Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 10153-CL-CP-93      |
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| Lanty L. Smith                   | ) |                              |
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| Request for a Limited Waiver of  | * |                              |
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> **ORDER**

**Adopted: February 29, 2000 Released: March 2, 2000**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

1\. In this Order, we deny Lanty L. Smith's Petition for Limited Waiver
(Petition) of sections 22.946, 22.947, and 22.949(a)(3) of the
Commission\'s rules.[^1] Under section 22.946 of the Commission's rules,
the first cellular licensee in markets 1-90 must commence service within
36 months of authorization, and the first licensee in all other markets
must commence service within 18 months of authorization. In addition,
all first cellular licensees have five years from authorization to
complete construction. All unserved area licensees must complete
construction and commence service within 12 months of authorization.
Smith, a Phase I unserved area cellular licensee, requests a waiver of
the requirement that he commence service within 12 months of
authorization. Smith requests that he be treated as the first licensee
in his market (Idaho 3-Lemhi Rural Service Area (RSA)). This would
entitle him to 18 months to commence service and five years to complete
construction. For the reasons set forth below, we deny the Petition.

2\. On May 24, 1991, the Mobile Services Division of the Common Carrier
Bureau[^2] terminated the cellular authorization for Danbury Cellular
Telephone Company, Station KNKN338, for the Block A cellular system in
the Idaho 3-Lemhi RSA.[^3] The Mobile Services Division determined that
the Idaho 3-Lemhi RSA would be treated as an unserved area.[^4] On
December 23, 1992, the Mobile Services Division issued a Public Notice
announcing the filing date for certain unserved areas, including the
Idaho 3-Lemhi RSA.[^5] Smith\'s application was selected at a lottery
held November 21, 1994.[^6] Because the Idaho 3-Lemhi RSA was deemed an
unserved area,[^7] the Commission classified Smith as a Phase I unserved
area permittee. Pursuant to the Commission\'s rules, Phase I unserved
area permittees must comply with the same requirements as RSA
permittees.[^8]

3\. In accordance with section 22.119 of the Commission\'s rules, a
waiver request may be granted if it is shown that (1) the underlying
purpose of the rule would not be served, or would be frustrated by
application to the instant case, and that a 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 would be inequitable, unduly burdensome or contrary to the public
interest, or the applicant has no reasonable alternative.[^9]

4\. Smith argues that his circumstances are unique and unusual because
he is deemed subject to the Phase I unserved area rules.[^10] He states
that out of the 956 RSA permits (wireline and non-wireline) authorized
or to be authorized, only six are subject to the more restrictive
unserved area rules.[^11] He argues that because he is the only
authorized carrier on the channel block in the Idaho 3-Lemhi RSA, his
situation is unlike that of a typical unserved area permit holder, who
is only required to provide coverage to a sparsely-populated market
area.[^12]

5\. Next, Smith argues that given his unique circumstances, application
of the more restrictive unserved area construction and build-out rules
would be inequitable, unduly burdensome and contrary to the public
interest.[^13] Smith contends that the unserved area 12-month
construction and service commencement rules, i.e., sections 22.946,
22.947, and 22.949, were promulgated under the assumption that Phase I
licensees would build and operate small systems of one or two cells in
markets where existing licensees had long been providing service.[^14]
Smith argues that to subject him to such restrictions penalizes him for
the failure of the prior permittee to build a system in the market.[^15]
Instead, Smith argues that he should be granted a five-year build-out
period because he is, in effect, the initial licensee in the
market.[^16]

6\. The purpose of the 12-month construction and service commencement
requirements for unserved area licensees is to expedite service to the
public.[^17] Allowing Smith 18 months to commence service and five years
to build out his cellular system would preclude other parties from
applying to provide service to the unserved areas of this RSA for at
least five years. The 12-month construction and service commencement
requirements in this case is consistent with the rules' purpose of
expediting service to the public. We therefore conclude that Smith has
not demonstrated that grant of this waiver is in the public interest, or
that there are unique or unusual factual circumstances sufficient to
justify grant of his waiver request.

7\. As required by section 22.119 of the Commission\'s rules, Smith has
failed to show that he is without alternatives absent the grant of his
waiver request. In accordance with section 22.949(b) of the
Commission\'s rules, Smith can file an unlimited number of Phase II
unserved area applications for his service area, commencing on the 121st
day after the grant of his Phase I license.[^18] He can therefore file
Phase II applications in any area of the RSA for which he could not
construct and operate within the one year period, as set forth in his
initial implementation plan.[^19] Finally, all participants in the
lottery were aware of these construction requirements prior to the
lottery and the grant of a waiver in this case would undermine the
integrity of those rules. We therefore find that a waiver in this case
would be contrary to the public interest.

8\. 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
0.331 and 22.119 of the Commission\'s rules, 47 C.F.R. §§ 0.331, 22.119,
the Petition for Limited Waiver of the Commission\'s Rules filed by
Lanty L. Smith on August 9, 1995 IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Paul D'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications

[^1]: ^?^ 47 C.F.R.§§ 22.946, 22.947, 22.949(a)(3).

[^2]: ^?^ The Mobile Services Division of the Common Carrier Bureau was
    responsible for cellular authorization at this time. Its cellular
    authorization functions were assumed by the Wireless
    Telecommunications Bureau in October 1994.

[^3]: ^?^ *See* Letter to Danbury Cellular Telephone Company from
    Gregory J. Vogt, Chief, Mobile Services Division (May 24, 1991).

[^4]: ^?^ *See* \"Termination of Cellular Authorization, \" *Public
    Notice* Report No. CL-91-157 (May 31, 1991).

[^5]: ^?^ *See* \"Dates And Filing Requirements For Applications For
    Cellular Radio Unserved Areas,\" *Public Notice*, Report No.
    CL-93-36 (Dec. 23, 1992) (December Public Notice).

[^6]: ^?^ *Id.* Smith\'s application was subsequently granted on June 2,
    1995. *See Public Notice*, CL-95-101 (June 2, 1995).

[^7]: ^?^ Unserved area is defined as geographic area that is not within
    the cellular geographic service area (CGSA) of any cellular system
    authorized to transmit on that channel block. *See* 47 C.F.R. §
    22.99.

[^8]: ^?^ *See* 47 C.F.R. § 22.946(a).

[^9]: ^?^ 47 C.F.R. § 22.119.

[^10]: ^?^ Petition at 3.

[^11]: ^?^ *Id.*

[^12]: ^?^ *Id.*

[^13]: ^?^ *Id.*

[^14]: ^?^ *Id.*

[^15]: ^?^ *Id.* at 4.

[^16]: ^?^ *Id.*

[^17]: ^?^ Amendment of Part 22 of the Commission\'s Rules to provide
    for filing and processing of Applications for Unserved Areas in the
    Cellular Service and to Modify Other Cellular Rules, *First Report
    and Order and Memorandum Opinion and Order on Reconsideration*, 6
    FCC Rcd. 6185, 6225, ¶ 96 (1991).

[^18]: ^?^ 47 C.F.R. § 22.949(b).

[^19]: ^?^ Smith was granted a Phase I major modification on October 23,
    1995. *See Public Notice*, CL-96-4, (Oct. 23, 1995). The October
    1995 modification permits exclusive expansion of the service area
    within the RSA and permits Smith another year to construct and
    commence service in the areas covered by the modification. The
    construction period expired in October 1996. The filing of the Phase
    I major modification gave Smith another eighteen months to build-out
    his system. *See* 47 C.F.R. § 22.949(a)(3).