**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

AGS TELECOM, INC. )

)

Request for Waiver of Section )

95.819 of the Commission\'s Rules )

Concerning Transfer of Control of )

Interactive Video and Data Service )

License KIVD0004 )

**ORDER**

**Adopted: February 18, 1999 Released: February 23, 1999**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

**INTRODUCTION**

. On April 13, 1998, AGS Telecom, Inc. (AGS), the holder of an
Interactive Video and Data Service (IVDS) license in Los Angeles, call
sign KIVD0004, filed an amended application for a pro forma transfer of
control (Amended Application) relating to its IVDS license.[^1] As a
part of its Amended Application, AGS seeks a waiver of Section 95.819 of
the Commission\'s Rules in connection with this transfer. By this
*Order*, we grant AGS\' waiver request and permit the *pro forma*
transfer of KIVD0004, as discussed herein.

**BACKGROUND**

. AGS\' license was granted on March 28, 1994, as a result of the IVDS
lottery conducted by the Federal Communications Commission (FCC) on
September 15, 1993.[^2] According to the FCC\'s licensing records, AGS
is currently controlled by Alberto Garza through an intermediary,
Tottenham Corp., a British Virgin Islands corporation (Tottenham
BVI).[^3] In the Original Application filed on June 20, 1997, Mr. Garza
sought to substitute Tottenham BVI, with Tottenham Holdings, S.A., a
Luxembourg company.[^4] Pursuant to its Amended Application filed on
April 13, 1998, AGS now seeks to transfer control of AGS from Tottenham
BVI to Tottenham Holdings, LLC, a Delaware corporation.[^5] Mr. Garza
will remain in control of AGS through his 100% ownership of Tottenham
Holding, LLC. In connection with the Amended Application, AGS requests a
waiver of Section 95.819(b) of the Commission\'s Rules[^6] which forbids
the transfer of IVDS licenses acquired by lottery until the five-year
construction benchmark has been met.

**DISCUSSION**

. Pursuant to Section 1.3 of the Commission\'s Rules, the Commission may
waive a provision of its rules \"if special circumstances warrant a
deviation from the general rule and such deviation will serve the public
interest.\"[^7] Section 95.819 of the Commission\'s Rules was intended
to help ensure that IVDS systems are actually built, to eliminate the
possibility of spectrum warehousing and to reduce the attractiveness of
the IVDS licenses as vehicles for speculation.[^8] On March 13, 1997,
the Wireless Telecommunications Bureau (Bureau) waived the three-year
construction benchmarks for IVDS lottery winners because of pending
petitions to change the IVDS service rules and in an effort to promote
flexible use of the spectrum.[^9] Therefore, to the extent that Section
95.819 was intended to help ensure that IVDS systems are constructed,
that purpose would not be hindered by allowing the pro forma transfer
under the

circumstances presented here given the waivers of the three-year
construction benchmark and the pending rulemaking regarding the IVDS
service rules.[^10]

. With respect to Section 95.819\'s purpose of curbing spectrum
speculation and warehousing, we believe that because the proposed
transfer is *pro forma*, grant of the requested waiver would not be
contrary to the general rule. In the subject transfer, Mr. Garza is
seeking to substitute a new intermediary holding company, Tottenham
Holdings, LLC, in place of the current intermediary, Tottenham BVI.[^11]
We note that there will be no change in actual control of AGS as a
result of the proposed transfer. Mr. Garza will retain the same
relationship to the new intermediary as he did to the old, and will
still be obligated to satisfy the five‑year construction benchmark.[^12]
Furthermore, we find that permitting the *pro forma* transfer in this
instance will serve the public interest by allowing AGS to accomplish
its IVDS build-out in a more efficient manner that we anticipate will,
in time, promote IVDS build-out in AGS\' IVDS service area.[^13]
Finally, we note that the Bureau previously has permitted a similar *pro
forma* transfer of control involving an IVDS lottery license.[^14] In
this connection, we conclude that grant of the subject waiver is
consistent with such action.

**CONCLUSION**

. We believe that the nature of the transfer of control proposed by AGS
constitutes a special circumstance warranting a deviation from the
general rule. We further believe that granting the waiver will not
undermine the policies embodied in the general rule, and may assist AGS
in its efforts to provide service to the public. We therefore find that
grant of the requested waiver is in the public interest.

**ORDERING CLAUSE**

6\. 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 Section
1.3 of the Commission\'s Rules, 47 C.F.R. § 1.3, the amended request of
AGS Telecom, Inc., for waiver of Section 95.819 of the Commission\'s
Rules, 47 C.F.R. § 95.819, for license KIVD0004, filed on April 13,
1998, IS GRANTED.

7\. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 310(d) of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and
310(d) and Section 95.821 of the Commission\'s Rules, 47 C.F.R. §
95.821, the *pro forma* transfer of control application filed by AGS
Telecom, Inc. on April 13, 1998, IS GRANTED.

8\. This action is taken under delegated authority pursuant to sections
0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^ AGS initially filed an application to transfer control on June
    20, 1997. Application for Consent to Transfer Control of Corporation
    Holding Station License, Form 703 (filed June 20, 1997) (Original
    Application). On April 13, 1998, AGS, through its counsel, amended
    the Original Application to change the identity of the transferee
    corporation. *See* Letter dated February 17, 1998, from John R. Cohn
    to James Moskowitz, Public Safety and Private Wireless Division
    (February 17 Letter); Amended Application for Consent to Transfer
    Control of Corporation Holding Station License, Form 703 Exhibit A
    (filed Apr. 13, 1998) (Amended Application).

[^2]: ^?^ *Public Notice*, Mimeo No. 42412 (Mar. 30, 1994).

[^3]: ^?^ Amended Application at Exhibit A.

[^4]: ^?^ Original Application Exhibit A.

[^5]: ^?^ Amended Application.

[^6]: ^?^ 47 C.F.R. § 95.819(b).

[^7]: ^?^ 47 C.F.R. § 1.3; Northeast Cellular Telephone Co. v. FCC, 897
    F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d
    1153, 1159 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972)).

[^8]: ^?^ Amendment of Parts 0, 1, 2, and 95 of the Commission\'s Rules
    to Provide for Interactive Video Data Services, RM-6196, *Memorandum
    Opinion and Order*, 1 FCC Rcd 4923, ¶ 13 (1994).

[^9]: ^?^ In the Matter of Requests By Interactive Video and Data
    Service Lottery Winners to Waive the March 28, 1997, Construction
    Deadline, DA 97-535, *Order*, 12 FCC Rcd 3181 at ¶ 5 (1997); *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, *Order, Memorandum Opinion and Order and Notice of
    Proposed Rulemaking*, 13 FCC Rcd 19064 (1998) (*218-219 NPRM*)
    (proposing changes to the IVDS service rules).

[^10]: ^?^ We note that our decision here in no way prejudices the
    Commission\'s decision on the transferability of IVDS lottery
    licenses in the context of the 218-219 NPRM proceeding. *See 218-219
    NPRM*, 13 FCC Rcd 19064 at ¶ 47.

[^11]: ^?^ Amended Application Exhibit A.

[^12]: ^?^ *See* 47 C.F.R. § 95.819.

[^13]: ^?^ *See* Lobaton Waiver, 10 FCC Rcd 11507; *see* *also* February
    17 Letter.

[^14]: ^?^ *See* Interactive Video and Data Service (IVDS) Licenses
    Request for Waiver of Section 95.819, DA 95-2175, *Order*, 10 FCC
    Rcd 11507 (1995). *See also* Letter from Michele Farquhar, Acting
    Chief, Wireless Telecommunications Bureau, to Karen Kincaid, counsel
    for AGS Telecom, dated March 15, 1996.