**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. 0000175254          |
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| INSTAPAGE NETWORK, LTD.          | ** |                              |
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| Notification of Construction and | *  |                              |
| Request for Waiver for           | *) |                              |
| Narrowband PCS Station KNKV222   | ** |                              |
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**ORDER**

**Adopted: July 18, 2001 Released: July 20, 2001**

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

1.  In this Order, we address the construction notification and request
    for waiver filed by Instapage Network, Ltd. ("Instapage") on June
    22, 2000, with respect to its regional narrowband Personal
    Communication Service ("PCS") license identified by call sign
    KNKV222.[^1] Specifically, Instapage asks the Wireless
    Telecommunications Bureau ("Bureau") to accept its five-year
    construction notification or, in the alternative, waive sections
    1.946 and 24.103 of the Commission's rules with respect to timing
    issues.[^2] For the reasons stated below, we dismiss Instapage's
    construction notification as defective and deny its request for
    waiver. We do, however, on our own motion, grant Instapage special
    temporary authority ("STA") to continue its current operations,
    subject to certain conditions set forth below, in order for
    Instapage to transition its subscribers to licensed carriers.

2.  On January 23, 1995, the Commission granted Instapage a narrowband
    PCS license for Region 2 (South Region) on channel block 16.[^3] In
    accordance with section 24.103 of the Commission's rules, Instapage
    was required to meet its five-year coverage requirement no later
    than January 23, 2000.[^4] Specifically, as of that date, section
    24.103(b) required Instapage either to provide coverage to a
    composite area of 150,000 square kilometers or to serve 37.5 percent
    of the population of its licensed area.[^5] Furthermore, sections
    1.913(b) and 1.946(d) of the Commission's rules required Instapage
    to file an electronic notification of construction no later than
    February 7, 2000, certifying compliance with the five-year coverage
    requirement.[^6] In the alternative, section 1.946(e) provides that
    a licensee may request an extension of time to meet a construction
    requirement; however, the extension request must be filed prior to
    the construction deadline.[^7]

3.  Instapage filed its five-year construction notification on June
    22, 2000. Therein, Instapage stated that it had met the construction
    requirement of section 24.103 and, for some time, had been providing
    a level of service to the market that constitutes "substantial
    service."[^8] In the event that the Commission did not accept its
    construction notification, Instapage requested a waiver of sections
    1.946 and 24.103 "with respect to timing issues."[^9] On July 13,
    2000, the Bureau requested clarification of Instapage's claim that
    it had met the coverage requirements of section 24.103.[^10] In its
    August 21, 2000 reply, Instapage stated that "\[b\]ased on the
    strict numerical coverage requirements that were in place as of
    \[its five-year construction deadline\], Instapage did not provide
    coverage to 37.5 percent of the population within its service area
    or provide coverage to a composite area of 150,000 square
    kilometers."[^11]

4.  Instapage was required by section 1.946(d) to file its notification
    of construction by February 7, 2000. In the alternative, Instapage
    could have requested a waiver or extension of time under section
    1.946(e), but had to do so before its construction deadline of
    January 23, 2000. However, Instapage filed its construction
    notification and request for waiver and extension of time on June
    22, 2000, four and a half months after such notification was due and
    five months after any extension request was due. Additionally, by
    its own admission, Instapage did not meet the minimum coverage
    benchmarks required of a regional narrowband PCS licensee within
    five years of its license grant.[^12] Therefore, Instapage's
    regional narrowband PCS license, identified by call sign KNKV222,
    terminated automatically pursuant to sections 1.946(c) and
    1.955(a)(2) on January 23, 2000.[^13]

5.  Instapage argues that its failure to file a timely notification or
    extension request should not lead to license termination because the
    Commission provided in the *ULS Report and Order* that licenses
    would not be terminated on this basis without both pre- and
    post-deadline notification by the Commission to the licensee.[^14]
    However, the stated purpose of the notification procedures described
    in that order was to prevent inadvertent termination of licenses
    where the licensee could demonstrate that it had timely met the
    underlying construction requirements, but had failed to file a
    notification.[^15] Here, by contrast, Instapage concedes that it
    neither met the applicable coverage requirements by the five-year
    deadline nor sought timely relief from those requirements. In
    addition, Instapage ignores that, both before and after the
    construction deadline, it has been afforded notice and opportunity
    to demonstrate compliance that are substantively identical to what
    was contemplated in the *ULS Report and Order.*[^16] Thus, there is
    no need to provide further "notice" to Instapage prior to rendering
    a decision.

6.  Furthermore, we are not persuaded by Instapage's request for waiver
    of the filing deadlines. In order to be granted a waiver, the
    petitioner must establish 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) application of the rule would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the petitioner has no reasonable alternative, in the light of the
    petitioner's unique or unusual circumstances.[^17] In this case,
    Instapage failed to provide any reason why it was unable to file a
    construction notification as of February 7, 2000 or to request an
    extension prior to the construction deadline of January 23, 2000.
    Moreover, Instapage failed to provide an explanation why it was
    unable to make any such filing until five months after the deadline.
    We therefore find that Instapage failed to meet the standard for
    grant of a waiver. Furthermore, we point out that, as discussed
    above, the license in question had terminated automatically for
    failure to meet the minimum coverage requirements several months
    before Instapage submitted its request for waiver of the filing
    deadlines.

7.  Because Instapage currently has subscribers in Region 2
    (particularly in greater San Juan, Puerto Rico), we find that it is
    in the public interest to grant an STA to Instapage, subject to
    certain conditions, in order to transition these subscribers to
    licensed carriers.[^18] First, STA is granted to Instapage for the
    lesser of 180 days from release of this Order or 60 days following
    receipt of written notice from a new licensee for channel block 16
    in Region 2 notifying Instapage that it intends to commence
    operations.[^19] Second, Instapage shall, within 30 days of the
    release of this Order, provide written notice to each of its current
    subscribers that: (i) its regional license has been terminated; (ii)
    it is only authorized to provide service to existing customers under
    a grant of special temporary authority; and (iii) it will provide
    customers with at least 30-days written notice prior to permanently
    discontinuing service.[^20] Third, Instapage is not permitted to
    solicit or add new subscribers in Region 2 while it is operating
    under this STA. Fourth, Instapage shall, as described above, provide
    written notice to each of its subscribers at least 30 days prior to
    permanently discontinuing service.[^21] Finally, after the
    expiration of the STA or any renewals, Instapage will no longer be
    authorized to provide further service and shall cease any and all
    operations in Region 2.

8.  Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and
    309(j)(4)(B) of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i), 309(j)(4)(B), and sections 0.331, 1.946, and
    24.103(b) of the Commission's rules, 47 C.F.R. §§ 0.331, 1.946,
    24.103, the construction notification filed by Instapage Networks,
    Ltd. on June 22, 2000, is DISMISSED as defective.

9.  IT IS FURTHER ORDERED that, pursuant to sections 4(i) and
    309(j)(4)(B) of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i), 309(j)(4)(B), and section 1.925 of the
    Commission's rules, 47 C.F.R. § 1.925, the request for waiver filed
    by Instapage Networks, Ltd. on June 22, 2000 is DENIED.

10. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309(f) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309(f), and section 1.931(a) of the Commission's rules, 47 C.F.R. §
    1.931(a), Special Temporary Authority IS GRANTED *sua sponte* to
    Instapage Networks, Ltd., subject to the terms and conditions set
    forth herein.

    FEDERAL COMMUNICATIONS COMMISSION

    William W. Kunze

    Chief, Commercial Wireless Division

    Wireless Telecommunications Bureau

[^1]: Letter from Thomas Gutierrez, Esq., counsel for Instapage Network,
    Ltd. to William W. Kunze, Deputy Chief, Commercial Wireless
    Division, Wireless Telecommunications Bureau, dated June 22, 2000
    ("Construction Notification/Waiver Request").

[^2]: 47 C.F.R. §§ 1.946, 24.103.

[^3]: Region 2 (South Region) consists of ten Major Trading Areas,
    Puerto Rico, and the United States Virgin Islands. *See* 47 C.F.R. §
    24.102(b)(2). As a small business, Instapage was eligible to pay the
    remainder of its winning bid, after down payments, with installment
    payments. *See* Construction Notification/Waiver Request, Appendix I
    at n. 2. *See also* 47 C.F.R. §§ 1.2110(g), 24.309(b)(1).

[^4]: 47 C.F.R. § 24.103.

[^5]: *Id*. The rules in effect on that date did not permit Instapage to
    make a showing of substantial service as an alternative to the
    geographic or population coverage benchmarks.

[^6]: 47 C.F.R. §§ 1.913(b), 1.946(d).

[^7]: 47 C.F.R. § 1.946(e).

[^8]: Construction Notification/Waiver Request at 3-4.

[^9]: *Id*. at 1. *See also* Construction Notification/Waiver Request,
    Appendix I.

[^10]: *See* Letter from Paul D'Ari, Chief, Policy and Rules Branch,
    Commercial Wireless Division, Wireless Telecommunications Bureau, to
    Thomas Gutierrez, Esq., dated July 13, 2000.

[^11]: *See* Letter from Thomas Gutierrez, Esq., to Paul D'Ari, Chief,
    Policy and Rules Branch, Commercial Wireless Division, Wireless
    Telecommunications Bureau, dated August 21, 2000.

[^12]: Although Instapage did not provide exact figures of its coverage
    as of the construction deadline, it did indicate that, as of that
    date, it was only providing coverage to the San Juan, Puerto Rico
    area. At the most, the greater San Juan, Puerto Rico area only
    includes approximately 4.2 percent of the population or 5,097 square
    kilometers of Region 2, significantly less than the minimal 37.5
    percent population coverage or 150,000 square kilometers geographic
    coverage requirement of regional narrowband PCS licensees. This
    estimate was calculated using the population and square kilometers
    of the Basic Trading Area of San Juan, Puerto Rico (BTA488), which
    is one component of Region 2 (South Region).

[^13]: 47 C.F.R. §§ 1.946(c), 1.955(a)(2). In light of the automatic
    termination of the license, Instapage's license term is ended and it
    is no longer eligible to pay the outstanding amount of its winning
    bid obligation with installment payments. *See* 47 C.F.R. §
    1.2110(g)(3)(ii).

[^14]: Construction Notification/Waiver Request, Appendix I at 2, 10,
    *citing* Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90,
    95, 97, and 101 of the Commission's Rules to Facilitate the
    Development and Use of the Universal Licensing System in the
    Wireless Telecommunications Service, WT Docket No. 98-20, *Report
    and Order*, 13 FCC Rcd. 21027 (1998) (*ULS Report and Order*).

[^15]: *ULS Report and Order* at ¶ 106. The Commission stated that the
    purpose of the notification procedures was to "verify whether
    licensees have in fact met their construction and coverage
    obligations, not to terminate licenses for legitimately operating
    facilities based on a failure to notify by the licensee that could
    be the result of a mailing error." *Id*.

[^16]: Prior to the construction deadline, the Bureau issued a public
    notice reminding all narrowband PCS licensees, including Instapage,
    of the pending construction deadline and providing detailed
    instructions on how to file notifications. *See* Wireless
    Telecommunications Bureau Reminds Narrowband Personal Communications
    Services (PCS) Licensees of Five-Year Construction Benchmark,
    *Public Notice*, 14 FCC Rcd. 9020 (1999). Following the construction
    deadline, Instapage has had a full opportunity in this proceeding to
    document the nature and timing of its actual coverage in support of
    its waiver request.

[^17]: *See* 47 C.F.R. § 1.925. *See also* 47 C.F.R. § 1.3.

[^18]: In the event that Instapage does not want to continue operation,
    the STA will terminate once the Commission has received notification
    from Instapage.

[^19]: Once the Commission has granted a new license for channel block
    16 in Region 2, we will consider any requests for renewal of the STA
    in which the new licensee has agreed to continue to allow Instapage
    to operate in its licensed area.

[^20]: Instapage shall provide a copy of such notice to the Commission.

[^21]: Instapage shall also provide a copy of such notice to the
    Commission.