**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 08-60          |
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| Requests of Progeny LMS, LLC and | ) | File Nos. 0003422772 *et     |
| PCS Partners, L.P. for Waiver of | * | al.*                         |
| Multilateration Location and     | * |                              |
| Monitoring Service Construction  |   | File Nos. 0003469981 *et     |
| Rules                            | * | al.*                         |
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**ORDER**

**Adopted:** November 26, 2008 **Released:** November 26, 2008

By the Deputy Chief, Wireless Telecommunications Bureau:

# INTRODUCTION

1.  For the reasons stated below, the Wireless Telecommunications Bureau
    (Bureau) hereby grants the request of Progeny LMS, LLC (Progeny) and
    grants in part the request of PCS Partners, L.P. (PCS Partners) for
    additional time to meet the construction requirements that apply to
    their respective multilateration Location and Monitoring Service
    (M‑LMS) Economic Area (EA) licenses.[^1] Further, on our own motion
    and as explained in detail below, we grant additional time for each
    of the four other M‑LMS licensees in the 902-928 MHz band to meet
    their construction requirements. Specifically, we extend the
    five-year construction requirement to July 19, 2012 for any license
    that currently must meet that mid-term requirement on or before July
    19, 2012, and the ten-year construction requirement to July 19, 2014
    for any license that currently must meet that end-of-term
    requirement on or before July 19, 2014.

# BACKGROUND

2.  [Location and Monitoring Service (LMS) Generally]{.underline}. In
    1995, the Commission established LMS as a new service in the 902-928
    MHz band, under a hierarchy of spectrum usage rights.[^2]
    Specifically, this band is allocated on a primary basis to Federal
    radiolocation systems and to Industrial, Scientific, and Medical
    (ISM) equipment.[^3] Federal fixed and mobile services are allocated
    on a secondary basis to Federal radiolocation systems and ISM
    equipment. LMS licensees are allocated on a secondary basis to
    Federal users and to ISM devices and may not cause interference to
    and must tolerate interference from these users and devices.[^4]
    Amateur radio operations are allocated on a secondary basis to
    LMS.[^5] Finally, unlicensed devices are authorized under Part 15 to
    use the 902-928 MHz band, but such devices are not afforded
    interference protection rights and may not cause harmful
    interference to LMS licensees, amateur operations, or other licensed
    systems.[^6]

3.  M‑LMS systems are envisioned to track and locate objects over a wide
    geographic area by measuring the difference in time of arrival or
    phase of signals transmitted from a unit to a number of fixed
    points, or from a number of fixed points to the unit that is to be
    located. Non-multilateration LMS systems transmit data to and from
    objects passing through particular locations, and are licensed
    site-by-site.

4.  The Commission auctioned M‑LMS licenses in 1999 and 2001 (Auctions
    21 and 39).[^7] With three M‑LMS licenses (A, B and C Block) in each
    of the 176 EAs, there were 528 licenses available at auction. As a
    result of the two auctions and secondary market disaggregation, six
    entities currently hold a total of 614 M‑LMS licenses: Progeny holds
    228 licenses; Skybridge Spectrum Foundation (Skybridge)[^8] holds
    128 licenses and an associated holding company, Telesaurus Holdings
    GB, LLC (Telesaurus)[^9] holds 129 licenses (collectively, 257
    Havens licenses); Helen Wong-Armijo holds 84 licenses; PCS Partners
    holds 32 licenses; and FCR, Inc. (FCR) holds 13 licenses.

5.  Licensees must construct and operate a sufficient number of base
    stations to serve one-third and two-thirds of an EA's population
    within five and ten years of initial license grant,
    respectively.[^10] Alternatively, an M‑LMS licensee may make a
    showing of substantial service for its license at the five- and
    ten-year benchmarks.[^11] Under Sections 1.946(c) and 1.955(a)(2) of
    the Commission's rules,[^12] an M‑LMS license will terminate
    automatically as of the construction deadline if the licensee fails
    to meet the construction requirement, unless it obtains an extension
    of time to construct under Section 1.946(e),[^13] or a waiver of the
    construction requirement under Section 1.925.[^14]

6.  In 2003, Havens requested additional time to meet the five-year
    construction requirement. In 2004, the Bureau's Mobility Division
    (Division) granted Havens three additional years to meet the
    five-year requirement.[^15] In 2005, the Division granted FCR
    similar relief and, in 2006, the Division granted Progeny
    relief.[^16] Havens sought reconsideration of those extensions.[^17]
    On January 31, 2007, the Division: (1) denied Havens' petition for
    reconsideration; (2) granted requests for additional time to meet
    the five-year requirement filed by FCR and M‑LMS licensee Helen
    Wong-Armijo (Wong-Armijo); and (3) granted Telesaurus (for certain
    licenses) an additional two years to meet its five-year construction
    requirement, and an additional two years to meet its ten-year
    requirement.[^18] On March 2, 2007, Havens filed an application for
    review of the Division's denial of his petition for
    reconsideration,[^19] and also filed a petition for reconsideration
    of the Division's grant of additional time for FCR and Wong-Armijo
    to comply with their construction requirements.[^20] Those
    challenges are currently pending.

7.  When the Commission adopted the LMS rules in 1995, it expected that
    both M‑LMS and non-multilateration LMS systems would play a central
    role in emerging advanced radio transportation-related
    services.[^21] Non-multilateration systems have been put to use
    since 1995 with more than 1,200 currently active licenses issued to
    state and local governments, railroads, and other entities.[^22]
    Additionally, over the past five years, only non-multilateration LMS
    equipment has been submitted for authorization in the 900 MHz band,
    whereas there have been no equipment authorizations for M‑LMS.[^23]
    The record reflects, moreover, that no M‑LMS equipment is
    commercially available for current deployment in the United States
    and that no M‑LMS licensee provides service today. In March, 2006,
    the Commission commenced a currently pending rulemaking examining
    possible revisions to the M‑LMS rules.[^24]

8.  [Progeny Request]{.underline}. On May 1, 2008, Progeny filed a
    request for waiver of the Commission's M‑LMS construction rules with
    respect to Progeny's EA licenses.[^25] On May 5, 2008, the
    Commission released a Public Notice inviting comment on Progeny's
    request.[^26]

9.  In its request, Progeny seeks a waiver pursuant to Section 1.925 of
    the Commission's rules, or an extension of time pursuant to Section
    1.946(e) regarding the construction deadlines for its M‑LMS EA
    licenses that are set forth in Section 90.155(d).[^27] Specifically,
    Progeny requests an additional four years to meet its five-year
    construction deadline (from July 19, 2008 to July 19, 2012), and an
    additional four years to meet its ten-year construction deadline
    (from July 19, 2010 to July 19, 2014).[^28]

10. Progeny argues that a grant of its request would be in the public
    interest because Progeny has demonstrated a commitment since the
    1980s to providing M‑LMS service, including its potential
    application to homeland security and critical infrastructure
    industries that require a high degree of service reliability.[^29]
    Moreover, Progeny contends that a strict application of the
    construction requirement at this time would be contrary to the
    public interest.[^30]

11. Progeny presents several arguments that a waiver or extension is
    justified because of its difficulty in procuring M‑LMS equipment.
    Specifically, Progeny notes that the introduction of Global
    Positioning Satellite (GPS) receivers soon after the creation of the
    M‑LMS rules, including the widespread use of GPS technology in
    mobile phones pursuant to the Commission's E-911 requirements, has
    obviated much of the need for multilateration systems and
    discouraged investment by manufacturers.[^31] Progeny contends that
    no M‑LMS equipment is available for use in the United States,[^32]
    and that M‑LMS equipment development has been hindered by the
    hierarchical design of the band for shared usage, including the
    requirement under rule section 90.353(d) that M‑LMS operations must
    not cause unacceptable interference to unlicensed services in the
    band.[^33] Progeny argues that since all the other M‑LMS licensees
    have had the same difficulty in securing equipment, it is fair and
    equitable to grant Progeny further relief.[^34]

12. Progeny also contends that it has made diligent efforts to procure
    M‑LMS equipment, and provides details in an attachment for which
    Progeny sought confidential treatment.[^35] Havens argued that the
    attachment should not be granted confidential treatment, or in the
    alternative, should be provided in redacted form so that the record
    may provide the public with the fullest possible opportunity to
    comment on Progeny's showings.[^36] On August 15, 2008, the Division
    provided a redacted version of the attachment to all parties in this
    proceeding pursuant to a request of Havens under the Freedom of
    Information Act (FOIA).[^37] On August 25, 2008, Havens filed
    comments in response to the redacted attachment, while asking for
    additional time to comment further.[^38] However, Havens filed the
    comments and the request for additional time after the applicable
    filing deadline.[^39] Furthermore, Havens failed to serve the other
    parties to this proceeding with the request for additional
    time.[^40] Nonetheless, in response to the Havens filing, on August
    26, 2008, Progeny filed a response to Havens' comments, and an
    opposition to the request for additional time.[^41]

13. Finally, Progeny contends in its request that with a grant of an
    extension for the construction requirements, the spectrum will not
    lie fallow because the band currently is shared among Federal
    government radiolocation systems, ISM devices, licensed amateur
    radio operations and unlicensed Part 15 equipment.[^42] While
    Progeny also has stated that the shared nature of the band inhibits
    the manufacture of M‑LMS equipment, Progeny argues that the shared
    nature itself ensures that the spectrum will not be under-utilized,
    thus allaying the Commission's ongoing concern that spectrum could
    be warehoused without any benefit to the public.[^43]

14. In its objections to the Progeny request, Havens argues that Progeny
    fails to meet the Commission's due diligence standard for grant of
    construction deadline extension requests as articulated by the D.C.
    Circuit in *Advanced Communications v. FCC*.[^44] Havens also argues
    that Progeny initially obtained its licenses in violation of FCC
    rules because it was not a bidder in the auction, and had affiliates
    with attributable revenues that it did not disclose.[^45]
    Additionally, Havens argues, the Bureau erred when granting the
    first extension request on the basis that Progeny performed due
    diligence, and in turn, the second extension request merely cites to
    the former "due diligence."[^46] Havens further contends that
    Progeny lacks credibility and candor, and that it cannot assert that
    it is actually seeking equipment when also arguing in the pending
    rulemaking proceeding that the rules for said equipment and the
    service to be provided by the equipment are not viable.[^47]
    According to Havens, use of the spectrum by others on an unlicensed
    basis does not warrant grant of the extension request.[^48]

15. In separate comments, the Havens affiliate Skybridge argues that
    Progeny's extension request is based not on the current rules of
    showing due diligence, but rather on what it requests in the pending
    rulemaking, including the recognition of "funding...research" as due
    diligence.[^49] According to Skybridge, Progeny's assertion that its
    spectrum is being used by unlicensed devices introduces the concern,
    unaddressed, that Progeny's proposed changes to the M‑LMS service
    could cause interference to those devices.[^50] Skybridge contends,
    however, that it would be reasonable for the Commission to grant a
    blanket extension to all M‑LMS licenses past the date of a decision
    on the *LMS NPRM*.[^51]

16. The Radio Regulatory Technical Advisory Group within the Institute
    of Electrical and Electronics Engineers, Inc. 802 (IEEE 802.18)
    contends that Progeny's failure to meet its construction
    requirements should not be rewarded with a further extension.[^52]
    IEEE 802.18 states that M‑LMS no longer is a viable technology given
    the predominance of GPS, and there is no evidence that equipment
    manufacturers would have any incentive to provide Progeny with
    equipment to deploy M‑LMS services, given the ubiquity of the GPS
    infrastructure and technology.[^53] IEEE 802.18 concludes that
    Progeny's licenses should be canceled and the allocation for M‑LMS
    withdrawn.[^54]

17. The Wireless Communications Association International, Inc. (WCA)
    supports Progeny's request, reasoning that the justification for
    granting Progeny's request is similar to that for LMDS, where viable
    and affordable equipment is difficult to obtain; additional time is
    needed to develop the equipment given evolving business models;
    economic and technical constraints are beyond the licensee's
    control; and the public interest would be harmed by forcing
    licensees to deploy "stop-gap" systems that are merely meant to
    comply with the Commission's deadlines.[^55] WCA adds that the
    Commission similarly extended the five-year build-out deadline for
    Broadband Radio Service (BRS) Basic Trading Area licensees, given
    the pendency of a rulemaking that could change policies for that
    spectrum.[^56]

18. In its reply comments, Progeny argues that IEEE 802.18's comments,
    while urging denial of the extension request, actually support
    Progeny's argument by emphasizing that equipment manufacturers
    currently lack the incentive to enter the M‑LMS market.[^57] Progeny
    also contends that its delays in constructing its network are not of
    its own making, but rather the failure of equipment manufacturers to
    construct the necessary equipment despite Progeny's
    solicitations.[^58] Progeny adds that its request is not based on
    unavailability of equipment for a possible future service arising
    out of the pending rulemaking, but rather based upon current
    unavailability for the existing M‑LMS service.[^59] Finally, with
    respect to the claim that it secured its spectrum improperly,
    Progeny argues that it, as well as the Commission, have already
    addressed the alleged problems concerning the outcome of the 1999
    auction, and they do not warrant further consideration here.[^60]

19. In its reply comments, Skybridge argues that WCA failed to comment
    on the substance of the extension request and on the lack of
    availability of Progeny's confidential attachment.[^61] Skybridge
    adds that IEEE 802.18 erroneously argues that GPS has mooted the
    M‑LMS technology, ignoring the arguments that M‑LMS can use
    multilateration to improve the accuracy and reliability of GPS
    needed for road lane-based and other essential ITS radio
    services.[^62]

20. [PCS Partners Request]{.underline}. On June 11, 2008, PCS Partners
    filed a similar request for extension of time to meet the
    construction requirements for its EA licenses.[^63] In its request,
    PCS Partners seeks an extension of time pursuant to Section 1.946(e)
    regarding the construction deadlines for its M‑LMS EA licenses that
    are set forth in Section 90.155(d).[^64] Specifically, PCS Partners
    requests an additional four years to meet its five-year construction
    deadline, and an additional four years to meet its ten-year
    construction deadline.[^65] PCS Partners argues that there has been
    no material change in the equipment market since the Commission's
    recent determinations that a lack of M‑LMS equipment makes it
    impossible for licensees to meet the five-year construction
    requirement.[^66] PCS Partners further argues that its several
    discussions with equipment manufacturers have confirmed the lack of
    any equipment.[^67] PCS Partners also shares Progeny's view that
    spectrum sharing in the M‑LMS band has hindered the ability of
    licensees to secure equipment, given the requirement for M‑LMS
    licensees to demonstrate through field tests that equipment does not
    cause unacceptable interference to Part 15 unlicensed devices in the
    band, which themselves utilize a wide and changing array of power
    levels and technical parameters.[^68] Finally, PCS Partners asserts
    that there is nothing in the record of the pending LMS rulemaking
    proceeding (WT Docket No. 06-49) "to suggest that equipment will be
    available by \[its\] July 25 construction deadline." [^69]
    Specifically, PCS Partners notes that while ATLIS Wireless LLC
    (ATLIS) (a Havens-controlled entity) argues that TETRA technology
    may be feasible, even ATLIS concedes that "TETRA...to date is still
    not sold in the US due to Motorola's assertions that it will sue,
    for patent infringement, entities that buy and use TETRA in the
    US."[^70]

# DISCUSSION

21. After review of the record in this proceeding, and based upon the
    totality of the circumstances, we find that a grant of Progeny's
    request, and a partial grant of PCS Partners' request, for an
    extension of time to meet their respective build-out requirements,
    is warranted. We also find that the record supports the grant, on
    our own motion, of additional time for each of the other four M‑LMS
    licensees (Skybridge, Telesaurus, FCR and Wong-Armijo) to meet their
    respective build-out obligations. In so doing, we provide a more
    uniform time-frame for all of the M‑LMS EA licensees to meet their
    construction requirements. Specifically, we extend: (1) the
    five-year construction requirement to July 19, 2012 for any license
    that currently must meet that mid-term requirement on or before July
    19, 2012; and (2) the ten-year construction requirement to July 19,
    2014 for any license that currently must meet that end-of-term
    requirement on or before July 19, 2014.

22. We agree with commenters that M‑LMS equipment continues to be
    unavailable for use in the 900 MHz Band,[^71] and we find that this
    circumstance is a substantial factor warranting relief for M-LMS
    licensees. As noted above, over the past five years, no M-LMS
    equipment has been submitted for authorization in the 900 MHz
    band.[^72] In addition, no M‑LMS equipment is commercially available
    for current deployment in the United States, and no M‑LMS licensee
    provides service today. Indeed, as the Commission recognized in
    initiating the *LMS NPRM*, the significant restrictions on M-LMS
    operations in the Commission's current M-LMS rules may have
    contributed to the lack of M‑LMS equipment and services being
    developed.[^73]

23. We also acknowledge the regulatory uncertainty engendered by the
    pending M-LMS rulemaking, which was initiated as a substantial
    examination of the current rules to determine whether new approaches
    could facilitate more efficient use of the M-LMS Band.[^74] The
    Commission recently discussed regulatory uncertainty as a factor
    supporting the grant of an extension request of MariTEL, Inc. in the
    VHF Public Coast service ("*MariTEL*").[^75] In *MariTEL*, the
    Commission stated that it, "as a general matter, has denied requests
    for waivers and/or extensions of compliance deadlines that are based
    on alleged regulatory uncertainty."[^76] However, in granting
    MariTEL relief, the Commission stated that "in this unique context,
    the regulatory uncertainly engendered by the \[Notice of Proposed
    Rulemaking\] is a factor warranting an additional extension of
    MariTEL's five-year build-out deadlines."[^77] Similarly, we find
    here that the pendency of the *LMS NPRM* potentially revisiting the
    M-LMS rules, along with the demonstrated lack of available M-LMS
    equipment, is a factor warranting a further extension of time for
    all M‑LMS licensees.

24. Turning to Havens' Petition to Deny filed against Progeny's
    Extension request, we find, as an initial procedural matter, that
    the Petition is barred by Section 309 of the Communications Act of
    1934.[^78] Section 309(d)(1) provides that any party in interest may
    file a petition to deny against any application to which 309(b)
    applies.[^79] Section 309(b), however, does not apply to an
    application for "extension of time to complete construction of
    authorized facilities."[^80] Although we are dismissing as
    procedurally defective the Petition to Deny, we note that Skybridge
    (a Havens affiliate) incorporated Havens' Petition to Deny into its
    comments,[^81] and we accordingly address the substance of Havens'
    Petition to Deny in considering Skybridge's comments.

25. Havens, citing *Advanced Communications*,[^82] argues that Progeny
    has failed to demonstrate requisite due diligence justifying an
    extension of time.[^83] We find that Havens' reliance on *Advanced
    Communications* is misplaced. There, the Court upheld a Commission
    decision denying a direct broadcast satellite (DBS) licensee a
    buildout extension because mere promotional efforts by the licensee
    were not sufficient when other licensees in the band were
    successfully providing service.[^84] Here, in the case of the
    Progeny/PCS Partners' requests before us, no M-LMS licensees are
    successfully providing service in the band, as noted above.

26. We also reject Havens' argument that no other M‑LMS licensee should
    be afforded relief in this band, absent a rulemaking, because no
    other M‑LMS licensee has met Havens' level of effort in seeking to
    have equipment manufacturers develop marketable equipment in the
    902-928 MHz band.[^85] Given the unusual circumstances in this band
    affecting all M‑LMS licensees, we do not find licensee due diligence
    to be a controlling factor in our determination that band-wide
    relief is warranted. In this regard, we do not find decisionally
    significant any of the detail provided by Progeny in its proprietary
    attachment, encompassing the information under seal as well as that
    available for public inspection in the redacted document.[^86] As
    explained above, we find more significant the evidence in the record
    that there currently is no commercially available M‑LMS
    equipment.[^87] In addition, we disagree with Havens that Progeny's
    and PCS Partners' comments in the pending M‑LMS rulemaking somehow
    undercut their requests for relief based on the existing rules,[^88]
    as a party may seek alternate forms of relief.

27. Turning to Havens' filings related to Progeny's proprietary
    attachment, as noted above, on August 15, 2008, the Bureau provided
    interested parties five business days (*i.e.*, until August 22,
    2008), to file comments on Attachment A to Progeny's Request.[^89]
    Havens filed a document captioned "Further Comments," which
    contained both comments and a motion for more time to comment on
    Attachment A, after the filing deadline.[^90] In order to ensure a
    complete record before us, we will treat the comment portion of
    Havens' late-filed Further Comments as an informal request for
    Commission action.[^91]

28. Havens claims in his Further Comments that Progeny holds no valid
    M-LMS licenses.[^92] We note that Havens and various
    Havens-controlled entities also raise this argument in more detail
    in other pending proceedings.[^93] The relief granted Progeny in
    this order is without prejudice to Havens' allegations concerning
    Progeny's status as an M-LMS licensee. Havens next argues that
    Attachment A does not demonstrate Progeny made sufficient efforts to
    develop M‑LMS equipment.[^94] As explained above, we do not rely on
    any assertion of Progeny in Attachment A regarding M‑LMS equipment
    development to support our decision that the public interest is
    served by granting band-wide relief in this proceeding. Accordingly,
    we need not address Havens' arguments regarding the sufficiency of
    such equipment development efforts.

29. We also reject Havens' request for additional time to comment on
    Attachment A (a single-page document). Havens untimely filed his
    request for additional time after comments were due on the
    Attachment, and he failed to serve the request on the parties to
    this proceeding as required by Section 1.46.[^95] In any event, as
    noted above, our decision in this proceeding does not flow from any
    assertion in Attachment A, but rather from the evidence---already in
    the record---that no M‑LMS equipment is available at this time.
    Similarly, we do not find Progeny's opposition to the Havens request
    decisionally significant.

30. We therefore grant Progeny's request for extensions of its mid-term
    and end-of-term construction benchmarks to July 19, 2012 and July
    19, 2014, respectively. We believe that these dates represent a
    reasonable amount of time to develop M‑LMS operations.[^96]
    Similarly, we extend PCS Partners' benchmarks to these dates, and we
    deny PCS Partners' request for relief to the extent that it seeks
    additional time beyond those dates. Further, as we are extending
    relief to each of the remaining M‑LMS licensees given the lack of
    commercially available equipment, we believe it is in the public
    interest to afford these licensees similar deadlines, with certain
    exceptions noted below, as those of Progeny and PCS Partners.
    Accordingly, we extend the five-year construction requirement to
    July 19, 2012 for any license that currently must meet that mid-term
    requirement on or before July 19, 2012, and the ten-year
    construction requirement to July 19, 2014 for any license that
    currently must meet that end-of-term requirement on or before July
    19, 2014.

31. We do note that several licenses held by Havens affiliates,
    Skybridge and Telesaurus, currently have end-of-term benchmarks in
    2017, and we find no basis to accelerate the required compliance
    dates resulting from the 2007 grant of these licenses. However,
    considering the significant regulatory relief that has been granted
    to M‑LMS licensees, we do not anticipate further extensions will be
    granted absent extraordinary circumstances. We also note that any
    relief granted herein, including the revised construction
    benchmarks, is subject to any Commission action in the pending
    rulemaking.

# ORDERING CLAUSES

32. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    1.925, 1.946 and 90.155(d) of the Commission's rules, 47 C.F.R. §§
    1.925, 1.946, 90.155(d), the request of Progeny LMS, LLC, filed on
    May 1, 2008, for a four-year extension of time to meet its current
    five- and ten-year construction requirements for its multilateration
    Location and Monitoring Service Economic Area licenses, File
    Nos. 0003422772--0003422999, and 0003423004-0003423231 IS GRANTED,
    and that the five-year construction deadline IS HEREBY EXTENDED
    until July 19, 2012, and the ten-year construction deadline IS
    HEREBY EXTENDED until July 19, 2014.

33. IT IS FURTHER ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    1.925, 1.946 and 90.155(d) of the Commission's rules, 47 C.F.R. §§
    1.925, 1.946, 90.155(d), the request of PCS Partners, L.P., filed on
    June 11, 2008, for a four-year extension of time to meet its
    original five- and ten-year construction requirements for its
    multilateration Location and Monitoring Service Economic Area
    licenses, File Nos. 0003469981--0003470012, IS GRANTED IN PART AND
    DENIED IN PART, and that the five-year construction deadline IS
    HEREBY EXTENDED until July 19, 2012, and the ten-year construction
    deadline IS HEREBY EXTENDED until July 19, 2014.

34. IT IS FURTHER ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    1.3, 1.925, 1.946 and 90.155(d) of the Commission's rules, 47 C.F.R.
    §§ 1.3, 1.925, 1.946, 90.155(d), FCR, Inc. BE GRANTED additional
    time to meet its current five- and ten-year construction
    requirements for its multilateration Location and Monitoring Service
    Economic Area licenses, Call Signs WPTH 901--WPTH 908 and WPOJ
    871--WPOJ 875, and that the five-year construction deadline IS
    HEREBY EXTENDED until July 19, 2012, and the ten-year construction
    deadline IS HEREBY EXTENDED until July 19, 2014.

35. IT IS FURTHER ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    1.3, 1.925, 1.946 and 90.155(d) of the Commission's rules, 47 C.F.R.
    §§ 1.3, 1.925, 1.946, 90.155(d), Skybridge Spectrum Foundation BE
    GRANTED additional time to meet its current five-year construction
    requirement for its multilateration Location and Monitoring Service
    Economic Area licenses at Call Signs WQHU 548--WQHU 675, and its
    current ten-year construction requirement for its multilateration
    Location and Monitoring Service Economic Area licenses at Call Signs
    WQHU 548--WQHU 642, and that the five-year construction deadline for
    the licenses identified above IS HEREBY EXTENDED until July 19,
    2012, and the ten-year construction deadline for the licenses
    identified above IS HEREBY EXTENDED until July 19, 2014.

36. IT IS FURTHER ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    1.3, 1.925, 1.946 and 90.155(d) of the Commission's rules, 47 C.F.R.
    §§ 1.3, 1.925, 1.946, 90.155(d), Telesaurus Holdings GB, LLC BE
    GRANTED additional time to meet its current five-year construction
    requirement for its multilateration Location and Monitoring Service
    Economic Area license, Call Sign WQGN 602, and that the five-year
    construction deadline IS HEREBY EXTENDED until July 19, 2012.

37. IT IS FURTHER ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    1.3, 1.925, 1.946 and 90.155(d) of the Commission's rules, 47 C.F.R.
    §§ 1.3, 1.925, 1.946, 90.155(d), Helen Wong-Armijo BE GRANTED
    additional time to meet her current five- and ten-year construction
    requirements for her multilateration Location and Monitoring Service
    Economic Area licenses, Call Signs WPTH 955--WPTH 999 and WPTI
    200--WPTI 238, and that the five-year construction deadline IS
    HEREBY EXTENDED until July 19, 2012, and the ten-year construction
    deadline IS HEREBY EXTENDED until July 19, 2014.

38. IT IS FURTHER ORDERED THAT, pursuant to Sections 4(i) and 309 of the
    Communications Act, as amended, 47 U.S.C. §§ 154(i) and 309, and
    Section 1.939 of the Commission's rules, 47 C.F.R. § 1.939, the
    Petition to Deny filed by Warren Havens, Telesaurus Holdings, GB
    LLC, Skybridge Spectrum Foundation *et. al*. on June 4, 2008 IS
    HEREBY DISMISSED.

39. IT IS FURTHER ORDERED THAT, pursuant to Sections 4(i) of the
    Communications Act, as amended, 47 U.S.C. §§ 154(i), and Section
    1.46(c) of the Commission's rules, 47 C.F.R.§ 1.46(c), the Motion
    for Extension of Time filed by Skybridge Foundation and Associates
    *et. al*. on August 25, 2008 IS HEREBY DISMISSED.

    FEDERAL COMMUNICATIONS COMMISSION

    Joel D. Taubenblatt\
    Deputy Chief, Wireless Telecommunications Bureau

[^1]: An M‑LMS licensee must cover one-third and two-thirds of an EA's
    population within five and ten years of initial license grant,
    respectively. *See* 47 C.F.R. § 90.155(d). Alternatively, an M‑LMS
    licensee may make a showing of substantial service in its license
    area at the five-year and ten-year benchmarks. *Id.*

[^2]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Report and
    Order*, 10 FCC Rcd 4695 (1995) (*LMS Report and Order*) (adopting
    rules encompassing the Automatic Vehicle Monitoring (AVM) service
    for which the Commission had adopted "interim" rules in 1974).

[^3]: 47 C.F.R. §§ 2.106, 18.301, 18.111(c).

[^4]: 47 C.F.R. § 90.353(a).

[^5]: 47 C.F.R. § 97.301.

[^6]: Under Part 15, unlicensed devices may not cause harmful
    interference to LMS licensees, amateur operations, or other licensed
    systems in the 902-928 MHz band. *See* 47 C.F.R. § 90.361. Users of
    Part 15 devices conforming to specified technical conditions under
    the safe harbor, however, are insulated from claims in the 902-928
    MHz band that such devices cause harmful interference to M‑LMS
    systems. *Id.*

[^7]: Location and Monitoring Service Auction Closes, Winning Bidders in
    the Auction of 528 Multilateration Licenses in the Location and
    Monitoring Service, *Public Notice,* 14 FCC Rcd 3754 (1999); Public
    Coast and Location and Monitoring Service Spectrum Auction Closes,
    Winning Bidders Announced, *Public Notice*, 16 FCC Rcd 12509 (2001).

[^8]: Warren C. Havens holds a controlling interest in Skybridge. We
    note that the 128 licenses held by Skybridge are the result of a
    disaggregation transaction from Havens' other licenses held by
    Telesaurus Holdings GB, LLC.

[^9]: Mr. Havens also holds a controlling interest in Telesaurus.

[^10]: 47 C.F.R. § 90.155(d).

[^11]: *Id.*

[^12]: 47 C.F.R. §§ 1.946(c), 1.955(a)(2).

[^13]: An extension of time to complete construction may be granted
    where the licensee demonstrates that the failure to complete
    construction is due to causes beyond its control. 47 C.F.R. § 1.946.

[^14]: Under Section 1.925, a waiver may be granted provided 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, that application of the rule would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the applicant has no reasonable alternative. 47 C.F.R. § 1.925.

[^15]: Request of Warren C. Havens for Waiver of the Five-Year
    Construction Requirement for his Multilateration Location and
    Monitoring Service Economic Area Licenses, *Memorandum Opinion and
    Order*, 19 FCC Rcd 23742 (2004) (*Havens M‑LMS Order*).

[^16]: Request for Extension of Five-Year Construction Requirement,
    *Letter*, 20 FCC Rcd 4293 (2005) (*FCR Order*); Request of Progeny
    LMS, LLC for a Three-Year Extension of the Five-Year Construction
    Requirement for its Multilateration Location and Monitoring Services
    Economic Area Licenses, *Memorandum Opinion and Order*, 21 FCC Rcd
    5928 (2006) (*Progeny Order*).

[^17]: *See* Warren C. Havens, Telesaurus Holdings GB, LLC,
    Telesaurus-VPC, LLC and AMTS Consortium LLC, Petition for
    Reconsideration or Alternative Action, Erratum (filed Apr. 1, 2005);
    Warren C. Havens, Telesaurus Holdings GB, LLC, Telesaurus-VPC, LLC
    and AMTS Consortium LLC, Petition for Reconsideration or Alternative
    Action, Errata Version (filed June 23, 2006).

[^18]: Multilateration Location and Monitoring Service Construction
    Requirements, *Order on Reconsideration and Memorandum Opinion and
    Order*, 22 FCC Rcd 1925 (2007) ("*LMS Recon Order*"). We note again
    that Havens has a controlling interest in Telesaurus. *See supra*
    note Error: Reference source not found.

[^19]: Warren Havens and Telesaurus Holdings GB LLC, Application for
    Review of Request of Progeny LMS, LLC for a Three-Year Extension of
    the Five-Year Construction Requirement for its Multilateration
    Location and Monitoring Services Economic Area Licenses, Grant of
    Request for Extension of Five-Year Construction Requirement for FCR,
    Inc.'s Multilateration Location and Monitoring Services Economic
    Area Licenses (filed Mar. 2, 2007).

[^20]: AMTS Consortium LLC, Telesaurus VPC LLC and Intelligent
    Transportation and Monitoring Wireless LLC, Petition for
    Reconsideration of Request of Helen Wong-Armijo for a Three-Year
    Extension of the Five-Year Construction Requirement for her
    Multilateration Location and Monitoring Services Economic Area
    Licenses, FCR, Inc.'s Requests for Extension of Time for its
    Multilateration Location and Monitoring Services Economic Area
    Licenses (filed Mar. 2, 2007).

[^21]: *LMS Report and Order*, 10 FCC Rcd at 4698 ¶ 5.

[^22]: The total number of non-multilateration LMS licenses is based on
    a review of the Commission's Universal Licensing System as of
    November 26, 2008.

[^23]: Based on a staff search, as of November 26, 2008, at
    https://fjallfoss.fcc.gov/oetcf/eas/reports/GenericSearch.cfm.

[^24]: Amendment of the Commission's Part 90 Rules in the 904-909.75 and
    919.75-928 MHz Bands, WT Docket No. 06-49, *Notice of Proposed
    Rulemaking*, 21 FCC Rcd 2809 (2006) (*LMS NPRM*).

[^25]: Progeny LMS, LLC Request for Waiver and Limited Extension of Time
    (filed May 1, 2008) ("Progeny Request").

[^26]: Wireless Telecommunications Bureau Seeks Comment on Request by
    Progeny LMS, LLC for Waiver of Location and Monitoring Service (LMS)
    Construction Rule, WT Docket No. 08-60, *Public Notice*, 23 FCC Rcd
    7368 (2008). Comments were due June 4, 2008, and reply comments were
    due June 19, 2008.

[^27]: Progeny Request at 1.

[^28]: *Id.* As discussed earlier, Progeny's five-year construction
    deadline had been previously extended by three years, from July 19,
    2005, to July 19, 2008, as a result of the Division's 2006 waiver
    grant. *See supra* note Error: Reference source not found.

[^29]: Progeny Request at 3, 4.

[^30]: *Id.* at 4.

[^31]: *Id.* at 6; *c.f.* Comments of IEEE 802.18 at 2 (filed June 3,
    2008) ("IEEE Comments").

[^32]: Progeny Request at 7, citing *LMS Recon Order*, 22 FCC Rcd at
    1926 ¶ 5.

[^33]: Progeny Request at 9, 10, citing 47 C.F.R. § 90.353(d).

[^34]: Progeny Request at 10, 11.

[^35]: *See id.* at 12; Letter from Bruce A. Olcott and Joshua T. Guyan,
    counsel for Progeny LMS, LLC, to Marlene Dortch, Secretary, FCC,
    Progeny LMS, LLC Request for Confidential Treatment; Request for
    Waiver and Limited Extension of Time (filed May 1, 2008).

[^36]: *See* Warren Havens, Telesaurus Holdings GB LLC, Skybridge
    Spectrum Foundation, Joint Petition to Deny at 10 (filed June 2,
    2008) ("Havens Petition to Deny"); Comments of Skybridge Foundation
    and Associates at 1, 2 (filed June 4, 2008) ("Skybridge Comments").

[^37]: *See* Letter from Lloyd W. Coward, Deputy Chief, Mobility
    Division, Wireless Telecommunications Bureau, to Warren Havens,
    President, Skybridge Spectrum Foundation, and Jimmy Stobaugh,
    General Manager, Skybridge Spectrum Foundation, FOIA Control. No.
    2008-613, WT Docket 08-60 (dated Aug. 15, 2008) ("FOIA Letter").

[^38]: Warren C. Havens, Skybridge Spectrum Foundation, Telesaurus
    Holdings GB LLC & Associates, Intelligent Transportation &
    Monitoring Wireless LLC, AMTS Consortium LLC, Telesaurus VPC LLC,
    Further Comments (Based on the Recently Released Redacted Attachment
    A) (filed Aug. 25, 2008) ("Havens Further Comments").

[^39]: The Bureau provided Havens and all other parties to WT Docket
    08-60 five business days from the date of the letter ruling (August
    15, 2008) to comment on the redacted attachment; comments were
    therefore due before midnight, Eastern Time, August 22, 2008. *See*
    FOIA Letter at 2, *supra* note Error: Reference source not found,
    and 47 C.F.R. § 1.4(f). However, the Havens Further Comments were
    received by the Commission's Electronic Comment Filing System (ECFS)
    after the August 22, 2008 deadline.

[^40]: *See* 47 C.F.R. § 1.47.

[^41]: Progeny LMS, LLC, Response of Progeny LMS, LLC and Opposition to
    Request for Additional Time (filed Aug. 26, 2008). In its response
    to Havens' Further Comments, Progeny maintains that the attachment
    is consistent with its extension request, which is based upon the
    unavailability of M-LMS equipment under the existing rules rather
    than under any proposed rules. *Id.* at 5, 6. Progeny also objects
    to the request for additional time, disagreeing with Havens that a
    full 30 days is required for comment on the attachment as an
    "initial pleading," and that the attachment's reference to an
    earlier *ex parte* necessitates more time for analysis. *Id.* at
    2-5.

[^42]: Progeny Request at 14.

[^43]: *Id.*

[^44]: Havens Petition to Deny at 6, citing *Advanced Communications
    Corp. v. FCC*, 84 F.3d 1452, 318 U.S. App. D.C. 78 (1996)
    (Commission's anti-warehousing policy relies on enforcement of due
    diligence rules, where totality of circumstances includes efforts
    made and not made together with extant difficulties within ultimate
    goal of service to the public).

[^45]: Havens Petition to Deny at 6, 7.

[^46]: *Id.* at 7, 8. According to Havens, Progeny also fails to define
    the service and equipment it suggests it is seeking but cannot get,
    and fails to show that it is pursuing the deployment of M‑LMS, which
    has been defined as an Intelligent Transportation System (ITS) radio
    service with a construction requirement that includes vehicle
    multilateration. *Id.* at 8, 9.

[^47]: *Id.* at 9.

[^48]: *Id.* at 10.

[^49]: Skybridge Comments at 3, 4.

[^50]: *Id.* at 4, 5.

[^51]: *Id.* at 5. In further separate comments, Skybridge argues that
    although Section 1.933(d)(5) provides that construction deadline
    extension requests need not be placed on public notice, Progeny's
    initial extension request was placed on public notice (regardless of
    whether its subsequent pleading was filed confidentially), and
    Progeny arguably is not seeking an extension under the current rules
    but rather under proposed changes to the rules being considered in
    the related *LMS NPRM*. Supplemental Comments of Skybridge
    Foundation and Associates at 1, 2 (filed June 4, 2008) ("Skybridge
    Supplemental Comments").

[^52]: IEEE Comments at 2.

[^53]: *Id.*

[^54]: *Id.*

[^55]: Comments of Wireless Communications Association International,
    Inc. at 1-3 (filed June 4, 2008) ("WCA Comments").

[^56]: *Id.* at 3.

[^57]: Reply Comments of Progeny LMS, LLC at 2, 3 (filed June 19, 2008)
    ("Progeny Reply Comments").

[^58]: *Id.* at 5, 6.

[^59]: *Id.* at 6, 7.

[^60]: *Id.* at 7.

[^61]: Reply Comments of Skybridge Foundation and Associates at 1 (filed
    June 19, 2008) ("Skybridge Reply Comments").

[^62]: *Id.* at 1, 2.

[^63]: PCS Partners, L.P. Request for Extension of Time (filed June 11,
    2008) ("PCS Partners Request").

[^64]: *Id.* at 2.

[^65]: *Id.*

[^66]: *Id.* at 4, citing *LMS Recon Order, supra* note Error: Reference
    source not found.

[^67]: PCS Partners Request at 4.

[^68]: *Id.* at 5-6, citing *Progeny Order*, 21 FCC Rcd at 5932 ¶ 13.

[^69]: PCS Partners Request at 6. We note that PCS Partners, contending
    that it has made diligent efforts to procure M‑LMS equipment,
    provides details in a proprietary attachment for which PCS Partners
    has sought confidential treatment. *See id.* at 4; PCS Partners,
    L.P., Confidential Treatment Requested, Att. 1-A (filed June 11,
    2008). In granting relief, we do not rely on any of the detail
    provided in PCS Partners' proprietary attachment, just as we find
    herein that Progeny's proprietary attachment is not decisional. *See
    infra* para. 25; *see also supra* note Error: Reference source not
    found.

[^70]: PCS Partners Request at 6.

[^71]: *See* Progeny Request at 9, 10; PCS Partners Request at 4-6; WCA
    Comments at 2, 3.

[^72]: Based on a staff search, as of November 26, 2008, at
    https://fjallfoss.fcc.gov/oetcf/eas/reports/GenericSearch.cfm.

[^73]: *LMS NPRM*, 21 FCC Rcd at 2816, ¶ 18.

[^74]: *LMS NPRM*, 21 FCC Rcd at 2810, ¶ 1.

[^75]: *See* MariTEL, Inc. Request to Extend Construction Deadline for
    Certain VHF Public Coast Station Geographic Area Licenses,
    *Memorandum Opinion and Order*, 22 FCC Rcd 14074, 14085 ¶ 19 (2007).

[^76]: *Id. at* 14085 ¶ 19.

[^77]: *Id.* at 14088-89 ¶ 26.

[^78]: 47 U.S.C. § 309.

[^79]: 47 U.S.C. § 309(d)(1).

[^80]: 47 U.S.C. § 309(c)(2)(D).

[^81]: *See* Skybridge Comments at 1.

[^82]: *See supra* note Error: Reference source not found.

[^83]: Havens Petition to Deny at 6, citing *Advanced Communications
    Corp. v. FCC*, 84 F.3d 1452, 318 U.S. App. D.C. 78 (1996).

[^84]: The Court relied on the Commission's explanation that, "\[w\]hile
    promotional efforts may be laudable, those efforts are not an
    adequate substitute for the concrete progress toward the
    construction and operation of a DBS system," and found no error in
    the Commission's conclusion that the licensee had "failed to
    demonstrate the required 'concrete progress.'" *See Advanced
    Communications*, 84 F.3d at 3.

[^85]: In fact, when analyzed under the *Advanced Communications* "due
    diligence" standard applicable to DBS licensees, but cited by Havens
    in the LMS context, Havens also arguably has failed to make
    "concrete progress" towards constructing and operating a system,
    given the resulting lack of available M-LMS equipment
    notwithstanding his "promotional efforts."

[^86]: *See supra* note Error: Reference source not found.

[^87]: We also note that Havens, without reference to any licensee's
    level of due diligence, supports in an opposing pleading the grant
    of a "blanket extension to all LMS-M \[sic\] licenses it deems
    currently valid for a substantial number of years past the date of a
    decision on the LMS-M \[sic\] NPRM." *See* Skybridge Comments at 5.

[^88]: Havens Petition to Deny at 9.

[^89]: *See supra* note 37.

[^90]: *See supra* notes Error: Reference source not found-Error:
    Reference source not found and associated text. We note that under
    Section 1.4(f) of the Commission's rules, documents filed
    electronically must be received by the Commission's electronic
    filing system before midnight on the filing date. *See* 47 C.F.R.
    § 1.4(f); Electronic Filing of Documents in Rulemaking Proceedings,
    GC Docket No. 97-113, *Report and Order*, 13 FCC Rcd 11322, 11331
    ¶ 19 (1998) ("*ECFS Order*"). Additionally, a time stamp mechanism
    is built into the Commission's Electronic Comment Filing System,
    including automatic notification to the commenter of the official
    filing date and time. *See ECFS Order*, 13 FCC Rcd at 11322 ¶ 20.
    Finally, we note that pleadings are considered to be filed upon
    their receipt by the Commission, rather than the time of attempted
    submission. *See* 47 C.F.R. § 1.7.

[^91]: *See* 47 C.F.R. § 1.41 (informal requests for Commission action).

[^92]: Havens Further Comments at 2-3. Havens made similar arguments in
    this proceeding in a document captioned "Petition to Deny," which he
    submitted with the Skybridge Comments.

[^93]: *See* *e.g*., *Ex Parte* of Telesaurus Holdings GB LLC, WT Docket
    06-49 (filed May 7, 2007); Petition for Reconsideration and, in the
    Alternative, Petition to Deny or Request Under Section 1.41, filed
    January 11, 2008 by Telesaurus Holdings GB LLC, Intelligent
    Transportation and MonitoringWireless LLC, AMTS Consortium LLC and
    Telesaurus-VPC LLC re: grant of transfer of control applications
    under ULS File Nos. 0003250058 and 0003274382.

[^94]: Further Comments at 3-4.

[^95]: *See* 47 C.F.R. § 1.46(c) (movants for extensions of time filed
    less than seven days prior to deadline must serve motion on other
    parties and orally notify them); *see also* JNE Investments, Inc.
    Request to Toll the Period to Construct Unbuilt Station KSDG(AM),
    Julian, California, *Memorandum Opinion and Order*, 23 FCC Rcd 623,
    628-629 ¶ 14 (2008).

[^96]: We note that the relief granted will in some cases extend
    build-out deadlines beyond a licensee's expiration date. However,
    today's action in no way extends an M‑LMS licensee's applicable
    license term.