May 31, 2005

DA 05-1387

Buddy C. Stanley

ITV, Inc.

12742 Hamilton Crossing

Carmel, IN 46032

Re: [Call Sign KIVD0011]{.underline}

Dear Mr. Stanley:

This letter is in response to a renewal application, substantial service
showing, and request for waiver of the substantial service and
construction requirements of sections 95.831 and 95.833, respectively,
of the Commission's rules[^1] for Station KIVD0011, filed by ITV, Inc.
(ITV) on March 12, 2004.[^2] For the reasons set forth below, we reject
ITV's substantial service showing, deny its waiver request, and dismiss
its renewal application.

By way of background, on March 28, 1994, through the lottery process,
the Commission granted ITV authorization to operate in the 218-219 MHz
service (formerly the Interactive Video and Data Service (IVDS)) in San
Francisco, CA and Oakland, CA under call sign KIVD0011. Pursuant to the
Commission's rules in effect when this license was granted, stations
must be placed into operation within five years from the date the
license was granted.[^3] Moreover, unless an extension of time to
construct was granted, the authorization would terminate automatically
if the construction and operation deadlines were not met.[^4] In
September 1999, the Commission eliminated the three- and five-year
construction benchmarks, extended the term of all 218-219 MHz service
licenses to ten years from the date of their license grant, and adopted
a "substantial service" showing to be assessed at the expiration of the
license term as a condition for renewal.[^5] Accordingly, ITV was
required to provide substantial service within the service area by March
28, 2004.

In its license renewal request, ITV states that it has spent more than
\$1.25 million in developing 218-219 MHz service equipment, business
models, and end-user applications.[^6] ITV further states that although
no transmitters are currently operational in its system, ITV has
identified and arranged for cell transmitter station (CTS) space in
central San Francisco, CA, which would permit 218-219 MHz service to be
provided to the central portion of the San Francisco, CA -- Oakland, CA
market. ITV requests that we deem its \$1.25 million investment in
developing its 218-219 MHz service to be "substantial service" within
the meaning of sections 95.831 and 95.833 of the Commission's rules. In
the alternative, ITV requests a waiver of those rules so that it may
continue its "development efforts" in the 218-219 MHz service.

[ITV's substantial service showing]{.underline}. Section 95.831 of the
Commission's rules states that, subject to the initial construction
requirements of section 95.833, each 218-219 MHz service system licensee
"must demonstrate that it provides substantial service within the
relevant service area. Substantial service is defined as a service that
is sound, favorable and substantially above a level of service which
might minimally warrant renewal."[^7] ITV states that it has spent more
than \$1.25 million related to its 218-219 MHz service license, but
concedes that no transmitters are currently operational. ITV also claims
that it has "arranged" for transmitter space within its authorized
market, although it has not yet been able to develop a business model
that would permit it to operate on a self-sustaining basis. We are not
persuaded by ITV's arguments. By its own admission, and in consideration
of the facts before us, ITV does not provide 218-219 MHz service in the
San Francisco, CA -- Oakland, CA market. We therefore cannot conclude
that it has met the requirements prescribed in sections 95.831 and
95.833 to minimally warrant a renewal of its license for Station
KIVD0011.[^8] Moreover, because section 95.833 of the Commission's rules
requires that each 218-219 MHz service licensee make a showing of
"substantial service" within ten years of the license grant,[^9] we also
determine that ITV's license for Station KIVD0011 terminated
automatically on March 28, 2004.[^10]

[ITV's waiver request.]{.underline} Pursuant to section 1.925 of the
Commission's rules, a waiver may be granted if it is shown that: 1) the
underlying purpose of the rule(s) would not be served or would be
frustrated by application to the instant case, and that grant of the
requested waiver would be in the public interest; or 2) in view of
unique or unusual factual circumstances of the instant case, application
of the rule(s) would be inequitable, unduly burdensome or contrary to
the public interest, or the applicant has no reasonable
alternative.[^11] ITV states that development of a nationwide 218-219
MHz service is required in order to generate the mass-market economies
of scale and sufficient demand to make its efforts successful. ITV
requests that it be given an undetermined amount of time to "continue
its development efforts." ITV presents no argument demonstrating how
application of the sections 95.831 and 95.833 here would frustrate the
underlying purpose of these rules. On the contrary, we believe that a
grant of ITV's waiver request would subvert the Commission's overall
policy goals to promote the rapid development of viable 218-219 MHz
services. Moreover, ITV presents no unique or unusual factual
circumstances that would warrant a waiver consistent with the public
interest. The waiver request is hereby denied.

Accordingly, for the reasons stated herein, pursuant to sections 1.925,
1.955 and 95.831 of the Commission's rules, 47 C.F.R. §§ 1.925, 1.955
and 95.831, we reject ITV's substantial service showing, deny its waiver
request, and dismiss its renewal application. These actions are taken
under delegated authority pursuant to Sections 0.131 and 0.331 of the
Commission's Rules, 47 C.F.R. §§ 0.131 and 0.331.

Sincerely,

Katherine M. Harris

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: *See* 47 C.F.R. §§ 95.831, 95.833.

[^2]: ULS File No. 0001654409. Report of Substantial Service; Contingent
    Request for Partial Waiver of Sections 95.831 and 95.833 of the
    Rules, filed by ITV, Inc. on March 12, 2004 (ITV Renewal Request).

[^3]: The Commission adopted the five-year license term in the *1992
    Allocation Report and Order* in the context of awarding licenses by
    lottery "to reduce any potential for trafficking in licenses by
    persons who have no real interest in constructing," and as
    "consistent with the license term used in most other private radio
    services." In the Matter of Amendment of Parts 0, 1, 2 and 95 of the
    Commission's Rules to Provide Interactive Video and Data services,
    GEN Docket No. 91-2, *Report and Order*, 7 FCC Rcd 1630, 1641 (1992)
    (*1992 Allocation Report and Order*), *on recon*., *Memorandum
    Opinion and Order*, 7 FCC Rcd 4923 (1992), *further recon*., *Second
    Memorandum Opinion and Order*, 8 FCC Rcd 2787 (1993). The five-year
    license term conformed to the five-year license term of the General
    Mobile Radio Service, 47 C.F.R. § 95.105, and the Personal Radio
    Service under which the 218-219 MHz service is classified, 47 C.F.R.
    § 95.1(c).

[^4]: *See* 47 C.F.R. §§ 1.946, 1.955.

[^5]: *See* In the Matter of Amendment of Part 95 of the Commission's
    Rules to Provide Regulatory Flexibility in the 218-219 MHz Service,
    WT Docket No. 98-169, RM-8951, *Report and Order and Memorandum
    Opinion and Order*, 15 FCC Rcd 1497 (1999).

[^6]: *Id.*

[^7]: 47 C.F.R. § 95.831.

[^8]: *See* San Francisco IVDS, Inc., *Memorandum Opinion and Order*, 20
    FCC Rcd 1960 (2005) (reinstating and renewing a 218-219 MHz service
    license where the licensee failed to renew its license in a timely
    fashion because it was actually offering service to customers at the
    time its license expired).

[^9]: 47 C.F.R. § 95.833(a).

[^10]: In this connection, we note that, pursuant to section 95.833(c)
    of the Commission's rules, ITV will not be eligible to apply for
    218-219 MHz service licenses for three years from the date the
    Commission takes final action affirming that its 218-219 MHz service
    license has been canceled. 47 C.F.R. § 95.833(c).

[^11]: *See* 47 C.F.R. § 1.925. Alternatively, pursuant to section 1.3
    of the Commission's rules, the Commission has authority to waive its
    rules if there is "good cause" to do so. 47 C.F.R. § 1.3. *See also*
    *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164 (D.C. Cir.
    1990).