**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER ON RECONSIDERATION,**

**AND MEMORANDUM OPINION AND ORDER**

**Adopted: January 31, 2007 Released: January 31, 2007**

By the Chief, Mobility Division, Wireless Telecommunications Bureau:

1.  For the reasons stated below, the Mobility Division (Division)
    hereby denies the petitions for reconsideration filed by Warren
    Havens (Havens)[^1] of the orders granting FCR, Inc. (FCR) and
    Progeny LMS, LLC (Progeny) three additional years to meet the
    five-year construction requirement for certain multilateration
    Location and Monitoring Service (M-LMS) Economic Area (EA)
    licenses.[^2] We also grant requests for additional time to meet the
    5-year requirement filed by various licenses. Further, on our own
    motion, we grant Telesaurus two additional years to meet the 5-year
    requirement for certain licenses (previously afforded more time to
    meet that requirement), and extend the 10-year requirement for such
    licenses two years.

    **I. BACKGROUND**

2.  In 1995, the Commission established LMS as a new service in the
    902-928 MHz band, [^3] which is shared by myriad users and allocated
    on a primary basis to federal radiolocation systems and Industrial,
    Scientific, and Medical (ISM) equipment. Federal fixed and mobile
    services are allocated next. M-LMS licensees are tertiary. Amateur
    radio operations are last in priority among licensed uses.[^4] Part
    15 unlicensed devices also intensively use the band.[^5]

3.  Multilateration LMS systems track and locate objects over a wide
    geographic area (*e.g.*, tracking a bus fleet) 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 (*e.g.*, automated tolls), and are licensed site-by-site.

4.  The Commission auctioned M-LMS licenses in 1999 and 2001 (Auctions
    21 and 39).[^6] 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.[^7] Under Sections 1.946(c) and 1.955(a)(2) of the
    Commission's rules,[^8] 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),[^9] or a waiver of the
    construction requirement under Section 1.925.[^10] In 2003, Havens
    requested more time to meet the 5-year construction requirement. The
    Division granted Havens three additional years to meet the 5-year
    requirement,[^11] and subsequently granted FCR and Progeny similar
    relief.[^12] In March 2006, the Commission commenced a rulemaking
    regarding possible refinements of the M-LMS rules,[^13] which is
    pending.

5.  When the Commission adopted 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.[^14]
    Non-multilateration systems flourished remarkably since 1995 with
    more than 2,000 sites licensed to state and local governments,
    railroads, and other entities. By contrast, no M-LMS licensee
    provides service today. The Commission's equipment authorization
    records, moreover, reveal that the FCC has approved only five M-LMS
    devices from 1996 to the present. And the record before us confirms
    that no viable M-LMS equipment is available for deployment in the
    United States today.

    **II. DISCUSSION**

6.  We deny Havens Petition for Reconsideration of the *FCR Order*.[^15]
    Foremost, as Havens acknowledges, there is no M-LMS equipment
    available for deployment in the United States. And, as noted in the
    *FCR Order*, "the unique sharing constraints presented by the M-LMS
    band have resulted in a lack of M-LMS equipment leaving FCR unable
    to fulfill its five-year construction requirement."[^16] We find no
    basis on the record before us to overturn the *FCR Order*.

7.  We deny Havens' Petition for Reconsideration of the *Progeny
    Order*.[^17] We note that the record demonstrates that Progeny made
    varied efforts to develop M-LMS equipment and applications, but to
    no avail. Factors that supported the grant of additional time to
    Havens apply equally to Progeny, including the lack of available
    M-LMS equipment make construction impossible,[^18] and complex
    spectrum sharing hindering the ability to secure such
    equipment.[^19]

8.  We have reviewed the request of Helen Wong-Armijo, filed September
    14, 2006, for three additional years to meet the 5-year requirement,
    and find that the failure to complete construction is due to causes
    beyond her control,[^20] and that the public interest would be
    served by granting her more time to construct.[^21] Further, based
    on the totality of the record, we find that strict application of
    the construction requirement would be contrary to the public
    interest, and that granting additional time to construct will serve
    the public interest.[^22]

9.  We have reviewed the request of FCR, filed September 14, 2006, for
    three additional years to meet the 5-year requirement for certain
    licenses, and find that the failure to complete construction is due
    to causes beyond its control,[^23] and that the public interest
    would be served by granting it a three-year extension of time.[^24]
    Further, based on the totality of the record, we find that strict
    application of the construction requirement would be contrary to the
    public interest, and that granting additional time to construct will
    serve the public interest.[^25]

10. We have reviewed FCR's request, filed January 18, 2007, for two more
    years to meet the 5-year requirement for five licenses previously
    afforded three additional years to meet that requirement. We find
    that the failure to complete construction is due to causes beyond
    its control,[^26] and that the public interest would be served by
    granting it additional time.[^27] Further, based on the totality of
    the record, we find that strict application of the construction
    requirement would be contrary to the public interest, and that
    granting additional time to construct will serve the public
    interest.[^28] We also, on our own motion, extend the 10-year
    requirement for such licenses by two years.

11. We have reviewed the request of Telesaurus, filed October 4, 2006,
    for three additional years to meet the 5-year requirement for
    certain licenses, and find that the failure to complete construction
    is due to causes beyond its control,[^29] and that the public
    interest would be served by granting it a three-year extension of
    time.[^30] Further, based on the totality of the record, we find
    that strict application of the construction requirement would be
    contrary to the public interest, and that granting additional time
    to construct will serve the public interest.[^31] We decline to find
    that Telesaurus's opposition to the pending rulemaking regarding
    possible refinements of the M-LMS rules warrants its request for
    more time to construct.

12. Finally, on our own motion, we grant Telesaurus two additional years
    to meet the 5-year requirement for certain licenses (previously
    afforded more time to meet the requirement). We take this action
    *sue sponte* because there is less than six months remaining for
    Telesaurus to meet the construction requirement and no M-LMS
    equipment is available to meet this obligation. We also, on our own
    motion, extend the 10-year requirement for such licenses by two
    years.

    **III. ORDERING CLAUSES**

13. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i), 303(r), and
    405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 405, and Section 1.106 of the Commission\'s Rules,
    47 C.F.R. § 1.106, that the Petition for Reconsideration or
    Alternative Action, of Telesaurus Holdings GB, LLC, et al., Erratum,
    April 4, 2005, and the Petition for Reconsideration of Telesaurus
    Holdings GB, LLC, et al., filed June 23, 2006, ARE DENIED.

14. IT IS FURTHER ORDERED, 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), that the request of FCR, Inc., filed on
    September 14, 2006, for a three-year extension of time to meet the
    five-year construction requirement for its multilateration Location
    and Monitoring Service Economic Area licenses, File Nos.
    0002752062 - 0002752069, IS GRANTED, and that the construction
    deadline is HEREBY EXTENDED until October 5, 2009.

15. IT IS FURTHER ORDERED, 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), that the request of FCR, Inc., filed on
    January 18, 2007, for additional time to meet the five-year
    construction requirement for its multilateration Location and
    Monitoring Service Economic Area licenses, File Nos. 0002882775 -
    0002882779, IS GRANTED, and that the construction deadline is HEREBY
    EXTENDED until July 14, 2009.

16. IT IS FURTHER ORDERED, 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), that FCR, Inc., BE GRANTED
    additional time to meet the ten-year construction requirement for
    multilateration Location and Monitoring Service Economic Area
    licenses, Call Signs WPOJ871 - WPOJ875, and that the construction
    deadline is HEREBY EXTENDED until July 14, 2011.

17. IT IS FURTHER ORDERED, 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), that the request of Helen Wong-Armijo,
    filed on September 14, 2006, for a three-year extension of time to
    meet the five-year construction requirement for certain
    multilateration Location and Monitoring Service Economic Area
    licenses, File Nos. 0002751940 - 0002752023, IS GRANTED, and that
    the construction deadline is HEREBY EXTENDED until October 5, 2009.

18. IT IS FURTHER ORDERED, 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), that the request of Telesaurus Holdings GB,
    LLC, filed on October 4, 2006, for a three-year extension of time to
    meet the five-year construction requirement for certain
    multilateration Location and Monitoring Service Economic Area
    licenses, File Nos. 0002775136 - 0002775178, IS GRANTED, and that
    the construction deadline is HEREBY EXTENDED until October 5, 2009.

19. IT IS FURTHER ORDERED, 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), that Telesaurus Holdings GB, LLC,
    BE GRANTED additional time to meet the five-year construction
    requirement for certain multilateration Location and Monitoring
    Service Economic Area licenses, Call Signs WPOJ876 - WPOJ927, and
    that the five-year construction deadline is HEREBY EXTENDED until
    July 14, 2009.

20. IT IS FURTHER ORDERED, 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), that Telesaurus Holdings GB, LLC,
    BE GRANTED additional time to meet the ten-year construction
    requirement for certain multilateration Location and Monitoring
    Service Economic Area licenses, Call Signs WPOJ876 - WPOJ927, and
    that the ten-year construction deadline is HEREBY EXTENDED until
    July 14, 2011.

21. 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

> Roger Noel
>
> Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: Three entities related to Havens ---Telesaurus Holdings GB, LLC
    (Telesaurus), Telesaurus VPC, LLC (TVL), and the AMTS Consortium LLC
    (ACL) --- joined in each petition. We refer to Havens, Telesaurus,
    TVL, and ACL collectively as Havens.

[^2]: 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).

[^3]: 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).*

[^4]: 47 C.F.R. § 97.301.

[^5]: M-LMS licensees must demonstrate through actual field tests that
    their systems do not cause unacceptable levels of interference to
    Part 15 devices 47 C.F.R. § 90.353(d).

[^6]: "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).

[^7]: 47 C.F.R. § 90.155(d). *.*

[^8]: 47 C.F.R. §§ 1.946(c), 1.955(a)(2).

[^9]: 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.

[^10]: 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.

[^11]: 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 (WTB MD 2004) (*Havens M-LMS Order*).

[^12]: Request for Extension of Five-Year Construction Requirement,
    *Letter*, 20 FCC Rcd 4293 (WTB MD 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 (WTB MD 2006) (*Progeny Order*).

[^13]: 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).

[^14]: *LMS Report and Order*, 10 FCC Rcd at 4698 ¶ 5.

[^15]: *See* Havens Petition for Reconsideration or Alternative Action,
    Erratum Version (Apr. 4, 2005)*.*

[^16]: 20 FCC Rcd 4293.

[^17]: Havens also filed a Reply to Opposition (filed July 13, 2006),
    and an Amended Reply to Opposition (filed July 19, 2006). Progeny
    filed an Opposition to Petition for Reconsideration (filed July 3,
    2006), and an Amended Opposition to Petition for Reconsideration
    (filed July 5, 2006).

[^18]: *Havens M-LMS Order,* 19 FCC Rcd at 23744 ¶7.

[^19]: *See supra* para 2.

[^20]: *See also* *Havens M-LMS Order*, 19 FCC Rcd at 23746 ¶10
    ("failure to complete construction was due to causes beyond" the
    control of Havens).

[^21]: *See* 47 C.F.R. § 1.946.

[^22]: *See* 47 C.F.R. § 1.925.

[^23]: *See also* *Havens M-LMS Order*, 19 FCC Rcd at 23746 ¶10
    ("failure to complete construction was due to causes beyond" the
    control of Havens).

[^24]: *See* 47 C.F.R. § 1.946.

[^25]: *See* 47 C.F.R. § 1.925.

[^26]: *See also* *Havens M-LMS Order*, 19 FCC Rcd at 23746 ¶10
    ("failure to complete construction was due to causes beyond" the
    control of Havens).

[^27]: *See* 47 C.F.R. § 1.946.

[^28]: *See* 47 C.F.R. § 1.925.

[^29]: *See also* *Havens M-LMS Order*, 19 FCC Rcd at 23746 ¶10
    ("failure to complete construction was due to causes beyond" the
    control of Havens).

[^30]: *See* 47 C.F.R. § 1.946.

[^31]: *See* 47 C.F.R. § 1.925.