**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 02-224         |
|                                  | *) |                              |
| ACCESS 220, LLC                  | ** |                              |
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| Request for Waivers To Provide   | *  |                              |
| Band                             | *) |                              |
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| Management Services Utilizing    |    |                              |
| Licenses                         | *  |                              |
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| In the 220-222 MHz Band          | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**Memorandum Opinion and Order**

**Adopted: October 16, 2002 Released: October 16, 2002**

By the Chief, Wireless Telecommunications Bureau:

# Introduction

1.  On July 3, 2002, Access 220, LLC ("Access 220") and its parent,
    Access Spectrum, LLC ("Access Spectrum"), filed a request seeking
    limited waiver of sections 90.733, 90.725, and 90.769 of the
    Commission's rules in order to extend their existing 700 MHz band
    management activities to Access 220's newly acquired 220-222 MHz
    licenses.[^1] By this Order, we grant Access 220's Waiver Request,
    as described below.

# background

## **220-222 MHz Service Rules**

2.  The 220-222 MHz band is allocated for private and federal government
    land mobile use, and is dedicated to "the development of narrowband
    spectrum efficient technologies to meet the communications
    requirements of the land mobile service."[^2] Section 90.733 of the
    Commission's rules limits permissible operations for a licensee in
    the 220-222 MHz frequency band to private land mobile operations and
    certain one-way or two-way paging operations and fixed
    operations.[^3] Section 90.725 of the Commission's rules sets forth
    the construction requirements for "Phase I" nationwide licenses in
    the 220-222 MHz band whereas section 90.769 sets forth the
    construction and implementation requirements for "Phase II"
    nationwide licenses in the 220-222 MHz band.[^4] The build-out
    benchmarks for the Phase I nationwide licenses are based on coverage
    of specified geographic areas, while the benchmarks for Phase II
    nationwide licenses are based on a certain level of coverage of
    geographic areas or the U.S. population.

## The Waiver Request

3.  Access Spectrum is a private venture formed by the Industrial
    Telecommunications Association, Inc. ("ITA") to increase the
    spectrum options available to mobile radio users.[^5] Access
    Spectrum holds 21 major economic area ("MEA") licenses as a band
    manager licensee in the 700 MHz Guard Band.[^6] Access 220, a
    wholly-owned subsidiary of Access Spectrum, was formed to acquire
    220-222 MHz licenses from Aerwav Spectrum Holdings, Inc. ("Aerwav"),
    the largest spectrum holder in the 220-222 MHz band.[^7] The
    Commission consented on July 9, 2002, to Access 220 acquiring 115
    authorizations from Aerwav, and the assignment was consummated on
    August 27, 2002.[^8] These licenses include one Phase II nationwide
    license, two Phase I nationwide licenses, eight economic area
    grouping ("EAG") licenses, and 104 economic area ("EA")
    licenses.[^9] Because Access 220 intends to acquire additional
    authorizations in this band, it requests that any waiver relief
    granted be extended to include any 220-222 MHz licenses it may
    subsequently acquire.[^10]

4.  Access Spectrum, by and through its subsidiary, Access 220, seeks to
    extend its existing 700 MHz band management activities to the
    recently acquired 220-222 MHz licenses. Because the 220-222 MHz
    service rules do not expressly contemplate the use of band managers,
    however, Access 220 seeks limited waivers of the section 90.733
    permissible use restrictions and the construction requirements of
    sections 90.725 and 90.769. Access 220 asserts that the strict
    application of these rules would fail to serve their underlying
    purposes, and the requested waivers, if granted, will promote the
    public interest by ensuring the most flexible and efficient use of
    the 220-222 MHz spectrum.[^11]

5.  Access 220 seeks a waiver of section 90.733 because the rule does
    not list band management as a permissible use for the band.[^12]
    Access 220 asserts that the rule did not include band management
    because section 90.733 pre-dates the Commission's implementation of
    band managers. Therefore, Access 220 contends, a grant of waiver
    would be consistent with the underlying purpose of the rule: to
    ensure the availability and efficient use of spectrum for users
    whose needs cannot be met through consumer technology.[^13] Access
    220's request for waiver of section 90.733 concerns all 115 220 MHz
    licenses that Access 220 acquired from Aerwav.[^14]

6.  Access 220 also seeks limited waivers of the construction
    requirements of sections 90.725 and 90.769 in order to permit
    alternative construction showings by band managers, which do not
    necessarily operate facilities. Access 220 asserts that grant of the
    waiver requests would be consistent with the underlying purposes of
    the rules to promote utilization of the 220-222 MHz band and to
    assure that only "bona fide applicants" apply for licenses in the
    band.[^15] Access 220 urges the Commission to allow construction to
    be measured by a "substantial service" test so as to include as
    relevant third party construction under subscriber agreements, with
    a safe harbor coverage percentage consistent with the decision in
    *Intek License Acquisition Corp. Request for Waiver and
    Consolidation of 220 MHz Construction Requirements.*[^16] Access 220
    asserts that a waiver is needed because, unlike other licensees,
    band managers provide for the coordinated use of spectrum by third
    parties and consequently have no construction of their own on which
    to base a geographic or population coverage filing required by the
    two build-out rules.[^17] Access 220's request for waiver of
    sections 90.725 and 90.769 concerns only three of the 220 MHz
    licenses acquired from Aerwav: two Phase I nationwide licenses and
    one Phase II nationwide license.

7.  With regard to extending its 700 MHz band manager role to the
    220-222 MHz band, Access 220 proposes to apply the Commission's 700
    MHz band manager rules and obligations detailed in Part 27 of the
    Commission's rules to the 220-222 MHz licenses, except for certain
    specific provisions not meaningful in the 220 MHz context.[^18]
    Access 220 also states that it is committed to complying with all
    the applicable technical standards of Subpart I of Part 90 of the
    Commission's rules and all relevant technical and operational
    requirements applicable to operations in the 220-222 MHz band.
    According to Access 220, the use of band managers in the 220-222 MHz
    band will fulfill the Commission's original policy goals of
    encouraging efficient use of the 220-222 MHz band and expediting
    service to areas that otherwise would not receive it.[^19]

8.  To seek comment on Access 220's request for waivers, we released a
    *Public Notice* on August 6, 2002.[^20] In response to the *Notice*,
    we received five comments, six reply comments, and three further or
    supplemental comments.[^21]

# discussion

## Waiver of the Permissible Use Restrictions

9.  **[Background]{.underline}**. As stated above, Access 220's parent,
    Access Spectrum, holds 21 MEA licenses in the 700 MHz Guard Band
    Manager service.[^22] Access 220 points out that, in the 700 MHz
    Guard Band, Access Spectrum has "developed exhaustive spectrum
    channelization plans and technical parameters to maximize efficient
    band usage, secured extensive third party financing, and is
    negotiating a significant number of spectrum use agreements ('SUAs')
    with unaffiliated spectrum customers."[^23] According to Access 220,
    Access Spectrum "has turned the band management concept into
    reality, and is now poised to efficiently offer new service options
    -- in a new spectrum band -- to radio users in need of voice and
    data solutions."[^24] Indeed, Access Spectrum is the only 700 MHz
    Guard Band Manager licensee that has reported entering into a
    current, long-term spectrum use agreement with an unaffiliated
    entity.[^25]

10. In order to complement Access Spectrum's 700 MHz Guard Band Manager
    service areas to create some nationwide opportunities, Access 220
    acquired the 220 MHz licenses previously held by Aerwav and its
    affiliates.[^26] At present, section 90.733 does not expressly
    authorize band manager operations in the 220-222 MHz band.[^27]
    Accordingly, in order to extend its band manager operations into the
    220 MHz band, Access 220 has requested a waiver of the rule.

11. To obtain a waiver of the Commission's rules, Access 220 must
    show: (i) that the underlying purpose of the rule would not be
    served, or would be frustrated, by its application in this
    particular case, and that grant of the requested waiver would be in
    the public interest; or (ii) that the unique facts and circumstances
    of the particular case render application of the rule inequitable,
    unduly burdensome or otherwise contrary to the public interest, or
    that the petitioner has no reasonable alternative.[^28]
    Alternatively, the Commission may, on its own motion or on petition
    if "good cause" is shown, waive any provision of the Commission's
    rules at any time, subject to the provisions of the Administrative
    Procedure Act and the Commission's rules.[^29]

12. **[Discussion]{.underline}**. We find that grant of a limited waiver
    to permit Access 220 to engage in band manager operations pursuant
    to the 220 MHz authorizations it currently holds would further the
    public interest by facilitating the Commission's stated objectives
    for the 220 MHz spectrum and is warranted under the waiver standards
    established by sections 1.925 and 1.3 of the Commission's rules. We
    condition grant of this waiver on Access 220's compliance with the
    requirements imposed on 700 MHz Guard Band Manager licensees, with
    the specific exceptions set out below. These conditions mirror the
    terms of operation established by the Commission for 700 MHz Guard
    Band Manager licensees when it established the service.[^30]

13. The Commission has made clear that it wishes to facilitate efficient
    use of the 220 MHz spectrum and expedite service to areas that might
    not otherwise receive it.[^31] In addition, in revamping the 220 MHz
    rules, the Commission set forth additional goals for operation in
    this band:

> Our primary goal in this proceeding is to establish a flexible
> regulatory framework that will allow for more efficient licensing of
> the 220-222 MHz band, eliminate unnecessary regulatory burdens on both
> existing and future licensees, and enhance the competitive potential
> of the 220 MHz service in the mobile services marketplace. In
> addition, we seek to ensure that licenses are granted to those who
> value the spectrum most highly and will maximize its use to provide
> the best quality and variety of service to consumers.[^32]

14. Permitting Access 220 to operate as a band manager in the 220 MHz
    spectrum, subject to all the relevant conditions from the
    Commission's 700 MHz Guard Band Manager licensing rules, will help
    to further the Commission's objectives for this spectrum. Among
    other things, Access 220's operation as a band manager will provide
    potential users of 220 MHz spectrum with an additional option for
    deploying 220 MHz facilities. Specifically, in addition to obtaining
    a Commission-defined geographic area license or procuring service as
    a customer of a licensee, entities will be able to obtain access to
    220 MHz spectrum based on a tailored coverage area and an
    individually negotiated agreement with Access 220. Access 220's
    deployment of band manager operations in the 220 MHz frequencies
    will serve as another tool in helping to promote efficient use and
    expand usage opportunities.[^33] We have noted in similar contexts
    that "band manager licensing is a market-based mechanism that can
    create incentives for efficient spectrum use."[^34] By granting this
    waiver, the Commission is providing more opportunities to the public
    to obtain radio transmission capacity under desired terms.

15. At the same time, denial of the waiver would be inconsistent with
    the purposes of the Commission's 220 MHz rules. Enforcement of the
    provisions of section 90.733 to bar Access 220 from providing band
    manager services would thwart achievement of this important set of
    objectives and undermine the Commission's general efforts to promote
    customer choice in wireless services and flexibility in service
    offerings. We accordingly determine that the underlying purpose of
    section 90.733 would not be served if the requested waiver were
    denied. Grant of the Access 220 waiver request[^35] thus meets our
    section 1.925 waiver requirements and furthers our 220 MHz
    regulatory objectives.[^36]

16. A couple of commenters have suggested that, in lieu of granting the
    waiver requested by Access 220, the Commission should launch a more
    expansive rulemaking.[^37] Nothing in the grant of this waiver
    precludes future consideration of alternative policies for the 220
    MHz band.

17. We impose as conditions on the grant of this waiver the requirements
    applied by the Commission to the 700 MHz Guard Band Manager service,
    with the exception of those provisions that are not technically or
    operationally relevant to the 220 MHz band.[^38] These conditions
    will help to ensure that Access 220's band manager operations are in
    full compliance with the requirements of the Communications Act of
    1934, as amended, and the Commission's rules and policies.
    Specifically, Access 220's band management operations will be
    governed by the following conditions:

-   Access 220 shall enter into written agreements regarding the use of
    Access 220's licensed spectrum that contain the requirements and
    conditions listed in section 27.602 of the Commission's rules,[^39]
    including provisions that apply all existing licensee obligations to
    the spectrum user, require the spectrum user to comply with
    applicable Commission rules and direct Commission oversight and
    enforcement, and stipulate that if Access 220 determines that there
    is an ongoing violation of the Commission's rules or that the
    spectrum user's system is causing harmful interference, then Access
    220 shall have the right to suspend or terminate operation of the
    spectrum user's system and will use all legal means necessary to
    enforce that suspension or termination.

-   Access 220 shall not engage in unjust or unreasonable discrimination
    among spectrum users, nor unreasonably deny prospective spectrum
    users access to Access 220's licensed spectrum.[^40]

-   Access 220 shall not impose unduly restrictive requirements on use
    of its licensed frequencies, including any requirement that is not
    reasonably related to the efficient management of the spectrum
    licensed to Access 220.[^41]

-   Access 220 shall utilize the predominant amount of its spectrum for
    non-affiliates.[^42]

-   Access 220 shall resolve disputes with its customers or disputes
    between its customers in the same manner that the parties would
    resolve other commercial disputes arising out of the spectrum user
    agreement.[^43]

-   Access 220 shall file an annual report providing the Commission with
    information about the manner in which its spectrum is being
    utilized, including: (1) the total number of spectrum users and the
    number of those users that are affiliates of Access 220; (2) the
    amount of Access 220's spectrum being used by its affiliates in any
    part of the licensed service area; (3) the amount of Access 220's
    spectrum being used pursuant to agreements with unaffiliated third
    parties; (4) the nature of the spectrum use of Access 220's
    customers; and (5) the length of the term of each spectrum use
    agreement.[^44]

-   Access 220 shall file separate station applications, as necessary,
    with respect to all Environmental Assessments, international
    coordination, and quiet zones (*i.e.*, end users will not make such
    FCC filings).[^45]

-   Access 220 shall make filings, as necessary, with respect to the
    notification and authorization requirements set forth in section
    27.66[^46] when a deletion, move, or change of a station's
    operations constitutes a discontinuance, reduction, or impairment of
    service under that section, or results from an involuntary act
    subject to section 27.66(a).[^47]

    While we have decided to include as conditions the requirements
    imposed on Access 220's parent, Access Spectrum, as a provider of
    700 MHz Guard Band Manager services, we also conclude that certain
    restrictions applied in that service are not technically or
    operationally relevant to operations in the 220 MHz band.
    Specifically, we do not impose the following requirements on Access
    220 in connection with its band manager operations at 220 MHz:

```{=html}
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-   Section 27.2(b)'s prohibition against employing a cellular system
    architecture (intended to help prevent harmful interference to
    adjacent public safety operations);

-   Section 27.601(d)'s requirement to notify public safety frequency
    coordinators (also part of the effort to prevent harmful
    interference to nearby public safety operations);

-   Section 27.604's limitations on number of block A and B 700 MHz
    Guard Band licenses won at auction;[^48]

-   Section 27.605's restrictions that 700 MHz Guard Band licenses may
    only be partitioned and/or disaggregated to another 700 MHz Guard
    Band Manager licensee;

-   The performance requirements jointly imposed by sections 27.607 and
    27.14(a) (which incorporate for the 700 MHz Guard Band Manager
    licenses a definition of "substantial service" applied to Wireless
    Communications Service, also a Part 27 service, rather than the 220
    MHz spectrum); and

-   Section 27.601(d)'s special requirements governing coordination
    among Guard Band Managers in the 700 MHz Guard Band, which is
    licensed exclusively to band managers (as the sole band manager at
    220 MHz, Access 220's operations -- like those of other licensees in
    the 220 MHz service -- will be governed by the coordination
    procedures and operational requirements specifically applicable to
    that service).

Given the differences in technical characteristics and public safety
coordination needs between the 700 MHz Guard Band and the 220 MHz band,
we find that these 700 MHz Guard Band Manager requirements are not
technically or operationally relevant in the 220 MHz context.

18. We also require Access 220 to abide by all of the technical
    requirements applicable to 220 MHz licensees. Contrary to the
    suggestions of some of the commenters, the Access 220 waiver request
    does not increase the risk of interference or other technical
    problems. Access 220 has agreed to abide by all of the technical
    rules,[^49] and we require such compliance as a condition of the
    relief granted to Access 220. Moreover, the concerns raised about
    potential harmful interference are based not on Access 220's
    specific request but on the rules as they currently exist. For
    instance, certain concerns[^50] in reality relate to section
    90.733(d), which, as amended in 1997, [^51] already permits all
    licensees in the 220 MHz band to combine channels to form channels
    wider than 5 kHz, as Access 220 proposes to do.[^52] A second
    concern,[^53] regarding the 1 MHz offset between transmit and
    receive frequencies, is governed by rules, sections 90.715[^54] and
    90.723,[^55] that have been in place since the 220 MHz service was
    created. Again, nothing in Access 220's request for waiver raises
    unique harmful interference issues, and Access 220 seeks no waiver
    of any technical requirements. Accordingly, such concerns provide no
    impediment to grant of the requested waiver.

19. In addition, contrary to the concern raised by one commenter,[^56]
    the Commission in no way is forcing land mobile radio users to give
    up their own licenses and instead become customers of a band manager
    or other licensee.

## Waiver of Build-out Rules

20. **[Background]{.underline}**. Access 220 requests a waiver of
    construction requirements set forth in sections 90.725 and 90.769 of
    the Commission's rules[^57] for three of its licenses to permit it
    to implement its band manager plan for the 220 MHz band licenses. In
    particular, Access 220 seeks to have its construction measured using
    a "substantial service" test so as to permit it to rely on the
    construction undertaken by third parties (*i.e.*, its band manager
    customers), with a safe harbor coverage percentage derived from the
    220 MHz waiver granted by the Bureau's Commercial Wireless Division
    in the *Intek Waiver Order*.

21. The *Intek Waiver Order* granted a waiver of construction
    requirements in connection with 11 call signs that have subsequently
    been assigned to Access 220, including the three specific call signs
    for which Access 220 has requested waiver of the construction
    requirements in this proceeding. For the two Phase I nationwide
    licenses, the *Intek Waiver Order* permitted Intek to satisfy
    *either* the remaining six- and ten-year construction requirements
    set forth in section 90.725 *or* the construction requirements for
    Phase II nationwide licenses set forth in section 90.769.[^58] In
    addition, Intek was required to meet an additional interim coverage
    benchmark of 250,000 square kilometers or 12.5 percent of the United
    States population by September 16, 2002, and this coverage
    requirement could be satisfied with respect to all 11 licenses
    covered by the order in the aggregate.[^59] Finally, the Commercial
    Wireless Division ruled that the waiver would be applicable to the
    11 licenses only as long as Intek or any successor in interest -- at
    this time, Access 220 -- were to operate the licenses as an
    integrated 28-channel system.[^60]

22. **[Discussion]{.underline}**. We find that grant of a limited waiver
    of the construction requirements of sections 90.725 and 90.769 is
    warranted to permit Access 220 to rely on a substantial service
    showing for the three call signs. Consistent with the conditions
    imposed above on Access 220's operation as a band manager in the 220
    MHz spectrum, the predominant portion of the 220 MHz spectrum
    licensed to Access 220 will be leased to third parties, who will
    construct the necessary facilities to operate. If we are to permit
    Access 220 to operate as a band manager subject to this condition,
    we necessarily must allow it to rely on the construction activities
    of third parties in order to meet the applicable build-out
    requirements. Endorsing a substantial service test for the three
    call signs will permit Access 220 to rely on third party activities.
    In addition, this approach is consistent with our build-out
    requirements for Economic Areas and regional licenses for this
    service.[^61]

23. The construction requirements adopted for these three call signs in
    the *Intek Waiver Order* will continue to apply. Thus, for the Phase
    I nationwide licenses (call signs WPFP444 and WPFR284), because no
    six-year construction showing was submitted to the Commission,[^62]
    Access 220 must satisfy the construction requirements set forth in
    section 90.769 for Phase II nationwide authorizations. Similarly,
    the construction requirement for the Phase II nationwide license
    (call sign WPOI701) will continue to be the construction
    requirements set forth in section 90.769. In both cases, as
    indicated above, Access 220 will be permitted to count third party
    construction.

24. Grant of this waiver to Access 220 is fully consistent with the
    action taken by the Commercial Wireless Division in the *Intek
    Waiver Order*. Our action in this order incorporates and takes into
    account the build-out waiver already granted in connection with the
    three call signs for which Access 220 now seeks a waiver of the
    construction requirements. Consistent with the Commercial Wireless
    Division's reasoning in the *Intek Waiver Order*, we find that it
    would be unduly burdensome to apply staggered construction
    timetables to the call signs at issue here, particularly when we are
    approving the use of these licenses as an integral part of Access
    220's band manager operations at 220 MHz. Thus, we find no need to
    retain the condition imposed by the Commercial Wireless Division
    requiring that the 28 channels governed by the *Intek Waiver Order*
    be operated on an integrated basis.[^63]

25. Accordingly, for the reasons stated above, we grant Access 220
    waiver of the construction requirements, subject to the conditions
    outlined in the preceding paragraphs.

# ordering clauses

26. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    sections 0.131, 0.331, 1.3, and 1.925 of the Commission's Rules, 47
    C.F.R. §§ 0.131, 0.331, 1.3, 1.925, the request filed by Access 220
    for waiver of the permissible use restrictions of section 90.733 and
    the Phase I and Phase II construction requirements of sections
    90.725 and 90.769 IS HEREBY GRANTED to the extent discussed herein.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Thomas J. Sugrue
>
> Chief, Wireless Telecommunications Bureau

**Appendix A**

**List of Commenters**

[Comments]{.underline} (filed Aug. 26, 2002)

Data Comlink, Inc. (Data Comlink)

Industrial Telecommunications Association, Inc. (ITA)

Motorola, Inc. (Motorola)

Texas License Consultants

United Telecom Council (UTC)

[Reply Comments]{.underline} (filed Sept. 5, 2002)

Access 220, LLC (Access 220)

ARRL, the National Association for Amateur Radio

Bizcom U.S.A. Inc. (Bizcom)

North Carolina Electric Membership Corporation

Venture Communications, Inc.

Warren C. Havens and Telesaurus Holdings GB, LLC, dba LMS Wireless (LMS
Wireless)

[Supplemental Reply Comments]{.underline} (filed Sept. 11, 2002)

Access 220

[Reply Comments]{.underline} (filed Sept. 16, 2002)

Richard B. Mills, Amateur Radio Station WX7Y, and the Sinbad Desert
Amateur Radio Club

[Reply Comments Supplement]{.underline} (filed Sept. 16, 2002)

LMS Wireless

[^1]: *See* Request for Waivers of Access 220, LLC, To Provide Band
    Management Services Utilizing Licenses in the 220-222 MHz Band, WT
    Dkt. No. 02-224 (filed July 3, 2002) ("Waiver Request").

[^2]: Amendment of Part 90 of the Commission's Rules To Provide for the
    Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Services, *Report and Order*, 6 FCC Rcd 2356, 2356 (1991)
    (subsequent history omitted).

[^3]: 47 C.F.R. § 90.733.

[^4]: 47 C.F.R. §§ 90.725, 90.769. Phase I licensees in the 220-222 MHz
    band are defined as licensees granted initial authorizations to
    operate based on applications filed on or before May 24, 1991,
    applicants that filed initial applications to operate on or before
    May 24, 1991, and all assignments, operations, stations, and systems
    of licensees granted authorizations based on applications filed on
    or before May 24, 1991. *See* 47 C.F.R. § 90.701(b). Phase II
    licensees in the 220-222 MHz band are defined as licensees granted
    initial authorizations for operations from applications filed after
    May 24, 1991, applicants that filed initial applications to operate
    after May 24, 1991, and all assignments, operations, stations, and
    systems of licensees granted authorizations from among applications
    filed after May 24, 1991. *See* 47 C.F.R. § 90.701(c).

[^5]: Waiver Request at 1.

[^6]: Waiver Request at 2.

[^7]: Waiver Request at 3. Aerwav's 220 MHz holdings represent the
    consolidated licenses of RoamerOne, Securicor, and Intek License
    Acquisition Corp. One hundred fifteen licenses were assigned to
    Access 220; Aerwav surrendered approximately 55 licenses for
    cancellation. Waiver Request at 3.

[^8]: *See* Application of Aerwav Spectrum Holdings, Inc., for
    Assignments of Authorization and Transfers of Control to Access 220,
    LLC, FCC File No. 0000846169; Wireless Telecommunications Bureau
    Assignment of Authorization and Transfer of Control Applications
    Action, *Public Notice*, Report No. 1230 (rel. July 10, 2002). The
    assignment of licenses was consummated on August 27, 2002. *See*
    Required Notification of Access 220, LLC, FCC File No. 0001010959.

[^9]: Waiver Request at 3. The EAG (or regional) and EA licenses were
    auctioned under the 220-222 MHz Phase II rules and policies.

[^10]: Waiver Request at 8.

[^11]: Waiver Request at 15.

[^12]: Waiver Request at 14.

[^13]: Waiver Request at 15-16.

[^14]: Waiver Request at 14 n.30 (*citing* Appendix A to the Waiver
    Request).

[^15]: Waiver Request at 16-17.

[^16]: Intek License Acquisition Corp. Request for Waiver and
    Consolidation of 220 MHz Construction Requirements, *Memorandum
    Opinion and Order*, 16 FCC Rcd 16431 (2001) (*Intek Waiver Order*).

[^17]: Waiver Request at 18.

[^18]: Waiver Request at 4-5.

[^19]: Waiver Request at 6-8.

[^20]: *See* Wireless Telecommunications Bureau Seeks Comment on Access
    220, LLC Request for Waivers to Provide Band Management Services
    Utilizing Licenses in the 220-222 MHz Band, *Public Notice*, DA
    02-1939 (rel. Aug. 6, 2002) ("*Notice*").

[^21]: The commenters are listed in Appendix A hereto.

[^22]: Waiver Request at 2.

[^23]: Waiver Request at 2.

[^24]: Waiver Request at 2.

[^25]: Letter to Thomas J. Sugrue, Chief, Wireless Telecommunications
    Bureau, Federal Communications Commission, from Mark E. Crosby,
    President, Access Spectrum, LLC, re Access Spectrum, LLC Annual
    Report on Spectrum Utilization (dated Oct. 1, 2002). Nextel 700
    Guard Band Corporation authorized operation under one of its
    licenses for the period January 28, 2002 through March 1, 2002, by
    the 2002 Olympic Committee in the Salt Lake City, Utah area. Nextel
    700 Guard Band Corporation Annual Guard Band Manager Report (dated
    Oct. 1, 2002).

[^26]: Waiver Request at 2.

[^27]: *See* Waiver Request at 14-16.

[^28]: 47 C.F.R. § 1.925.

[^29]: 47 C.F.R. § 1.3.

[^30]: Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, *Second Report and
    Order*, 15 FCC Rcd 5299 (2000).

[^31]: *See, e.g.,* Amendment of Part 90 of the Commission's Rules To
    Provide for the Use of the 220-222 MHz Band by the Private Land
    Mobile Radio Services, *Report and Order*, 6 FCC Rcd 2356, 2358
    (1991).

[^32]: Amendment of Part 90 of the Commission's Rules To Provide for the
    Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, *Second Memorandum Opinion and Order and Third Notice of
    Proposed Rulemaking*, 11 FCC Rcd 188, 193 (1995).

[^33]: Waiver Request at 8. *See also* ITA Comments at 4 ("Allowing a
    band manager licensing scheme in the 220-222 MHz band, would achieve
    the same benefits of the 700 MHz band, help achieve the goal of
    flexibility much like the government transfer bands, promote the
    public interest and maximize the usage and value of the spectrum.");
    Motorola Comments at 2 ("In Motorola's view, grant of the requested
    waivers will serve the public interest by permitting Access 220 to
    provide radio users additional flexibility, which will allow more
    efficient use of the 220 MHz band and thereby fulfill one of the
    Commission's primary allocation policies."); UTC Comments at 7 ("UTC
    emphasizes that the band manager framework, allowing users to build
    and operate their own systems through contractual agreement with the
    licensee, offers a much better tailored service to PLMR users such
    as some utilities than traditional commercial networks.").

[^34]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934, as Amended; Promotion of Spectrum Efficient
    Technologies on Certain Part 90 Frequencies, *Report and Order and
    Further Notice of Proposed Rulemaking*, 15 FCC Rcd 22709, 22729
    (2000).

[^35]: This waiver is granted only for the authorizations included in
    the underlying Waiver Request. Because a waiver is associated with a
    specific call sign, and given the nature of our fees and application
    forms, Access 220 will need to request equivalent waiver relief for
    any authorizations not specifically included within the terms of
    this order.

[^36]: The Commission will consider any future requests for waiver of
    the 220 MHz rules on their merits. Contrary to the fears of one
    commenter, *see* Data Comlink Comments at 5, nothing in this action
    serves as "precedent to allow other licensees holding
    location-specific Phase I, nationwide Phase I, regional Phase II,
    and national Phase II to use whatever modes of operation or system
    deployment techniques as they please, regardless of the potential
    for co-channel, adjacent channel, and other potential interference
    types."

[^37]: *See* Data Comlink Comments at 9-12; LMS Wireless Reply Comments
    at 6-8. We note that the North Carolina Electric Membership
    Corporation generally endorses the comments of Data Comlink.

[^38]: *See* Waiver Request at 4-5.

[^39]: 47 C.F.R. § 27.602.

[^40]: 47 C.F.R. § 27.603(a).

[^41]: 47 C.F.R. §§ 27.602(g), 27.603(b).

[^42]: 47 C.F.R. § 27.603(c).

[^43]: 47 C.F.R. § 27.606.

[^44]: 47 C.F.R. § 27.607(b), (c).

[^45]: 47 C.F.R. § 27.601(c)(1).

[^46]: 47 C.F.R. § 27.66.

[^47]: 47 C.F.R. § 27.601(e); *see* 47 C.F.R. § 27.66(a).

[^48]: There are no comparable limits on the number of 220 MHz licenses
    a single entity may hold.

[^49]: Access 220 states that it is committed to complying with the
    applicable technical standards of Subpart I of Part 90 of the
    Commission's rules and all relevant technical and operational
    requirements applicable to operations in the 220-222 MHz band. *See*
    Waiver Request at 5-6; Access 220 Reply Comments at 7-10.

[^50]: *E.g.*, Data Comlink Comments at 4-5; Texas License Consultants
    Comments at 2-3; Bizcom Reply Comments at 5-6.

[^51]: Amendment of Part 90 of the Commission's Rules To Provide for the
    Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, *Third Report and Order; Fifth Notice of Proposed
    Rulemaking*, 12 FCC Rcd 10943, 10970 (1997).

[^52]: 47 C.F.R. § 90.733(d).

[^53]: Data Comlink Comments at 8.

[^54]: 47 C.F.R. § 90.715.

[^55]: 47 C.F.R. § 90.723.

[^56]: Data Comlink Comments at 5 ("Like the Internet Service Provider
    (ISP) business, we see the movement for band management as a
    precursor to Land Mobile Radio users having to become subscribers,
    just like Internet users.").

[^57]: 47 C.F.R. §§ 90.725, 90.769. Under section 90.725 of the
    Commission's rules, Phase I nationwide licensees must construct base
    stations having a minimum of five assigned nationwide channels, and
    must place those base stations into operation: (1) in at least ten
    percent of the geographic areas designated in the application within
    two years of the initial license grant, including base stations in
    at least seven urban areas listed in section 90.741; (2) in at least
    forty percent of the geographic areas designated in the application
    within four years of the initial license grant, including base
    stations in at least twenty-eight urban areas listed in section
    90.741; (3) in at least seventy percent of the geographic areas
    designated in the application within six years of the initial
    license grant, including base stations in at least twenty-eight
    urban areas listed in section 90.741; and (4) in all geographic
    areas designated in the application within ten years of the initial
    license grant, including base stations in at least twenty-eight
    urban areas listed in section 90.741. 47 C.F.R. §90.725. The sites
    to be selected under section 90.741 of the Commission's rules are
    the "Top 100 Urban Areas for Phase I Nationwide Systems." 47 C.F.R.
    § 90.741. Section 90.769 of the Commission's rules requires Phase II
    nationwide licensees to construct a sufficient number of base
    stations to provide coverage to: (1) either a composite area of at
    least 750,000 square kilometers or 37.5 percent of the U.S.
    population within five years of the initial license grant; and (2)
    either a composite area of at least 1,500,000 square kilometers or
    75 percent of the U.S. population within ten years of the initial
    license grant. 47 C.F.R. § 90.769. Phase II nationwide licensees
    offering fixed services as part of their system may meet the
    construction requirements by demonstrating an appropriate level of
    "substantial service" at their five- and ten-year deadlines. 47
    C.F.R. § 90.769(2)(b). There is no requirement that the sites used
    to satisfy the Phase II requirements be selected from a
    pre-determined list.

[^58]: *Intek Waiver Order*, 16 FCC Rcd at 16434. Because the six-year
    deadline for the two licenses had already passed, the order extended
    the deadline to 30 days after the order's release, or October 13,
    2001.

[^59]: *Intek Waiver Order*, 16 FCC Rcd at 16435. This interim benchmark
    requirement has been satisfied.

[^60]: *Id*.

[^61]: *See* 47 C.F.R. § 90.767(b).

[^62]: Such a showing would have been required if Access 220's
    predecessor had planned to make a construction showing under section
    90.725, as permitted by the *Intek Waiver Order*.

[^63]: Because we decide to lift the integration requirement, it is not
    necessary to address Bizcom's statement that "the management and
    allocation of discrete spectrum leases in no way equates to the
    operation of a consolidated nationwide network." Bizcom Reply
    Comments at 5.