Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| INTEK LICENSE ACQUISITION CORP.  | ) |                              |
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| Request for Waiver and           | * |                              |
| Consolidation of 220 MHz         |   |                              |
| Construction Requirements        | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 12, 2001 Released: September 13, 2001**

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

**I. Introduction**

1.  On August 22, 2000, Intek License Acquisition Corp. ("ILAC") and its
    parent company, Securicor Wireless Holdings Inc. ("Securicor"),
    filed a request seeking waiver of Sections 90.725, 90.767, and
    90.769 of the Commission's rules in order to consolidate the various
    construction requirements for its licensed 220 MHz facilities.[^1]
    By this Order, we grant ILAC's Waiver Request, as described below.

**II. Background**

2.  Securicor, through its subsidiaries ILAC and Roamer One, Inc.
    ("Roamer One"), has acquired 220 MHz spectrum through assignment,
    lottery, and auction. ILAC's waiver request concerns the
    construction requirements for three types of 220 MHz licenses: Phase
    I nationwide, Phase II Regional Economic Area Grouping ("REAG"), and
    Phase II nationwide.[^2] In its Waiver Request, ILAC states that it
    plans to use these authorizations to construct a nationwide 220 MHz
    system, to compete effectively with other wireless service
    providers, and to develop band management services in the 220 MHz
    band.[^3]

3.  The Phase I nationwide, Phase II nationwide, and Phase II REAG
    licenses held by ILAC are currently subject to different
    construction requirements. Under Section 90.725 of the Commission's
    rules, Phase I nationwide licensees must construct base stations
    having a minimum of five assigned nationwide channels, and must
    place those base stations into operation: (1) in at least ten
    percent of the geographic areas designated in the application within
    two years of the initial license grant, including base stations in
    at least seven urban areas listed in Section 90.741; (2) in at least
    forty percent of the geographic areas designated in the application
    within four years of the initial license grant, including base
    stations in at least twenty-eight urban areas listed in Section
    90.741; (3) in at least seventy percent of the geographic areas
    designated in the application within six years of the initial
    license grant, including base stations in at least twenty-eight
    urban areas listed in Section 90.741; and (4) in all geographic
    areas designated in the application within ten years of the initial
    license grant, including base stations in at least twenty-eight
    urban areas listed in Section 90.741.[^4] The sites to be selected
    under Section 90.741 of the Commission's Rules are the "Top 100
    Urban Areas for Phase I Nationwide Systems."[^5]

4.  ILAC acquired one Phase I nationwide licenses from Global Cellular
    Communications, Inc. (call sign WPFP444) and one from ComTech
    Nationwide Communications (call sign WPFR284). The initial grant
    date for WPFP444 was September 16, 1994, and the initial grant date
    for WPFR284 was September 23, 1994. ILAC's six-year construction
    deadlines were on September 16 and September 23, 2000. Because the
    licenses had only recently been assigned to ILAC,[^6] the Commercial
    Wireless Division of the Wireless Telecommunications Bureau agreed
    to hold the six-year construction deadlines for the two Phase I
    nationwide licenses in abeyance pending action on ILAC's Waiver
    Request. The ten-year construction deadlines for the licenses are on
    September 16 and September 23, 2004, respectively.

5.  Section 90.767 of the Commission's rules requires a Phase II REAG
    licensee to construct a sufficient number of base stations to
    provide coverage to: (1) at least one-third of the population of the
    licensee's REAG within five years of the initial license grant;
    and (2) at least two-thirds of the population of the REAG within ten
    years of the initial license grant.[^7] Thus, the Phase II REAG
    requirements are based solely on population covered. ILAC's six
    8-channel REAG licenses and one 15-channel REAG license were all
    granted on March 22, 1999. Another 15-channel REAG license was
    granted on October 7, 1999. The five-year deadlines applicable to
    ILAC's Phase II REAG licenses are therefore on March 22, 2004 and
    October 7, 2004, respectively. The ten-year deadlines are on March
    22, 2009 and October 7, 2009, respectively.

6.  Section 90.769 of the Commission's rules requires a Phase II
    nationwide licensee to construct a sufficient number of base
    stations to provide coverage to: (1) either a composite area of at
    least 750,000 square kilometers or 37.5 percent of the United States
    population within five years of the initial license grant; and (2)
    either a composite area of at least 1,500,000 square kilometers or
    75 percent of the United States population within ten years of the
    initial license grant.[^8] There is no requirement that the sites
    used to satisfy the Phase II requirements be selected from a
    pre-determined list. ILAC's Phase II nationwide license (call sign
    WPOI701) was issued on March 22, 1999. The five- and ten-year
    deadlines applicable to ILAC's Phase II nationwide license are
    therefore March 22, 2004 and March 22, 2009, respectively.

7.  In its Waiver Request, ILAC seeks a waiver of the construction
    requirements applicable to its Phase I nationwide and Phase II REAG
    and nationwide licenses to the extent necessary to consolidate its
    220 MHz construction requirements.[^9] ILAC asks that, with respect
    to its Phase I nationwide channels, it be given the option of
    applying either the six- and ten-year Phase I construction benchmark
    requirements, or the Phase II nationwide construction benchmarks and
    timetable.[^10] ILAC agrees to meet an interim construction
    benchmark for its Phase I nationwide channels.[^11] With regard to
    its Phase II REAG licenses, ILAC requests that it be allowed to meet
    its construction obligations by either population coverage or
    geographic coverage.[^12]

8.  ILAC maintains that waiver of the construction requirements is
    appropriate for three primary reasons. First, the various
    requirements create an unnecessary and unduly burdensome regulatory
    regime that hinders ILAC's efforts to develop an effective
    nationwide business plan.[^13] Second, ILAC contends that waiver
    relief will place it on a more level playing field with other
    wireless service providers and will foster regulatory parity.[^14]
    Third, ILAC suggests that the construction requirements for its
    28-channel nationwide 220 MHz system should be harmonized into a
    uniform construction obligation, which would allow it to develop a
    band manager plan while effectively deploying the spectrum.[^15]

**III. Discussion**

9.  Pursuant to section 1.925 of the Commission's rules, a 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.[^16] Alternatively, under section 1.3 of the
    Commission's rules, the Commission has authority to waive its rules
    if there is "good cause" to do so.[^17]

10. On the facts before us, we find that a partial waiver of our 220 MHz
    construction requirements is warranted.[^18] On a nationwide basis,
    ILAC holds a total of 28 channels in the 220 MHz service, but
    because these channels fall into three different licensing
    categories, and were granted at different times, they are subject to
    different construction requirements and timetables. The rules for
    Phase I nationwide licenses require phased construction of a set
    number of individual base stations and focus on a designated list of
    urban areas.[^19] The Phase II REAG license construction rules
    require coverage of a specified percentage of the population in each
    of the seven REAGs.[^20] The Phase II nationwide rules give
    licensees the option of meeting coverage benchmarks based either on
    population or on geographic area.[^21] In light of the fact that
    ILAC is using its licensed facilities to build a single nationwide
    system, application of the various construction rules would be
    unduly burdensome. Further, implementation of ILAC's band manager
    approach may bring more diverse service offerings to this spectrum
    band. Accordingly, we conclude that it is reasonable under these
    circumstances to apply a more uniform set of construction
    requirements to ILAC's system as a whole. Specifically, we waive the
    construction requirements for ILAC's Phase I nationwide and Phase II
    REAG licenses to the extent described below. The construction
    requirements and deadlines for ILAC's Phase II nationwide licenses
    remain unchanged.

11. With respect to each of the two Phase I nationwide licenses, ILAC
    may either satisfy the remaining six- and ten-year construction
    requirements set forth in Section 90.725[^22] of the Commission's
    rules, or satisfy the construction requirements set forth in Section
    90.769[^23] (*i.e.*, the Phase II nationwide deadlines and
    benchmarks). The construction requirements must be satisfied
    independent of the Phase II licenses, and independently for each of
    the two licenses. Because the six-year deadline for these two
    licenses has already passed, we are extending this deadline until 30
    days from the release of this Order.

12. With respect to each of the eight Phase II REAG licenses, ILAC may
    either satisfy the construction requirements set forth in Section
    90.767,[^24] or it may use the following geographic coverage
    benchmarks as an alternative: in each REAG, ILAC may satisfy its
    construction obligation by constructing a sufficient number of base
    stations to provide coverage to: (1) either a composite area of at
    least 100,000 square kilometers or one-third of the population of
    the REAG within five years of the initial license grant; and (2)
    either a composite area of at least 200,000 square kilometers or
    two-thirds of the population of the REAG within ten years of the
    initial license grant. Note that the construction deadlines for
    these licenses remain unchanged, and the construction requirements
    must be satisfied independently for each of the seven REAG licenses.

13. In return for this relief, and to ensure that ILAC proceeds
    expeditiously with construction of its proposed system, we also
    require ILAC to meet an additional interim coverage benchmark of
    250,000 square kilometers or 12.5% of the United States population
    by September 16, 2002. This represents one-third of the coverage
    required at the five-year benchmark for Phase II nationwide
    licenses.[^25] This interim construction requirement may be
    satisfied with respect to all the licenses referenced above, in the
    aggregate. ILAC may therefore meet this requirement by demonstrating
    compliance for the entire group of licenses, rather than satisfying
    the requirement independently with respect to each license.

14. In addition, because one of the bases for this waiver is ILAC's
    intent to build a nationwide 220 MHz system using its various sets
    of licenses, this waiver applies to the subject licenses only so
    long as ILAC or a successor in interest operates the licenses as an
    integrated 28-channel system. This waiver will not apply to any
    smaller subset of these licenses transferred or assigned to another
    licensee.

**IV. Ordering Clause**

15. 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 0.131, 0.331, 1.3, and 1.925 of the Commission's Rules, 47
    C.F.R. §§ 0.131, 0.331, 1.3, 1.925, the request filed by ILAC for
    waiver of the Phase I Nationwide and Phase II REAG construction
    requirements IS HEREBY GRANTED to the extent discussed herein.

FEDERAL COMMUNICATIONS COMMISSION

> William W. Kunze

Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: *See* Request of Intek License Acquisition Corp. for Waiver and
    Consolidation of 220 MHz Construction Requirements filed August 22,
    2000 ("Waiver Request").

[^2]: The stations involved are WPFP444 and WPFR284 (Phase I
    Nationwide); WPOI702, WPOI703, WPOI704, WPOI705, WPOI706, WPOI708,
    WPOI707, and WPOK779 (Phase II REAG); and WPOI701 (Phase II
    Nationwide).

[^3]: Waiver Request at 1-2.

[^4]: 47 C.F.R. § 90.725.

[^5]: 47 C.F.R. § 90.741.

[^6]: The Commission consented to the assignment of the Phase I
    nationwide license for WPFP444 from Global Cellular Communications,
    Inc. to ILAC on July 5, 2000. The final closing date was August 15,
    2000. The Commission consented to the assignment of the Phase I
    nationwide license WPFR284 from ComTech Nationwide Communications to
    ILAC on August 1, 2000. The assignment was consummated on September
    11, 2000.

[^7]: 47 C.F.R. § 90.767. If a REAG licensee offers fixed services as
    part of its system or has one or more incumbent Phase I licenses
    within its licensed service area, it may meet the construction
    requirements by demonstrating an appropriate level of "substantial
    service" at its five- and ten-year deadlines. 47 C.F.R.
    § 90.767(2)(b).

[^8]: 47 C.F.R. § 90.769. Phase II nationwide licensees offering fixed
    services as part of their system may meet the construction
    requirements by demonstrating an appropriate level of "substantial
    service" at their five- and ten-year deadlines. 47 C.F.R. §
    90.769(2)(b).

[^9]: Waiver Request at 11.

[^10]: *Id.*

[^11]: Waiver Request at 12.

[^12]: *Id.*

[^13]: Waiver Request at 7-8.

[^14]: Waiver Request at 8-9.

[^15]: Waiver Request at 9-11.

[^16]: 47 C.F.R. § 1.925(3).

[^17]: 47 C.F.R. § 1.3.

[^18]: The Commercial Wireless Division granted a similar waiver request
    to the National Rural Telecommunications Cooperative, LLC ("NRTC").
    *See* In the Matter of National Rural Telecommunications
    Cooperative, LLC Request for Waiver and Consolidation of 220 MHz
    Construction Requirements, *Memorandum Opinion and Order*, DA
    00-1762 (rel. Aug. 4, 2000).

[^19]: 47 C.F.R § 90.725.

[^20]: 47 C.F.R. § 90.767.

[^21]: 47 C.F.R. § 90.769.

[^22]: 47 C.F.R. § 90.725.

[^23]: 47 C.F.R. § 90.769.

[^24]: 47 C.F.R. § 90.767.

[^25]: 47 C.F.R. § 90.769.