2.  Cingular Interactive currently holds 85 licenses in the 900 MHz SMR
    band in 49 MTAs.[^5] Thirty-nine of these licenses, in 27 MTAs, are
    at issue here.[^6] Section 90.665(c) of the Commission's rules
    provides that each MTA-based 900 MHz SMR licensee must construct and
    put into operation a sufficient number of base stations for each
    license to provide coverage to at least one-third of the population
    of that MTA within three years of the original license grant and
    two-thirds of the population within five years. In the alternative,
    a licensee may elect to demonstrate that it is providing substantial
    service to the population of the MTA five years from original
    license grant.

3.  In an August 17, 1999 filing, Cingular Interactive elected to
    demonstrate substantial service with respect to 39 of the 900 MHz
    SMR licenses it held at that time.[^7] On September 30, 1999,
    Cingular Interactive filed the instant Notification of Construction,
    which included a proposed substantial service showing with respect
    to those 39 licenses, which were in 27 of its 49 MTAs. Cingular
    Interactive also filed supplements to its substantial service
    showing on February 21, 2001, and May 2, 2001.[^8]

4.  In its substantial service showing, Cingular Interactive provides
    the following information regarding its services in the 900 MHz SMR
    band: Cingular Interactive's network encompasses 49 of the 51 MTAs
    in the 900 MHz SMR service, *i.e*., serving the continental United
    States, Alaska, and Puerto Rico. In the aggregate, Cingular
    Interactive had, at the time of filing, over 600,000 end users, and
    it estimated that 40,000 or more new users would be added to the
    system each month. With respect to actual constructed facilities,
    Cingular Interactive had placed into operation more than 2,000 base
    stations, with plans to construct more than 350 new base stations in
    2001.[^9] On an aggregate population basis, Cingular Interactive
    provided coverage to more than two-thirds of the entire population
    of the United States, or approximately 182 million people,
    network-wide. A breakdown[^10] of all MTAs in which Cingular
    Interactive operates reveals that for each licensed channel block
    held in 15 of those MTAs, Cingular Interactive provided coverage to
    more than 75 percent of the population of the market, and its system
    served seven markets at the 66 to 74 percent level. Of the markets
    in which Cingular Interactive was providing service below the
    two-thirds coverage level, twenty-one of Cingular Interactive's MTAs
    had reliable coverage between 33 and 65 percent for each licensed
    channel block. In the remaining six markets, Cingular Interactive
    states that it will cover at least 30 percent of the population for
    each license held in those MTAs by the construction deadline.

5.  Cingular Interactive argues that the integrated nature of its data
    network makes it appropriate for the Commission to evaluate its
    substantial service showing in the aggregate. It asserts that
    section 90.665(c) does not necessarily require the Commission to
    evaluate whether a licensee is providing substantial service within
    any individual license area and that the Commission, in setting out
    the alternative substantial service showing, recognized that strict
    adherence to a market-by-market analysis would be inappropriate in
    the case of large networks. Instead, Cingular Interactive maintains,
    the nationwide scope of its services as a whole, as well as the
    nature of the technologically sophisticated services it offers, are
    appropriate criteria by which to judge its substantial service
    showing. By these criteria, argues Cingular Interactive, it has
    fully met the construction and implementation requirement set out in
    section 90.665(c).

**III. DISCUSSION**

6.  In setting out the specific construction requirements for the 900
    MHz SMR service, the Commission found that the use of substantial
    service as a construction standard is appropriate for this band
    "because several current offerings in this band are cutting-edge
    niche services."[^11] The Commission concluded that, in determining
    substantiality, it "may consider such factors as whether the
    licensee offers a service that covers multiple MTAs or is offering
    an otherwise specialized or technologically sophisticated service
    that does not require ubiquitous service to be of benefit to
    customers."[^12]

7.  Based on the specific construction standards applicable to the 900
    MHz SMR service, we do not agree with Cingular Interactive's
    assertion that, due to the integrated nature of its system, we
    should evaluate the sufficiency of its showing according to the
    level of construction across the entire network as a whole rather
    than by reviewing each MTA license individually. We evaluate such
    showings on a license-by-license basis. In markets in which a
    licensee holds multiple channel blocks, the licensee must satisfy
    the Commission's construction requirements for each block it holds
    within that MTA. We do conclude, however, that the nationwide nature
    and scope of the network is relevant under the service's
    construction standards in determining the sufficiency of service in
    each of Cingular Interactive's individual license areas.[^13]
    Cingular Interactive's service is deployed specifically as an
    integrated, multi-MTA system such that every subscriber has access
    to all of the facilities within the network when traveling outside
    his or her MTA. The *900 MHz SMR Second Report and Order* states
    that we may consider the extent to which a licensee provides service
    to multiple MTAs as a factor in evaluating substantial service.
    Accordingly, because Cingular Interactive's system operates as a
    nationwide network, we consider as relevant the extent of coverage
    available to subscribers throughout this 900 MHz SMR system in
    evaluating substantiality in individual MTAs. We note, however,
    that, under the Commission's 900 MHz SMR standards, significant
    construction across a multi-MTA system will not be sufficient to
    remedy a failure to construct with respect to a particular license.
    Construction must occur in each individual license area, on each
    licensed channel block, in order to comply with the Commission's
    construction requirements.

8.  Based on the totality of Cingular Interactive's showing, we find
    that Cingular Interactive will comply with its construction
    obligations if it builds out its system as described in this Order.
    We conclude that Cingular Interactive's actual number of end
    users,[^14] current population coverage in certain markets, current
    base station buildout, and technologically sophisticated service
    offerings \-\-- if combined with the further construction that
    Cingular Interactive projects, as described below \-\--will
    constitute substantial service for each of its licenses.

9.  We start with the population coverage provided by Cingular
    Interactive's network. Of the 27 MTAs here at issue, we note that
    Cingular Interactive currently provides service at a level covering
    between 33 and 65 percent of the population in 21 of those markets,
    where it holds 31 licenses. In the remaining six markets, where it
    holds 8 licenses, Cingular Interactive projects that it will provide
    coverage of at least 30 percent of the population by its
    construction deadline. Our finding that Cingular Interactive's
    projected buildout in these six markets would constitute substantial
    service relies heavily on Cingular Interactive's representation that
    it will provide coverage to at least 30 percent of the population in
    each of its markets by the applicable construction deadline.
    Finally, looking to Cingular Interactive's integrated, multi-MTA
    network under the standard described above, we note that Cingular
    Interactive has provided extensive coverage in its 45 licenses in
    the other 22 markets, having already met or surpassed the two-thirds
    coverage benchmark with respect to these licenses.[^15]

10. We also find that the service offerings provided by Cingular
    Interactive are technologically sophisticated, and lend support to a
    finding of substantial service. The Commission adopted the
    substantial service option in the *900 MHz Second Report and Order*
    in order to provide flexibility to licensees, particularly in
    situations in which licensees offer cutting-edge niche services.
    Cingular Interactive's data network acts as a platform for a number
    of innovative products, and its business and public sector customers
    may use the wireless data network as a platform for such
    applications as computer-aided dispatch, remote database access, and
    telemetry.[^16] Public safety entities, such as law enforcement
    agencies, use the data network as a means of quickly transmitting
    critical information to employees in the field. Increasingly,
    Cingular Interactive's data network gives end users access to the
    Internet, email, and instant messaging services via handheld
    devices.[^17] Other applications include mobile communications to
    the hearing impaired[^18] and an advanced messaging service that
    bundles into one product an interactive pager, applications
    software, and Cingular Interactive's radio communications
    services.[^19]

11. We conclude that the extent to which Cingular Interactive is placing
    its service into operation on both an individual market and a
    nationwide basis, as well as the innovative nature of its wireless
    data service, will support a finding of substantial service in each
    of its license areas. We reiterate, however, that this conclusion is
    based upon the totality of circumstances set out in this licensee's
    showing. If Cingular Interactive's actual construction materially
    deviates from the circumstances and projected buildout set forth
    above, including stated end users, stated infrastructure, and stated
    as well as projected coverage, it may be necessary to reevaluate our
    conclusion regarding the substantiality of Cingular Interactive's
    buildout. Based on the circumstances as presented, however, if
    Cingular Interactive meets the coverage levels as set out in this
    Order, and provides notification of such construction on or before
    the construction deadline, we conclude that Cingular Interactive
    will satisfy the construction requirements set out in section
    90.665(c) of the Commission's rules.

**IV. CONCLUSION**

12. Accordingly, IT IS ORDERED, pursuant to section 90.665(c) of the
    Commission's rules, 47 C.F.R. § 90.665(c), that the Notification of
    Construction, File Number 0000226552, filed by Cingular Interactive,
    L.P., IS DISMISSED.

13. Further, WE CONCLUDE, pursuant to section 4(i) of the Communications
    Act of 1934, as amended, 47 U.S.C. 154(i), section 5(d) of the
    Administrative Procedure Act, 5 U.S.C. § 554(e), and section 1.2 of
    the Commission's rules, 47 C.F.R. § 1.2, that Cingular Interactive,
    L.P., will comply with construction requirements set out in section
    90.665(c) of the Commission's rules, if it achieves, by the
    construction deadline, the level of construction for each of its
    markets as projected in its filing and described in this Order. In
    order to satisfy our construction rules, Cingular Interactive, L.P.,
    will need to file a timely Notification of Construction at such time
    as it meets this requirement.

> FEDERAL COMMUNICATIONS COMMISSION
>
> James D. Schlichting
>
> Deputy Chief, Wireless Telecommunications Bureau

[^1]: On February 5, 2001, the name of the licensee was changed from
    BellSouth Wireless Data, L.P., to Cingular Interactive, L.P.

[^2]: Bell South Wireless Data, L.P., Notification of Construction, File
    No. 0000226552, filed September 30, 1999 (Substantial Service
    Showing).

[^3]: The Commission may, in accordance with section 5(d) of the
    Administrative Procedure Act, on motion or on its own motion, issue
    a declaratory ruling terminating a controversy or removing
    uncertainty. *See* 5 U.S.C. § 554(e); 47 C.F.R. § 1.2. In
    circumstances in which a licensee is uncertain as to whether it is
    satisfying the substantial service requirement, it has the option to
    file a proposed substantial service showing prior to its five-year
    construction deadline, and seek a declaratory ruling as to whether
    such showing meets the construction requirement. *See* In the Matter
    of Paging Network, Inc., Request for Waiver of Section 90.665 of the
    Commission's Rules Relating to the Construction of 900 MHz SMR MTA
    Facilities, *Order*, 15 FCC Rcd 12141, ¶ 12 (2000).

[^4]: The Wireless Telecommunications Bureau recently extended the
    construction deadline for 900 MHz SMR MTA licenses from August 12,
    2001, to December 31, 2002. *See* FCI 900 Inc. Expedited Request for
    3-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*, DA 01-1297 (WTB rel. May 25, 2001).
    Accordingly, Cingular Interactive must meet its substantial service
    requirements, as defined in this order, by the latter date.

[^5]: The 900 MHz SMR band is divided into 20 ten-channel blocks in each
    of 51 service areas that are known as Major Trading Areas (MTAs). Of
    the 49 markets in which Cingular Interactive is licensed, there are
    31 MTAs in which Cingular Interactive holds multiple channel blocks.

[^6]: On August 17, 1999, Cingular Interactive notified the Commission
    that it had satisfied the two-thirds coverage requirement for 45 of
    its MTA licenses in its other 22 MTAs. *See* BellSouth Wireless
    Data, L.P., Notification of Construction, File No. 0000025493, filed
    August, 17, 1999. That notification of construction was granted on
    September 18, 1999. One of Cingular Interactive's licenses, Call
    Sign KNXX957, was acquired from CommNet Communications Network, Inc.
    *See* BellSouth Wireless Data, L.P., Application for Assignments of
    Authorization and Transfers of Control, File No. 0000211866, filed
    October 18, 2000. The Commission approved the assignment on November
    4, 2000. Cingular Interactive has not filed a Notification of
    Construction for Call Sign KNXX957. Accordingly, Call Sign KNXX957
    is not being considered here. This Order only addresses the 39
    licenses identified in Cingular Interactive's September 30, 1999
    filing, which cover a total of 27 markets.

[^7]: BellSouth Wireless Data, L.P., Notification of Construction, File
    No. 0000025494, filed August 17, 1999.

[^8]: BellSouth Wireless Data, L.P., Notification of Construction,
    Supplement to Substantial Service Showing, File No. 0000226552,
    filed February 21, 2001 (Supplement to Substantial Service Showing);
    BellSouth Wireless Data, L.P., Notification of Construction, Minor
    Amendment to Showing of Substantial Service, File No. 0000226552,
    filed May 2, 2001.

[^9]: Cingular Interactive added more than 250 base stations to its
    network in the interim between the filing of the original
    construction notification on September 30, 1999 and the February 21,
    2001 supplement. *See* Supplement to Substantial Service Showing, p.
    2.

[^10]: The breakdown describes the level of coverage provided in each
    channel block held by Cingular Interactive within an MTA.

[^11]: Amendment of Parts 2 and 90 of the Commission's Rules to Provide
    for the Use of 200 Channels Outside the Designated Filing Areas in
    the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool, Implementation of Section 309(j) of
    the Communications Act -- Competitive Bidding, Implementation of
    Sections 3(n) and 322 of the Communications Act, PR Docket No.
    89-553, PP Docket No. 93-253, GN Docket No. 93-252, *Second Report
    and Order and Second Further Notice of Proposed Rule Making*, 10 FCC
    Rcd 6884, ¶ 41 (1995) (*900 MHz SMR Second Report and Order*).

[^12]: *Id.* at ¶ 4.

[^13]: We note, however, that this conclusion is based on the specific
    substantial service criteria adopted for the 900 MHz SMR service,
    and may not be appropriate for other services that also have a
    substantial service construction standard.

[^14]: We note that the number of end users currently served is
    significant in light of the specialized nature of services offered
    by Cingular Interactive's 900 MHz SMR network. The number of actual
    end users in this network is noteworthy given the cost of end user
    equipment. The cost of the equipment to access this wireless data
    network \-\-- for example, a radio modem-equipped personal digital
    assistant \-\-- may be significantly greater than the hand-held
    telephones or pagers used to access other wireless services.

[^15]: As noted, *supra,* in footnote 6, Cingular Interactive has
    previously satisfied the construction requirement for these 45
    licenses.

[^16]: Cingular Interactive, as a reseller, also provides enhanced
    coverage via interconnection with satellite communications services.
    For example, the satellite coverage offering enables one customer,
    Sears, Roebuck and Co., to use hand-held computers to give
    technicians in remote areas the ability to access customer account
    information, provide job estimates, and communicate with managers.
    *See* Substantial Service Showing, Attachment at 4.

[^17]: For example, Cingular Interactive's network is used to provide
    services, such as AOL Mobile Messaging Service, BlackBerry Corporate
    Email Solution, and the Palm.net service, that provide applications
    such as instant messaging, e-mail, web clipping, and e-commerce.
    *See id.* at 6-7; Supplement to Substantial Service Showing,
    Attachment at 2.

[^18]: Wynd Communications provides WyndTell service, which operates
    through a palm-sized device that alerts users of new messages by
    vibration, an LED, or an audible alert. The WyndTell service allows
    the hearing-impaired to communicate interactively using methods such
    as text telephone (TTY), Internet email, fax, alpha pager, and
    text-to-speech. *See* Substantial Service Showing, Attachment at 6.

[^19]: Cingular Interactive's Interactive Paging Service gives Cingular
    subscribers the ability to initiate and respond to messages via the
    Internet, enterprise e-mail systems, telephone, or fax. Cingular
    Interactive customers can design customized applications using the
    interactive pagers. For example, users can access Fidelity
    Investment stock market information and execute stock trades over
    the interactive pagers. Others have used the interactive paging as a
    medium for applications such as enterprise information management,
    fleet dispatch, and automatic vehicle location. *See* *id.* at 4.