Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File Nos. 0000707917,        |
|                                  | *) | 0000826083,                  |
| MONET MOBILE NETWORKS, INC.      | ** |                              |
|                                  |    | > 0000826085                 |
| Request for Waiver and Extension | *  |                              |
| of the Broadband PCS             | *) |                              |
| Construction Requirements        | ** |                              |
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**ORDER**

**Adopted: April 9, 2002 Released: April 10, 2002**

By the Deputy Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau:

1.  In this Order, we address a request by Monet Mobile Networks, Inc.,
    on behalf of its wholly-owned subsidiaries, BWI Midwest LHC, Inc.,
    Monet Mobile Bismark LHC, Inc., and Monet Grand Forks LHC, Inc.
    (collectively, "Monet"), for waiver and extension of time to meet
    the construction requirements ("Extension Request") for the eleven
    broadband Personal Communications Services ("PCS") licenses listed
    in Attachment A to this Order.[^1] For the reasons set forth below,
    we grant the Extension Request with certain conditions described
    herein.

2.  Since its formation in 1999, Monet has acquired, through the
    post-auction secondary market, eleven 10 MHz D- and E-block
    broadband PCS licenses ("Licenses") located in Basic Trading Areas
    ("BTAs") throughout Minnesota, North Dakota, South Dakota, and
    Kansas ("Markets").[^2] Pursuant to section 24.203(b) of the
    Commission's rules, 10 MHz broadband PCS licensees are required to
    provide service to at least one-quarter of the population of their
    BTAs or make a showing of substantial service within five years of
    initial license grant.[^3] Based on their original grant date, the
    five-year deadline for the Licenses is April 28, 2002. On December
    20, 2001, Monet filed the Extension Request, asking for an
    additional eight months (*i.e*., from April 28, 2002 to December
    28, 2002) to deploy an advanced, mobile broadband network in the
    Markets that will offer wireless Internet access to consumers and
    small businesses.[^4]

3.  The underlying purpose of the broadband PCS construction
    requirements is to ensure that the PCS spectrum is used effectively
    and made available to as many communities as possible.[^5] An
    extension of time to meet the construction requirements may be
    granted, however, if the licensee shows that the failure to complete
    construction is due to causes beyond its control.[^6] Moreover, in
    recognizing that compliance with the broadband PCS construction
    requirements may at times be difficult, the Commission has stated
    that, in situations in which the circumstances are unique and the
    public interest would be served, it would consider waiving the PCS
    construction requirements on a case-by-case basis.[^7] Pursuant to
    section 1.925 of the Commission's rules, waiver may be granted if
    the petitioner establishes either that: (1) the underlying purpose
    of the rule would not be served or would be frustrated by
    application to the instant case, and that grant of the waiver would
    be in the public interest; or (2) where the petitioner establishes
    unique or unusual factual circumstances, application of the rule
    would be inequitable, unduly burdensome, or contrary to the public
    interest, or the applicant has no reasonable alternative.[^8]

4.  Based on the combination of a number of factors, we find that the
    totality of the record in this case supports a limited waiver of
    section 24.203(b) of the Commission's rules to allow Monet a brief
    extension of time to meet the five-year construction requirement for
    the Licenses. First, we conclude that strict application of the
    deadline in this case would not serve one of the statutory goals of
    performance requirements "to promote investment in and rapid
    deployment of new technologies and service."[^9] According to Monet,
    it plans to provide an advanced, high-speed broadband wireless data
    service that will provide consumers with Internet access at data
    rates comparable to DSL and cable modem services, with the added
    convenience of portable and mobile access.[^10] To provide this
    service, Monet proposes to use Qualcomm's 1xEV-DO "high data rate"
    ("HDR") wireless technology.[^11] Monet claims, however, that,
    despite entering into supply contracts last year, the earliest
    commitment date that it has received from its vendors for HDR
    equipment is July 2002.[^12] As we concluded in *Leap
    Wireless*,[^13] it would be counter-productive to require Monet to
    forgo deploying innovative, advanced broadband services, which can
    be accomplished in the very near term, and to instead install
    equipment that would provide services that are nearly identical to
    those already provided in these markets (*i.e*., digital voice
    communications). Therefore, combined with the other factors
    described below, we find that a limited waiver of the construction
    requirement is in the public interest to allow Monet eight months to
    purchase, install, test, and initiate service using the HDR
    equipment. Furthermore, because the availability of the HDR
    equipment is a key component of the grant of waiver, as a condition
    of the waiver, we will require Monet to submit a progress report no
    later than August 15, 2002, describing its timetable for
    constructing facilities in each market by the new deadline,
    including, but not limited to, the schedules for the delivery and
    deployment of the HDR infrastructure and subscriber equipment.

5.  Second, we find that an extension in this case will serve the public
    interest by meeting another statutory goal of performance
    requirements to ensure "prompt delivery of service to rural areas"
    and the Commission's stated goal of facilitating nationwide PCS
    services, especially in sparsely-populated areas.[^14] Monet asserts
    that all but one of the Licenses cover markets that are in the lower
    quartile of all BTAs in terms of population density, and that none
    of the Licenses covers a BTA with a total population within the top
    100 markets.[^15] Our own research supports these claims and also
    demonstrates that 8 of the 11 BTAs are in the lower 10 percent in
    terms of population density with only between 5 to 13 people per
    square mile.[^16] Moreover, 70 percent of all the counties that
    comprise the 11 BTAs are in the lower quartile of all U.S. counties
    in terms of total population and more than 75 percent of the BTAs'
    counties are in the lower quartile of counties in terms of
    population density. Based on this information, we find that Monet's
    network, if deployed as proposed, will bring service to rural and
    sparsely-populated areas. Furthermore, as we found in *Leap
    Wireless*, the fact that Monet intends to provide broadband
    services, and not traditional voice services, to these
    sparely-populated areas furthers the Commission's goal of bringing
    advanced services to rural areas.[^17] Because a limited extension
    would promote the provision of advanced services to these rural and
    sparsely-populated areas, we find that it is in the public interest.

6.  Finally, an extension is supported in this case by the diligence
    that Monet has demonstrated prior to the acquisition of the Licenses
    and the construction of the Markets following acquisition. Monet
    states that it began working with equipment vendors to develop the
    advanced, data-only system before it was authorized to operate the
    Licenses by requesting Special Temporary Authority from the
    Commission to begin experimental operations.[^18] Monet also points
    out that once the Commission approved the assignment of the Licenses
    to Monet, it was less than 18 months before the five-year deadline,
    with no construction having been undertaken prior to the
    assignment.[^19] Further, Monet states that it has identified and
    has finalized (or is the process of finalizing) leases for all the
    locations that it requires to provide service in the Markets,[^20]
    and has begun construction and operation in two other markets using
    lower data-rate technology (with the intent to upgrade to HDR once
    it is available) in an effort to bring service to market as soon as
    possible.[^21] We believe that such steps make it apparent that
    Monet is committed to implementing the HDR technology and deploying
    mobile, advanced broadband services to the Markets. Monet's
    diligence, combined with the other factors described herein,
    supports a limited waiver to allow Monet an additional eight months
    to construct the data system using HDR technology. Because this
    grant of waiver is based, at least in part, on the provision of
    advanced data-only service, we also condition the grant of waiver on
    the deployment of advanced data services in the Markets in
    substantially the same manner as described in the Extension Request.

7.  Accordingly, IT IS ORDERED, pursuant to section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and sections
    0.331, 1.925, and 1.946 of the Commission's rules, 47 C.F.R. §§
    0.331, 1.925, 1.946, that the Request for Waiver and Extension of
    the Broadband PCS Construction Requirements filed by Monet Mobile
    Networks, Inc., on behalf of its wholly-owned subsidiaries, on
    December 20, 2001 IS HEREBY GRANTED to extend the five-year
    construction deadline of the Licenses for a period of eight months,
    from April 28, 2002 to December 28, 2002, conditioned on the
    following: (1) Monet Mobile Networks, Inc. must provide a progress
    report to the Chief of the Commercial Wireless Division, Wireless
    Telecommunications Bureau, no later than August 15, 2002, describing
    the progress toward meeting the construction requirements for the
    Licenses, including, but not limited to, schedules for the delivery
    and deployment of the HDR infrastructure and subscriber equipment,
    and (2) the deployment of advanced data services in substantially
    the same manner described in the Extension Request that is the
    subject of the instant Order.

    FEDERAL COMMUNICATIONS COMMISSION

    Roger S. Noel

    Deputy Chief, Commercial Wireless Division

    Wireless Telecommunications Bureau

    **ATTACHMENT A**

**LICENSES SUBJECT TO THE EXTENSION REQUEST OF**

**MONET MOBILE NETWORKS, INC.**

  ---------- -------------------- ------------- --------------------- ----------
  **Market   **Market Name**      **Frequency   **Licensee Name**     **Call
  Number**                        Block**                             Sign**

  BTA001     Aberdeen, SD         D block       BWI Midwest LHC, Inc. KNLG247

  BTA037     Bemidji, MN          D block       BWI Midwest LHC, Inc. KNLH737

  BTA045     Bismarck, ND         E block       Monet Bismarck LHC,   KNLG791
                                                Inc.                  

  BTA138     Fargo, ND            E block       BWI Midwest LHC, Inc. KNLG803

  BTA166     Grand Forks, ND      D block       Monet Grand Forks     KNLH747
                                                LHC, Inc.             

  BTA199     Huron, SD            D block       BWI Midwest LHC, Inc. KNLG760

  BTA275     Manhattan-Junction   D block       BWI Midwest LHC, Inc. KNLG768
             City, KS                                                 

  BTA301     Mitchell, SD         D block       BWI Midwest LHC, Inc. KNLG773

  BTA464     Watertown, SD        D block       BWI Midwest LHC, Inc. KNLG786

  BTA477     Willmar-Marshall, MN E block       BWI Midwest LHC, Inc. KNLH770

  BTA481     Worthington, MN      D block       BWI Midwest LHC, Inc. KNLH771
  ---------- -------------------- ------------- --------------------- ----------

[^1]: *See* File No. 0000707917, filed December 20, 2001 and amended on
    March 26, 2002 (Extension Request). At the time the Extension
    Request was filed, all of the licenses that were part of the request
    were held by BWI Midwest, LHC, Inc. After the filing, Monet
    submitted a *pro forma* assignment for two of the licenses. As a
    result, Monet Mobile Bismark LHC, Inc. and Monet Grand Forks LHC,
    Inc. filed separate extension requests incorporating the original
    Extension Request. *See* File Nos. 0000826083 and 0000826085,
    respectively, filed March 27, 2002.

[^2]: The specific markets, frequency blocks, and call signs of the
    Licenses are listed in Attachment A.

[^3]: 47 C.F.R. § 24.203(b).

[^4]: Extension Request at 2.

[^5]: *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, GEN Docket No. 90-314, *Memorandum
    Opinion and Order*, 9 FCC Rcd. 4957, 5018 (1994) (*PCS MO&O*).

[^6]: *See* 47 C.F.R. §§ 1.946, 24.843. Section 1.946(e) includes
    examples of specific circumstances that would not warrant an
    extension of time to complete construction. 47 C.F.R. §
    1.946(e)(2)-(3).

[^7]: *PCS MO&O* at 5019, *citing* *WAIT Radio v. FCC*, 418 F.2d 1153
    (D.C. Cir. 1969).

[^8]: 47 C.F.R. § 1.925. Alternatively, pursuant to section 1.3, 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).

[^9]: 47 U.S.C. § 309(j)(4)(B).

[^10]: Extension Request at 2-3.

[^11]: *Id*. Monet states that the HDR technology will provide a 15-fold
    increase over currently available wireless technologies in the peak
    data-rate transmission between the network and the subscriber units
    and is also forward-compatible with many of the next generation
    (*i.e*., 3G) advanced wireless protocols. *Id*.

[^12]: *Id.* at 3.

[^13]: Leap Wireless International, Inc. Request for Waiver and
    Extension of Broadband PCS Requirements, *Memorandum Opinion and
    Order*, 16 FCC Rcd. 19573 (Comm. Wir. Div. WTB 2001) (*Leap
    Wireless*).

[^14]: *See*, *e.g*., *PCS MO&O* at 5018 ("ensure that PCS service is
    made available to as many communities as possible and that spectrum
    is used efficiently").

[^15]: Extension Request at 6.

[^16]: Our data is derived from populations figures in the 1990 U.S.
    Census.

[^17]: *See* Inquiry Concerning the Deployment of Advanced
    Telecommunications Capability to All Americans in a Reasonable and
    Timely Fashion, and Possible Steps to Accelerate Such Deployment
    Pursuant to Section 706 of the Telecommunications Act of 1996, CC
    Docket No. 98-146, *Second Report*, 15 FCC Rcd. 20913, 20996, 21008
    (2000).

[^18]: Extension Request at 2, 11.

[^19]: *Id*. at 10-11.

[^20]: *Id* at 11. Monet states that it also has entered into various
    other agreements necessary to provide service in the Markets,
    including master co-location agreements covering tower access,
    information service provider agreements covering Internet
    connectivity, and backhaul agreements to link the base stations to
    Monet's central data node. *Id*. at 11-12.

[^21]: *Id*. at 4, 12. Specifically, Monet states that it constructed a
    data-only network in the Sioux Falls, SD BTA (BTA422) and plans to
    construct a similar one in Fargo, ND BTA (BTA138) using Qualcomm's
    CDMA2000 1xRTT technology, which has a significantly lower data
    rates than HDR. *Id*. at 4. Monet claims the 1xRTT technology will
    not accommodate most of the broadband-specific data services, but
    will allow it to "fine tune the service administration segment of
    its business as well as certain basic data services (such as email)
    that will not require the high data transmission rates associated
    with HDR." *Id*.