DA 08-414

Kenneth J. Schmier

NextBus Information Systems, Inc.\
1475 Powell St Suite 201\
Emerville, CA 94608

Re: Request for Extension of Time to Construct Twenty-Eight Paging
Licenses

Dear Mr. Schmier:

This letter addresses the above-captioned Request for Extension of Time
to Construct (Waiver Request), filed on behalf of NextBus Information
Systems, Inc. (NextBus) on June 21, 2007, seeking waiver of the
construction requirements of section 22.503(k)(2) of the Commission's
rules[^1] for twenty-eight geographic area-based Part 22 paging
licenses.[^2] Specifically, NextBus requests a waiver of the
construction deadline until March 31, 2009 to complete construction for
the twenty-eight licenses subject to the Waiver Request. For the reasons
stated below, we grant the Waiver Request.

Pursuant to sections 1.946(c) and 1.955(a)(2) of the Commission\'s
rules, NextBus's licenses will terminate automatically as of the
construction deadline if NextBus fails to meet the requirements of
section 22.503(k)(2),[^3] unless the Commission grants an extension or
waives the construction requirements.[^4] The construction deadline for
the twenty-eight licenses was June 21, 2007.

A waiver may be granted, pursuant to section 1.925 of the Commission's
rules, if the petitioner establishes 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.[^5]

NextBus acquired the twenty-eight licenses (where each license is a
channel pair) for thirteen different Major Economic Areas (MEAs) in June
2002 as the winning bidder in Auction No. 40. NextBus states that it
provides computer-calculated prediction of transit vehicle arrival times
under contract to over fifty municipally owned public transit agencies
across the United States and that NextBus is entirely funded by its
users.[^6] NextBus describes its system in such a manner as "Using GPS
and wireless data transmission, each bus or transit vehicle reports its
location to \[NextBus's\] central computer at least as frequently as
every 90 seconds or a movement of 200 meters. The transmitted location
data is then combined with stored operational data to produce extremely
accurate predictions of vehicle arrival times."[^7] NextBus states that
its service provides real-time information to individuals that utilize
public transportation such as minutes to arrival at a specific location,
passenger load and whether a bus includes a wheel chair lift or bicycle
rack.[^8] NextBus states that to date it has implemented some measure of
its service in San Francisco, Washington, D.C., Philadelphia, Miami,
Pittsburgh, Chicago, Denver, Seattle and Atlanta.[^9] However, NextBus
argues that numerous delays in federal transportation funding to local
governments has limited its ability to fully construct its system.[^10]
Specifically, NextBus states that because the entities that contract for
service (*i.e.,* municipalities) are reliant upon federal funding to
help pay for transportation projects and because money earmarked by the
federal government for the reauthorization of a transportation bill that
covers 2004 -- 2009 was two years late in being dispersed, NextBus has
been unable to fully construct its system.[^11] For example, NextBus
states that the transportation bill contained earmarks for \$4 million
in San Francisco and \$2.6 million in Chapel Hill, North Carolina,
respectively, for NextBus service.[^12] NextBus states that since
federal funds have been allocated, it is in a position to complete
construction of its system.

Based on the totality of the circumstances involved in this case, we
believe that the public interest would be served by extending the
construction deadline for the twenty-eight licenses listed in Appendix A
until March 31, 2009. Specifically, we find that automatic termination
of these licenses pursuant to Section 1.946(c) would not serve the
underlying purpose of the construction rule, and that grant of the
waiver would be in the public interest.[^13] The record indicates that
NextBus has been diligent in implementing its service in many
municipalities and with the extra time granted here would be able to
assist other public transportation agencies wishing to implement its
service. Further, termination of the licenses would not serve the public
interest now that federal funding has been allocated to implement
NextBus's real-time tracking system for use by various public transit
agencies across the United States. We expect that NextBus's system will
provide public interest benefits such as enhanced communication services
to individuals that rely on public transportation as well as to entities
that provide NextBus's services. Finally, we believe that granting
NextBus the additional time it has requested to construct its system is
consistent with the Commission's public interest goal of promoting
efficient utilization of spectrum in the near term.[^14]

Accordingly, IT IS ORDERED that, pursuant to section 4(i) and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 303(r)
and sections 0.331 and 1.925 of the Commission's rules, 47 C.F.R. §§
0.331, 1.925, the Request by the NextBus Information Systems, Inc. for
Extension of Time to Construct IS HEREBY GRANTED, to extend the
construction deadlines for the licenses listed in Appendix A until March
31, 2009.[^15]

> Sincerely,
>
> Thomas P. Derenge
>
> Deputy Chief, Mobility Division
>
> Wireless Telecommunications Bureau
>
> Appendix A

  ------------- ----------- ---------- -------------------------- -----------
  **File        **Call      **Market   **Market Description**     **Channel
  Number**      Sign**      Code**                                Block**

  0003082590    WPVI386     MEA001     Boston                     AX

  0003082591    WPVI387     MEA001     Boston                     AZ

  0003082592    WPVI388     MEA002     New York City              AX

  0003082593    WPVI389     MEA002     New York City              AZ

  0003082594    WPVI390     MEA004     Philadelphia               AU

  0003082595    WPVI391     MEA004     Philadelphia               AZ

  0003082614    WPVI448     MEA005     Washington                 A

  0003082596    WPVI392     MEA005     Washington                 AJ

  0003082597    WPVI393     MEA005     Washington                 AR

  0003082598    WPVI394     MEA005     Washington                 AU

  0003082599    WPVI395     MEA005     Washington                 AZ

  0003082600    WPVI396     MEA008     Atlanta                    AO

  0003082601    WPVI397     MEA008     Atlanta                    AP

  0003082602    WPVI398     MEA011     Miami                      AA

  0003082603    WPVI399     MEA011     Miami                      AB

  0003082604    WPVI400     MEA012     Pittsburgh                 AX

  0003082605    WPVI401     MEA012     Pittsburgh                 AY

  0003082615    WPVI449     MEA018     Chicago                    A

  0003082606    WPVI402     MEA018     Chicago                    AV

  0003082607    WPVI403     MEA018     Chicago                    AZ

  0003082608    WPVI404     MEA030     St. Louis                  AE

  0003082616    WPVI450     MEA033     Denver                     I

  0003082609    WPVI407     MEA040     Phoenix                    AL

  0003082610    WPVI408     MEA040     Phoenix                    AN

  0003082611    WPVI409     MEA043     San Francisco-Oakland-San  AJ
                                       Jose                       

  0003082612    WPVI410     MEA043     San Francisco-Oakland-San  AM
                                       Jose                       

  0003082613    WPVI411     MEA043     San Francisco-Oakland-San  AT
                                       Jose                       

  0003082617    WPVI451     MEA046     Seattle                    L
  ------------- ----------- ---------- -------------------------- -----------

[^1]: 47 C.F.R. § 22.503(k)(2).

[^2]: Request for Extension of Time to Construct (filed June 21, 2007)
    ("Waiver Request"); Amendment to Request for Extension of Time to
    Construct (filed October 19, 2007) ("Amendment to Waiver Request").
    *See* Appendix A for a list of the File Nos. and Call Signs subject
    to the Waiver Request.

[^3]: Pursuant to section 22.503(k)(2) of the Commission's rules, an EA
    paging licensee must construct facilities to cover two-thirds of the
    population of its license area within five years of initial license
    grant. 47 C.F.R. § 22.503(k)(2).

[^4]: 47 C.F.R. §§ 1.946(c), 1.955(a)(2).

[^5]: 47 C.F.R. § 1.925. The Commission has stated that, in situations
    in which the circumstances are unique and the public interest would
    be served, it would consider waiving construction requirements on a
    case-by-case basis. *See* Amendment of the Commission's Rules To
    Establish New Personal Communications Services, GEN Docket No.
    90-314, *Memorandum Opinion and Order*, 9 FCC Rcd 4957, 5019 (1994)
    (*PCS MO&O*), *citing* *WAIT Radio v. FCC*, 418 F.2d 1153 (D.C. Cir.
    1969).

[^6]: Amendment to Waiver Request at 1.

[^7]: Id.

[^8]: Waiver Request at 1.

[^9]: *Id*. at 2.

[^10]: Waiver Request at 1; Amendment to Waiver Request at 2 -- 3.

[^11]: The original transportation bill referred to by Nextbus is the
    Transportation Equity Act for the 21^st^ Century, Pub. L. No.
    105-178, 112 Stat 107 (1998).  The bill that NextBus refers to as
    being "reauthorized" is the Safe, Accountable, Flexible, Efficient
    Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59,
    119 Stat 1144 (2005).

[^12]: *Id*. at 3.

[^13]: *See* 47 C.F.R. § 1.925(b)(3)(i).

[^14]: *See* Interstate Power and Light Co, Requests for Extension of
    Time to Construct Private Land Mobile Radio Stations WPBI312,
    WPBI313, WPBI314, WPBI315, WPBI316, WPBI317, and WPBI318, and Waiver
    of Sections 1.946 and 90.629 of the Commission's Rules, *Order*, 18
    FCC Rcd 11051, 11056 ¶ 15(2003).

[^15]: 47 U.S.C. § 154(i), 47 C.F.R. §§ 0.331, 1.925.