July 21, 2005

DA 05-1771

Rachael E. Schwartz

Joshua J Izenberg

Baker & McKenzie

815 Connecticut Ave., N.W.

Washington, D.C. 20006

Re: [Call Sign KIVD0009]{.underline}

Dear Counsel:

This letter is in response to a renewal application, request for waiver
of the substantial service and construction requirements of sections
95.831 and 95.833, respectively, of the Commission's rules,[^1] and
request for an extension of time for Station KIVD0009, filed by
Amerilink Interactive Services, Inc. (Amerilink) on March 25, 2004.[^2]
For the reasons set forth below, we deny Amerilink's requests for waiver
and extension, and dismiss its renewal application.

On March 28, 1994, through the lottery process, the Commission granted
Mr. Ignacio Santos De Hoyos a license to operate in the 218-219 MHz
service in Boston, MA under call sign KIVD0009, which he later *pro
forma* transferred to Amerilink. Pursuant to the Commission's rules in
effect when this license was granted, stations were required to be
placed into operation within five years from the date the license was
granted.[^3] Moreover, unless an extension of time to construct was
granted, the authorization would terminate automatically if the
construction and operation deadlines were not met.[^4] In September
1999, the Commission eliminated the three- and five-year construction
benchmarks, extended the term of all 218-219 MHz service licenses to ten
years from the date of their license grant, and adopted a "substantial
service" showing to be assessed at the expiration of the license term as
a condition for renewal.[^5] Accordingly, Amerilink was required to
provide substantial service within the service area by March 28, 2004.

In its license renewal application, Amerilink states that it has not
been able to provide 218-219 MHz service in the Boston, MA market.
Therefore, it has not met the requirements prescribed in sections 95.831
and 95.833 to minimally warrant a renewal of its license for Station
KIVD0009. However, Amerilink states that is hoping to sell the license
to a party that has successfully established 218-219 MHz service
networks, but explains that it has not been able to do so due to a
lengthy ongoing arbitration over an unsuccessful attempt to sell its
license to a third party.[^6] Amerilink states that it expects the
arbitration to conclude in its favor in the near future, which will
enable it to find a purchaser for the license quickly.[^7] Amerilink
argues that a waiver of the substantial service and construction
requirements of sections 95.831 and 95.833 is appropriate because the
public interest in promoting an effective and efficient use of the
218-219 MHz service spectrum would be better served by granting
Amerilink's renewal application rather than redistributing Amerilink's
license to another party. In the alternative, Amerilink requests a
two-year extension to meet its substantial service and construction
obligations with respect to Station KIVD0009, stating that failure to
meet the construction deadline was a result of difficulties that were
beyond its control.[^8]

[Amerilink's waiver request.]{.underline} Pursuant to section 1.925 of
the Commission's rules, a waiver may be granted if it is shown that: 1)
the underlying purpose of the rule(s) would not be served or would be
frustrated by application to the instant case, and that 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(s) would be inequitable, unduly burdensome or contrary to
the public interest, or the applicant has no reasonable alternative.[^9]
Amerilink does not present a compelling argument demonstrating how
application of sections 95.831 and 95.833 would frustrate the underlying
purpose of these rules. On the contrary, we believe that a grant of
Amerilink's waiver request would subvert the Commission's overall policy
goals to promote the rapid development of viable 218-219 MHz services.
It appears from the record that Amerilink was merely trying to sell the
rights to KIVD0009 and little or no effort was put towards offering
service with the license. Moreover, Amerilink presents no unique or
unusual factual circumstances that would warrant a waiver consistent
with the public interest, nor is there "good cause" shown, and therefore
the waiver request is hereby denied.

[Amerilink's request for an extension of time.]{.underline} Pursuant to
section 1.946 of the Commission's rules, an extension of time may be
granted if it is shown that "failure to meet the construction or
coverage deadline is due to involuntary loss of site or other causes
beyond \[the licensee's\] control." Further, section 1.946 states that
extensions will not be granted for failure to construct because the
licensee undergoes a transfer of control or intends to assign the
authorization.[^10] Amerilink points to a lawsuit against its majority
owner and difficulty in "securing workable technology" as causes beyond
its control that warrant granting an extension of two years. Amerilink
points out that the license is held up in arbitration due to its failed
attempt to sell the license and if relief is granted it intends to
transfer the license to a third party that will construct facilities.
Therefore, we do not find the lawsuit to be a compelling reason for an
extension of time. Moreover, Amerilink's inability to obtain the
necessary equipment is similarly unconvincing because, as Amerilink
itself admits, others have been able to do so.[^11] The request for an
extension of time is hereby denied.

Accordingly, for the reasons stated herein, pursuant to sections 1.925,
1.946, 1.955 and 95.831 of the Commission's rules, 47 C.F.R. §§ 1.925,
1.946, 1.955 and 95.831, we deny Amerilink's requests for waiver and
extension of time, dismiss its renewal application, and notify Amerilink
that the license KIVD0009 terminated automatically on March 28, 2004.
These actions are taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131 and 0.331.

> Sincerely,

Thomas Derenge

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

cc: Amerilink Interactive Services, Inc.

[^1]: *See* 47 C.F.R. §§ 95.831, 95.833.

[^2]: ULS File No. 0001671535. Petition of Amerilink Interactive
    Services, Inc. for Waiver of or Extension of Time to Comply With
    FCC's System Requirements for 218-219 Licensees, filed by Amerilink
    on March 25, 2004 (Amerilink Petition for Waiver and Extension).

[^3]: The Commission adopted the five-year license term in the *1992
    Allocation Report and Order* in the context of awarding licenses by
    lottery "to reduce any potential for trafficking in licenses by
    persons who have no real interest in constructing," and as
    "consistent with the license term used in most other private radio
    services." In the Matter of Amendment of Parts 0, 1, 2 and 95 of the
    Commission's Rules to Provide Interactive Video and Data services,
    GEN Docket No. 91-2, *Report and Order*, 7 FCC Rcd 1630, 1641 (1992)
    (*1992 Allocation Report and Order*), *on recon*., *Memorandum
    Opinion and Order*, 7 FCC Rcd 4923 (1992), *further recon*., *Second
    Memorandum Opinion and Order*, 8 FCC Rcd 2787 (1993). The five-year
    license term conformed to the five-year license term of the General
    Mobile Radio Service, 47 C.F.R. § 95.105, and the Personal Radio
    Service under which the 218-219 MHz service is classified, 47 C.F.R.
    § 95.1(c).

[^4]: *See* 47 C.F.R. §§ 1.946, 1.955.

[^5]: *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, RM-8951, *Report and Order and Memorandum
    Opinion and Order*, 15 FCC Rcd 1497 (1999).

[^6]: *See* Amerilink Petition for Waiver and Extension at 8.

[^7]: *See id.* at 6.

[^8]: *See id.* at 12.

[^9]: *See* 47 C.F.R. § 1.925. Alternatively, pursuant to section 1.3 of
    the Commission's rules, 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).

[^10]: 47 C.F.R. § 1.946(e)(1).

[^11]: *See* Amerilink Petition for Waiver and Extension at 11. *See
    also* San Francisco IVDS, Inc., *Memorandum Opinion and Order*, 20
    FCC Rcd 1960 (2005) (reinstating and renewing a 218-219 MHz service
    license where the licensee failed to renew its license in a timely
    fashion because it was actually offering service to customers at the
    time its license expired).