Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
|                                  | *) |                              |
| Request of Warren C. Havens for  | ** |                              |
| Waiver or Extension of The       |    |                              |
| Five-Year Construction           | *  |                              |
| Requirement For 220 MHz Service  | *) |                              |
| Phase II                         | ** |                              |
|                                  |    |                              |
| Economic Area and Regional       | *  |                              |
| Licensees                        | *) |                              |
|                                  | ** |                              |
| And                              |    |                              |
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| Request of BizCom USA, Inc. for  | *) |                              |
| Waiver                           | ** |                              |
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| And Extension of the             | *  |                              |
| Construction                     | *) |                              |
|                                  | ** |                              |
| Requirements for 220 MHz Service |    |                              |
| Phase II                         | *  |                              |
|                                  | *) |                              |
| Regional and Nationwide          | ** |                              |
| Licensees                        |    |                              |
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| And                              | *) |                              |
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| Request of Cornerstone SMR,      |    |                              |
| Inc.for                          | *  |                              |
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| Waiver of Section 90.157 of the  | ** |                              |
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| Commission's Rules               | *  |                              |
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+----------------------------------+----+------------------------------+

MEMORANDUM OPINION AND ORDER

# Adopted: July 12, 2004 Released: July 13, 2004 {#adopted-july-12-2004-released-july-13-2004 .unnumbered}

By the Chief, Wireless Telecommunications Bureau:

# introduction

1.  In this Order, we address two requests for waiver or extension of
    the construction requirements for Phase II 220 MHz service
    licensees. These are the January 12, 2004 request of Warren C.
    Havens (Havens) for a waiver or extension of the five-year
    construction requirements for Economic Area (EA) and Regional
    Economic Area Grouping (REAG or regional) licensees,[^1] and the
    February 10, 2004 request of BizCom USA, Inc. (BizCom) for a
    three-year extension of both the five- and ten-year construction
    requirements for regional and nationwide licensees.[^2] For the
    reasons stated below, we find that the public interest would be
    served by extending the five-year construction requirement until
    November 5, 2007 for all 220 MHz Phase II EA, regional, and
    nationwide licensees subject to this order.[^3] We also grant
    BizCom's request that it be permitted to use geographic coverage as
    an alternative to population coverage for its regional licenses
    because it is constructing a nationwide system. Finally, we deny the
    following: (i) Havens' alternative request for a complete waiver of
    the five year construction requirement; (ii) BizCom's request for a
    three year extension of the ten year construction requirement;
    and (iii) Cornerstone SMR, Inc.'s ("Cornerstone") request for a
    waiver of Section 90.157[^4] to permit constructed 220 MHz service
    licensees to deconstruct their facilities and remain non-operational
    until they either choose to reconstruct or until the extended
    construction deadline, whichever comes first.

#  background

## The 220-222 MHz Service

2.  In 1988, the Commission reallocated the 220-222 MHz band from the
    Amateur Radio service to private and Federal Government land mobile
    use.[^5] In 1991, the Commission established the 220 MHz service and
    adopted rules for the assignment of 200 five kilohertz channel
    pairs[^6] in various channel block sizes for use by both Government
    and non-Government licensees.[^7] Through the adoption of these
    service rules, the Commission essentially dedicated this spectrum
    for the development of spectrally efficient narrowband technology to
    afford this technology an opportunity to gain acceptance in the
    marketplace.

3.  In 1997, the Commission completed a review of the 220 MHz service
    rules and established a more flexible regulatory framework intended
    to: (i) allow efficient assignment of 220 MHz licenses; (ii)
    eliminate unnecessary regulatory burdens on both Phase I and Phase
    II licensees; and (iii) enhance the competitive potential of the 220
    MHz service in the marketplace.[^8] While the Commission issued
    Phase I licenses on a site-based and nationwide basis with various
    eligibility requirements, it subsequently instituted a geographic
    area licensing scheme. Specifically, in the *Third Report and
    Order,* the Commission established that 220 MHz licenses would be
    issued for EA, regional, and nationwide service areas for certain
    channel blocks that would be assigned through competitive bidding
    (Phase II). Phase II licenses consist of various channel block sizes
    (*e.g.*, 10 and 15- paired five kilohertz channels resulting in 100
    kilohertz, and 150 kilohertz channel blocks). Several channel blocks
    consist of non-contiguous interleaved channel pairs separated to
    enable trunked operations.[^9] The Commission also allowed Phase I
    and Phase II licensees to aggregate contiguous five kilohertz
    channels to achieve wider channel widths and allowed flexibility in
    the type of operations allowed (*e.g.*, fixed data operations in
    addition to mobile applications).

4.  To ensure efficient spectrum use, the Commission adopted the
    construction requirements in Section 90.767(a) of its rules, which
    requires 220 MHz EA and regional licensees to construct a sufficient
    number of base stations to provide coverage to at least one-third of
    the population of their market areas within five years of license
    issuance and to at least two-thirds of the population within ten
    years.[^10] Additionally, Section 90.769(a) requires that 220 MHz
    nationwide licensees construct a sufficient number of base stations
    to provide coverage to a composite area of at least 750,000 square
    kilometers or 37.5 percent of the United States population within
    five years of license issuance and to at least 1,500,000 square
    kilometers or 75 percent of the United States population within ten
    years of license issuance.[^11]

5.  In FCC Auction Nos. 18 and 24, the Commission auctioned 693 and 222
    Phase II 220 MHz service licenses, respectively. These licenses were
    granted on various dates throughout 1999.[^12] Thus, in accordance
    with Sections 90.767(a)(1) and 90.769(a)(1), the five-year
    construction deadlines for these licenses are in 2004.[^13]

## Requests to Waive or Extend the 220 MHz Service Construction Requirements

6.  On January 12, 2004, Havens requested that the five-year
    construction deadline for 220 MHz Phase II EA and regional licensees
    in certain channel blocks be either waived or extended for three
    years.[^14] In support of his request, Havens argues that he plans
    to provide trunked two-way voice communications via narrowband five
    kilohertz channels, but no such equipment is currently available
    that is economically feasible or being technically supported. Havens
    argues that this relief would allow 220 MHz licensees to seek and
    install new, viable equipment to provide the trunked two-way voice
    services for which the band was configured. Havens states that the
    relief is justified by the regulatory limitations placed on 220 MHz
    licensees (*e.g*., non-contiguous five kilohertz channels) and that
    more time will allow appropriate solutions to be developed.

7.  Havens notes that two companies manufactured equipment for 220 MHz
    narrowband, voice communications, but that both companies stopped
    manufacturing such equipment several years ago because the equipment
    "failed in the marketplace."[^15] Havens further states that he is
    aware of a company that is currently manufacturing 220 MHz
    narrowband equipment, but this equipment is not capable of voice
    communications.[^16] Rather, this equipment provides for data
    communications, such as telemetry and supervisory control and data
    applications (SCADA).[^17] Havens contends that because such
    equipment is primarily employed for internal communications systems,
    such as those used by utility companies, "there are few viable
    business cases" for commercial voice systems based on this equipment
    and it would thus be inequitable to require licensees to construct
    their systems with this equipment.[^18] Havens also reports that he
    is aware of at least three companies that manufacture equipment for
    220 MHz voice and data communications, but this equipment operates
    on 12.5 kilohertz channels.[^19] Havens argues, although licensees
    in the 220 MHz service are permitted to aggregate adjacent channels
    to form wider channels, they should not be required to do so merely
    to meet the construction requirement.[^20] Havens contends that many
    220 MHz licensees do not hold licenses for the adjacent channels,
    and that the service was not designed with such aggregation in
    mind.[^21] Havens further argues that the channel configuration[^22]
    in the 220 MHz band, as well as Commission pronouncements, indicate
    that the Commission intended trunked, two-way voice communications
    to be the primary purpose of the 220 MHz service.[^23]

8.  Havens contends that the standards for granting a waiver are met
    because licensees have no reasonable alternative for providing
    service because of the lack of voice equipment, and it would be
    unduly burdensome and contrary to the public interest to require
    licensees to use discontinued or inappropriate equipment to meet
    construction requirements.[^24] Havens also argues that without
    relief, the licenses would be terminated and additional Commission
    resources would be expended to re-license the band, which, on
    balance, would delay any solutions and not serve the public
    interest, thus frustrating the purpose of Section 90.767. Havens
    also states that the 220 MHz service has similar characteristics to
    the Wireless Communications Service (WCS), for which the Commission
    adopted a ten-year construction requirement.[^25] Finally, Havens
    cites as precedent for granting relief the Wireless
    Telecommunications Bureau's (Bureau) 2001 *Nextel/Neoworld Order*,
    where certain 900 MHz SMR licensees were granted a 16-month
    extension of the five-year construction deadline because digital
    voice equipment was not available in sufficient quantities to enable
    all of the licensees to meet the deadline.[^26]

9.  On January 21, 2004, the Bureau's Mobility Division released a
    *Public Notice* seeking comment on Havens Request.[^27] In response
    to the *Public Notice*, we received six comments and three reply
    comments.[^28] Commenting parties generally agree that there is a
    scarcity of equipment for trunked, narrowband voice communications
    in the 220-222 MHz band.[^29] BizCom, which owns manufacturing
    rights for 220 MHz narrowband equipment, states that such equipment
    is available, but that it is not available in sufficient quantities
    to enable all 220 MHz licensees to meet their five-year construction
    deadlines.[^30] Pujari and Two-Twenty assert that the available 220
    MHz 5 kilohertz voice equipment represents "first generation
    technology" and is "outdated and inadequate to meet customer
    demands."[^31] Repeater states that no company is currently
    manufacturing 5 kilohertz portable voice radio units for the band,
    which, "in an era of increasingly small two-way radios," has
    "severely crippled the ability of licensees to compete in the
    marketplace."[^32]

10. GEMC opposes a waiver or extension of the deadline.[^33] GEMC, which
    utilizes its 220 MHz spectrum to provide SCADA services, asserts
    that the 220 MHz service is being used by some licensees and urges
    the Commission to consider requests for waiver or extension of the
    deadline on an individual basis.[^34] GEMC states that this would be
    the most equitable method because it would enable the Commission to
    distinguish between those licensees that have made a good faith
    effort to construct their systems from those that have not, and to
    grant relief accordingly.[^35] GEMC also contends that this approach
    would enable the Commission to recover the spectrum of those
    licensees that do not meet the waiver or extension standards, and
    would provide an opportunity for GEMC and others, which are
    currently operating in the service, to acquire additional spectrum
    to supplement their systems at the re-auction of the recovered
    spectrum.[^36]

11. We also note that numerous licensees electronically filed requests
    for extension through the Commission's Universal Licensing System
    (ULS).[^37] These licensees generally echo the sentiments of the
    commenters. For instance, Tuchman & Brown Investment, Inc. (T & B)
    states that, despite its diligent efforts, the only 220 MHz voice
    equipment that it has located that is compatible with five kilohertz
    bandwidth channels is obsolete.[^38] T & B further states that
    enforcement of the construction deadline would force licensees to
    invest substantial sums in obsolete equipment and, because the
    systems had been constructed with obsolete technology, would result
    in systems with questionable long-term commercial viability.[^39]
    Georgia 220 MHz Alliance, LLC, (Georgia 220) also states that it has
    been hampered by the lack of current equipment, especially portable
    radio units, resulting in the deterioration of the customer base of
    its site-specific 220 MHz system.[^40]

12. On February 10, 2004, BizCom filed a request for a three-year
    extension of both the five-year and ten-year construction
    requirements for its regional and nationwide licenses to allow it to
    construct a coordinated nationwide system comprised of a combination
    of licenses issued during Phase I and Phase II on both a
    site-specific and a geographic basis (*i.e.*, EA, REAG, and
    nationwide licensees).[^41] Thus, BizCom proposes to meet the
    five-year construction requirement for its Phase II licenses within
    eight years of license issuance and the ten-year construction
    requirement within thirteen years of license issuance.

13. Considering the nationwide scope of its planned system, BizCom also
    requests that its regional licenses be subject to the geographic
    area coverage standards of Section 90.769 for nationwide licenses,
    and not the population coverage standards applied to regional
    licenses pursuant to Section 90.767. BizCom makes this request with
    the understanding that it would complete the required construction
    in each of its six REAGs.[^42] BizCom argues that the Commission
    granted similar relief in response to waiver requests from NRTC[^43]
    and Intek[^44] to allow them to efficiently construct a nationwide
    system. BizCom argues this relief is needed because its channels
    fall into different licensing categories that are subject to
    inconsistent and, to some degree, conflicting construction
    requirements and timetables. BizCom states that complying with the
    various construction requirements of its licenses would be unduly
    burdensome and counter to the underlying purpose of the construction
    requirements.[^45]

# DISCUSSION

## Extension of the Construction Requirements

14. A waiver may be granted, pursuant to Section 1.925 of the
    Commission's rules, 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, that
    application of the rule would be inequitable, unduly burdensome, or
    contrary to the public interest, or the applicant has no reasonable
    alternative.[^46] Additionally, an extension of time to complete
    construction may be granted, pursuant to Section 1.946(e) of the
    Commission's rules, if the licensee shows that the failure to
    complete construction is due to causes beyond its control.[^47]
    Furthermore, in recognizing that compliance with construction
    requirements may be difficult at times, 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.[^48]

15. As explained below, we find that it would be in the public interest
    to grant a three year extension of the five-year construction
    requirements for all Phase II 220 MHz EA, regional and nationwide
    licensees subject to this order. Specifically, consistent with the
    Bureau's *Public Notice* in this proceeding,[^49] we grant relief
    only to the Phase II 220 MHz EA, regional and nationwide licensees
    that sought relief by timely filing an extension request of the
    applicable construction deadline. The record indicates that many
    licensees intend to provide commercial services using five kilohertz
    voice equipment and an extension will allow additional time for this
    equipment to be developed. The two companies that originally
    manufactured five kilohertz voice equipment no longer do so.[^50] We
    find that the loss of that equipment was a unique circumstance that
    have frustrated licensees' efforts to meet the construction
    requirements. While promoting spectrum efficiency through advanced
    narrowband techniques is a laudable goal that we continue to pursue
    in many bands,[^51] we do not believe it is reasonable to fault
    licensees who obtained licenses and then faced an unexpected loss of
    equipment.

16. The record indicates that the small amount of narrowband spectrum in
    non-contiguous blocks has presented unique challenges to certain 220
    MHz licensees. While some licensees contend there is a market for
    220 MHz trunked, voice communications equipment, we are persuaded by
    the record that this equipment is scarce presently or faces
    technical and economic challenges. We note an encouraging
    development, in that BizCom has acquired the manufacturing rights
    for 220 MHz trunked, voice communications equipment.[^52] BizCom,
    however, states that it is not currently capable of producing such
    equipment in sufficient quantities to enable all 220 MHz licensees
    to meet their construction deadlines.[^53] We are also encouraged by
    the late-filed comments of Cornerstone,[^54] which state that CX2
    Technologies is developing a portable radio capable of operating on
    5 kilohertz channels in the 220 MHz band which should be available
    in the near future.[^55] It also appears that some licensees are
    aggregating their five kilohertz channels into 12.5 kilohertz
    channels and that there is equipment available to operate trunked,
    voice systems on these wider channels.[^56] We, therefore, find that
    this is a unique situation where there are widespread equipment
    availability difficulties facing licensees and confining technical
    characteristics. We, however, find there is an evolving potential
    for voice applications in the 220 MHz service either through the
    development of new five kilohertz equipment or through the further
    consolidation and deployment of 12.5 kilohertz equipment. A
    three-year extension of the construction deadline is warranted
    because it will provide the equipment market time to develop the
    next-generation digital technology that may allow for viable
    commercial operation of voice or data networks in this band.

17. Further, we find that the flexibility granted by the 1997
    restructuring of the 220 MHz service rules has enabled entities to
    provide a variety of services, including fixed data applications
    without efficiency standards.[^57] The record demonstrates success
    within the 220 MHz service for narrowband data communications.[^58]
    BizCom has demonstrated that a three-year extension would be in the
    public interest to allow it, and other licensees that may be
    consolidating licenses, to deploy new digital technologies in the
    orderly construction of wide-area or nationwide data systems. By
    contrast, the public interest would be ill-served by compelling 220
    MHz Phase II licensees to devote their resources to the construction
    of stopgap, legacy analog systems to meet the construction deadline.
    Our finding is similar to the Bureau's finding in the
    *Nextel/Neoworld Order*, in that BizCom clearly has a plan to
    construct a system using newly developed technology and additional
    time is needed for widespread deployment.[^59]

18. We also note that the Commission recently authorized leasing for the
    220 MHz band, which could enable a variety of service offerings in
    the near term in a flexible fashion that was previously not
    available.[^60] Given this unique case where a large number of
    licenses face equipment availability problems due to technical
    constraints (*e.g*., narrow, non-contiguous channels) and solutions
    appear to be available in the near term; we believe that the new
    secondary markets principles offer flexible options for 220 MHz
    licensees to construct viable systems. We see evidence of this
    happening in this band presently where several parties have
    consolidated licenses in the 220 MHz band to provide wide-area or
    nationwide data operations and others have consolidated licenses to
    enable the use of 12.5 kilohertz voice equipment. The three year
    extension and new equipment developments, combined with the
    flexibility of secondary markets will only enhance a licensee\'s
    ability to overcome the equipment and consolidation challenges
    discussed here and should more rapidly lead to use of this spectrum.
    We envision that licensees could form partnerships with or lease
    their spectrum to other entities that would lead to immediate
    deployment or use without losing the option of using the spectrum
    for different service applications should they develop in the
    future. In addition, spectrum leasing would also address GEMC's
    concern that licensees currently operating in the band need an
    opportunity to acquire additional spectrum to supplement their
    systems. While these developments do not constitute an independent
    justification for granting an extension of time to construct, they
    allow us to conclude that the extension will give licensees a fair
    opportunity to construct systems and place them in service.

19. We therefore believe that a three-year extension of the five-year
    construction requirement will benefit the public interest by
    expediting the provision of services to consumers and lowering
    administrative burdens on licensees. We also see merit in
    consolidating the extended construction deadline, which will ease
    the administrative burden on licensees that are constructing
    integrated regional or nationwide systems comprised of licenses with
    varying deadlines. We find that this relief should be granted to all
    Phase II 220 MHz EA, regional, and nationwide licensees that timely
    sought a construction deadline extension, rather than just licensees
    in particular channel blocks as requested by Havens. Such relief
    will ensure that all licensees are treated equally, and will ease
    the administrative burden on licensees that are consolidating EA,
    regional, and nationwide licenses into integrated systems.
    Additionally, the fact that twenty-three licensees have sought
    relief leads us to believe that the technical and equipment
    challenges in this band are widespread. Accordingly, the five-year
    construction deadline is hereby extended for a three-year period
    until November 5, 2007 for the following: 1) all 220 MHz Phase II
    EA, regional, and nationwide licenses that timely sought an
    extension of the applicable construction deadline, if the
    construction deadline has expired as of the date of the release of
    this order; and 2) all 220 MHz Phase II EA, regional, and nationwide
    licenses with five-year construction deadlines falling after the
    release date of this order.

20. We find that the record supports grant of a limited extension, and
    that a three-year extension is sufficient to permit licensees to
    construct their systems. Accordingly, we deny Havens' request for a
    complete waiver of the five-year construction requirement and
    Bizcom's request for an extension of the ten-year construction
    requirement.[^61]

21. Additionally, Cornerstone urges us to waive rule 90.157,[^62] and
    thereby permit Phase II 220 MHz licensees to discontinue operations
    until the earlier of either (1) the three-year extended construction
    deadline or (2) "end-user radio product is available in sufficient
    quantity to open various geographic markets . . . ."[^63]
    Cornerstone contends that many 220 MHz licensees are small
    businesses with limited capital and this capital would be better
    spent on development of new radio products than site rent, insurance
    and other expenses associated with maintaining existing operations.
    The standards for waiver of the Commission\'s rules are set forth in
    paragraph 14, above. We find that Cornerstone has not demonstrated
    that grant of the waiver would be in the public interest and that it
    has failed to support adequately its request for industry-wide
    relief from section 90.157. We also find that Cornerstone has failed
    to demonstrate that its particularized circumstances warrant
    individual relief from section 90.157. We therefore deny
    Cornerstone's waiver request.

22. Finally, we note that, on April 6, 2004, Access 220, LLC
    (Access 220) submitted information for the purpose of demonstrating
    that it has met the five-year construction requirements for 112
    Phase II 220 MHz licenses by providing an appropriate level of
    substantial service. Access 220 acquired its licenses in August 2002
    and was granted band manager status in October 2002 through a waiver
    request granted by the Wireless Telecommunications Bureau.[^64] In
    its submission, Access 220 states that it has diligently pursued the
    provision of band management services in the 220 MHz band,
    specifically by developing partnerships with equipment manufacturers
    to pursue previously non-existent voice and data solutions for the
    band, and by investing substantial sums in sales and marketing
    efforts. We find it is in the public interest to afford Access 220
    the same relief afforded other 220 MHz licensees as described
    herein. We therefore grant, *sua sponte*, Access 220 a three-year
    extension of the five-year construction requirement of the licenses
    for which it filed substantial service showings. This relief is
    warranted because Access 220 has diligently implemented its band
    manager operations and it will assist Access 220 in overcoming the
    slow development of 220 MHz equipment.[^65] We note that Access 220
    is the only band manager in the 220 MHz service, and we believe that
    this extension is consistent with the Commission's objectives of
    establishing flexibility, eliminating unnecessary regulatory
    burdens, and enhancing the competitive potential of the 220 MHz
    service.

## BizCom Request to Meet Geographic Benchmarks

23. We grant BizCom's request that it be permitted, in the alternative,
    to meet the construction requirements for its regional 220 MHz
    licenses by satisfying the geographic coverage requirement of
    Section 90.769 for nationwide licenses. BizCom is using all of its
    licensed facilities to construct a single integrated nationwide
    system, and it is reasonable to apply a uniform construction
    requirement to the system as a whole, rather than individual
    population coverage requirements for each license area as specified
    in Section 90.767. Consistent with prior Bureau actions, we will
    require BizCom to meet either geographic coverage or population
    coverage benchmarks in each of its six regional areas. We note that
    similar flexibility was granted to other 220 MHz licensees, which
    were consolidating smaller geographic licenses to achieve nationwide
    systems.[^66] Accordingly, in each of its six regional areas on
    channels that have been authorized, BizCom must construct a
    sufficient number of base stations to provide coverage to: (i)
    either a composite area of at least 100,000 square kilometers or
    one-third of the population of the REAG by November 5, 2007,
    and (ii) either a composite area of at least 200,000 square
    kilometers or two-thirds of the population of the REAG on or before
    BizCom's current license expiration dates.

# Ordering ClauseS

24. Accordingly, IT IS ORDERED, pursuant to section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Sections
    0.331, 1.925, and 1.946 of the Commission's rules, 47 C.F.R. §§
    0.331, 1.925, 1.946, that the requests filed by Warren C. Havens and
    BizCom USA, Inc. for waiver or extension of the 220 MHz service
    five-year construction requirements are HEREBY GRANTED to the extent
    discussed herein, and otherwise ARE DENIED.

25. IT IS FURTHER ORDERED that the five-year construction deadline is
    hereby extended for a three-year period until November 5, 2007 for
    the following: 1) all 220 MHz Phase II EA, regional, and nationwide
    licenses that timely sought an extension of the applicable
    construction deadline, if the construction deadline has expired as
    of the date of the release of this order; 2) all 220 MHz Phase II
    EA, regional, and nationwide licenses with five-year construction
    deadlines falling after the release date of this order; and 3) the
    Phase II 220 MHz licenses covered by the Access 220, LLC
    notification of substantial service filing.

26. IT IS FURTHER ORDERED, pursuant to section 4(i) of the
    Communications Act, as amended 47 U.S.C. § 154(i), and Sections
    0.331, 1.925, and 1.946 of the Commission's rules, 47 C.F.R. §§
    0.331, 1.925, 1.946, that the request of Cornerstone SMR, Inc. for
    waiver of Commission rule 90.157 IS HEREBY DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    John Muleta

    Chief, Wireless Telecommunications Bureau

[^1]: *See* Petition to Waive or Extend the Five-Year Construction
    Requirement: Partial Waiver of Section 90.767, with requests to
    apply to other Regional and EA Licenses, filed by Warren C. Havens
    (Jan. 12, 2004) (Havens Request) and "Wireless Telecommunications
    Bureau, Mobility Division Seeks Comment on Warren C. Havens'
    Petition to Waive or Extend 220 MHz Phase II Economic Area and
    Regional Licenses Five-Year Construction Requirement," *Public
    Notice*, DA 04-122 (2004 WESTLAW 89711) (WTB, MD rel. Jan. 21,
    2004).

[^2]: *See* Request for Waiver or Extension of 220 MHz Construction
    Requirements, filed by BizCom USA, Inc. (Feb. 10, 2004) (BizCom
    Request).

[^3]: Generally, Phase I licenses were applied for prior to May 24, 1991
    and were issued by lottery for specific sites or for nationwide
    operations. All subsequent licenses are considered Phase II
    licenses, which generally consist of various channel blocks (*e.g.*,
    5- and 10-paired five kHz channels resulting in 50 kilohertz and 100
    kilohertz channel blocks) auctioned for varying size geographic
    areas (*e.g.*, EAs, regional, and nationwide licenses).

[^4]: 47 C.F.R. § 90.157.

[^5]: *See* Amendment of Part 2 of the Commission's Rules Regarding the
    Allocation of the 216-225 MHz Band, *Report and Order*, GEN Docket
    No. 87-14, 3 FCC Rcd 5287 (1988) (*220 MHz Allocation Order*).

[^6]: The five kilohertz bandwidth was chosen because the narrowbanding
    of voice communications and promoting efficient spectrum use was a
    Commission priority and it was demonstrated that voice
    communications are possible with the use of five kilohertz channels.

[^7]: *See* Amendment of Part 90 of the Commission's Rules to Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Services, PR Docket No. 89-552, *Report and Order*, 6 FCC Rcd 2356
    (1991) (*220 MHz Report and Order*).

[^8]: *See* Amendment of Part 90 of the Commission's Rules to Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, Implementation of Section 309(j) of
    the Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    *Third Report and Order; Fifth Notice of Proposed Rulemaking*, 12
    FCC Rcd 10943 (1997) (*Third Report and Order*).

[^9]: *See* 47 C.F.R. § 90.721.

[^10]: 47 C.F.R. § 90.767(a).

[^11]: 47 C.F.R. § 90.769.

[^12]: *See* "Wireless Telecommunications Bureau Grants 654 Phase II 220
    MHz Licenses," *Public Notice*, 14 FCC Rcd 4444 (Mar. 24, 1999);
    "Wireless Telecommunications Bureau Grants 221 Phase II 220 MHz
    Licenses," *Public Notice,* 15 FCC Rcd 6941 (Oct. 7, 1999). The
    dates of grant include: March 22, March 23, April 16, May 21, May
    24, October 7, November 2 and November 3 of 1999.

[^13]: We also note the Commission concluded Auction \# 43 in January,
    2002, wherein 4 220 MHz geographic area licenses were re-auctioned
    (2 EA licenses and 2 REAG licenses). We do not extend relief to the
    4 licenses granted pursuant to Auction \# 43, as their respective
    five year construction deadlines are in 2007.

[^14]: Havens Request at 3. Havens argues that his request should only
    apply to EA and regional 220 MHz licenses that have trunked channel
    groups and, therefore, relief would not be necessary for 220 MHz
    J-block and E-block licenses.

[^15]: *Id.* at 10.

[^16]: *Id.* at 11.

[^17]: *Id.*

[^18]: *Id.*at 11-12.

[^19]: *Id.* at 12.

[^20]: *Id.*

[^21]: *Id.*

[^22]: Most of the 220 MHz service is made up of narrowband,
    non-contiguous channels. That is, many five kilohertz channels are
    spaced 150 kilohertz away from their paired channels.

[^23]: Havens Request at 7-8.

[^24]: Id. at 18.

[^25]: Id. at 21. Havens contends that the WCS and the 220 MHz service
    are similarly situated and cites the WCS decision where the
    Commission only established a ten-year buildout requirement because
    it was an auctioned service with special technical requirements,
    with an "undeveloped nature of equipment," and would be providing
    "new and innovative services."

[^26]: *See* In the Matter of FCI 900, Inc. Expedited Request for
    Three-Year Extension of 900 MHz Band Construction Requirements and
    Neoworld License Holdings, Inc. Request for Waiver of 900 MHz Band
    Construction Requirements and Petition for Declaratory Ruling,
    *Memorandum Opinion and Order*, 16 FCC Rcd 11072, 11077 ¶ 7 (WTB
    2001) (*Nextel/Neoworld Order*).

[^27]: *See* note 1, *supra*. The *Public Notice* announced that the
    Bureau would not toll the construction requirements for 220 MHz
    licensees pending review of the request and advised that licenses
    that were not timely constructed or for which timely extension
    requests were not filed would terminate automatically.

[^28]: Seven of the nine parties (including Havens and BizCom)
    commenting in this proceeding support a waiver or an extension.
    *See* Comments of Nirmal and Helene Pujari (Pujari) at 1; Comments
    of Two-Twenty Auction Co., Inc. (Two-Twenty) at 1; Comments of
    Cornerstone SMR, Inc. (Cornerstone) at 3; Comments of Deltacom,
    Repeater Network Spectrum Aq. Inc., and Mobile Communications
    Service of Miami, Inc. (collectively, Repeater) at 4; Comments of
    Venture Communications, Inc. (Venture) at 6. Two parties oppose a
    waiver or extension. *See* Comments of GEMC 220, LLC (GEMC) at 1;
    Reply Comments of Texas License Consultants (TLC). We note that TLC
    withdrew its Reply Comments. We also accepted late-filed Comments of
    Cornerstone SMR, Inc. (April 9, 2004) and late-filed Reply Comments
    of Two-Twenty (March 9, 2004) and Havens (April 12, 2004).

[^29]: Havens Request at 4; Venture Comments at 3; Pujari Comments at
    1-2; Two-Twenty Comments at 1-3.

[^30]: BizCom Reply Comments at 3.

[^31]: Pujari Comments at 2, Two-Twenty Comments at 3.

[^32]: Repeater Comments at 3-4.

[^33]: *See* GEMC Comments.

[^34]: GEMC Comments at 3-4.

[^35]: *Id.*

[^36]: *Id.*

[^37]: Requests for waiver or extension have been filed electronically
    by twenty-three licensees, which collectively hold 318 220 MHz Phase
    II licenses.

[^38]: *See* Universal Licensing System file number 0001610428,
    Attachment at 1.

[^39]: *Id.*

[^40]: *See* Universal Licensing System file number 0001662794,
    Attachment at 4-5.

[^41]: BizCom Request at 6. We note that, in his Reply Comments of
    Warren C. Havens to Late-Filed Comments of Texas License Consultants
    ("TLC") and Late-Filed Comments of BizCom (filed April 12, 2004),
    Havens opposes BizCom's request, seemingly because BizCom's request
    is based on circumstances which are different from the circumstances
    upon which Havens' request is based. In this filing, Havens also
    objects to claims made by TLC in its reply comments. However, TLC
    has withdrawn its reply comments, therefore the issue is moot.

[^42]: *Id* BizCom is proposing that, in each of its six REAGs, it will
    construct 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 eight years of
    license issuance; and (2) either a composite area of at least
    200,000 square kilometers or two-thirds of the population of the
    REAG within 13 years of license issuance.

[^43]: *See* In the Matter of National Rural Telecommunications
    Cooperative, LLC, Request for Waiver and Consolidation of 220 MHz
    Construction Requirements, *Memorandum Opinion and Order*, 15 FCC
    Rcd 13402 (WTB CWD Aug. 4, 2000) (*NRTC MO & O*). In the *NRTC
    MO&O*, the Bureau's former Commercial Wireless Division (Division)
    found that it is reasonable to apply a uniform set of construction
    requirements to a licensee that is building an integrated nationwide
    system.

[^44]: *See* In the Matter of Intek License Acquisition Corp., Request
    for Waiver and Consolidation of 220 MHz Construction Requirements,
    *Memorandum Opinion and Order*, 16 FCC Rcd 16431 (WTB CWD 2000)
    (*Intek MO& O*). In the *Intek MO&O*, the Division concluded that it
    would be unduly burdensome to apply the various construction rules
    to a 220 MHz licensee that held three different types of licenses
    and planned to build a single nationwide system.

[^45]: *Id.*

[^46]: 47 C.F.R. § 1.925. Alternatively, pursuant to Section 1.3, 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).

[^47]: 47 C.F.R. § 1.946. Section 1.946(e) also enumerates specific
    circumstances that would not warrant an extension of time to
    complete construction. 47 C.F.R. § 1.946(e)(2)-(3).

[^48]: *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).

[^49]: *See* note 27, *supra*.

[^50]: *See* Havens Comments at 10, Two-Twenty Comments at 1-3.

[^51]: *See 220 MHz Report and Order*, 6 FCC Rcd at 2364-65 ¶¶ 59, 62.
    As mentioned above, in 1991, the Commission chose to pursue its goal
    of encouraging the development of spectrally efficient technologies
    by adopting service rules for the assignment of 200 five kilohertz
    channel pairs in the 220-222 MHz band. The result is that the
    channelization of the 220 MHz service (*i.e.*, non-contiguous
    channel pairs which are separated to enable trunked operations) is
    unique.

[^52]: *See* BizCom Reply Comments at 2.

[^53]: *See* *id.* at 3.

[^54]: Cornerstone filed its comments on April 9, 2004. We found it was
    in the public interest to accept Cornerstone's late-filed comments
    because they contained pertinent information of which we were not
    previously aware.

[^55]: *See* Cornerstone Comments at 2.

[^56]: *See* Havens Request at 12.

[^57]: *See Third Report and Order.*

[^58]: *See* GEMC Comments at 1-3, TLC Comments at 4.

[^59]: *See Nextel/Neoworld Order* at 6.

[^60]: In the Matter of Promoting Efficient Use of Spectrum through
    Elimination of Barriers to the Development of Secondary Markets,
    *Report and Order and Further Notice of Proposed Rulemaking,* 18 FCC
    Rcd 20604 (2003) (*Secondary Markets R & O*).

[^61]: Therefore, the applicable ten-year construction requirement for
    all 220 MHz Phase II licensees remains the respective license
    expiration date of each authorization. We decline to set a
    consolidated ten year construction deadline because license renewal
    deadlines fall on different dates in 2009.

[^62]: 47 C.F.R. § 90.157. Section 90.157 provides that "\[a\] station
    license shall cancel automatically upon permanent discontinuance of
    operations," and that "any station which has not operated for one
    year or more is considered to have been permanently discontinued."
    *Id.*

[^63]: Cornerstone Comments at 3.

[^64]: In 2002, the WTB granted Access 220's request for waiver of
    sections 90.733, 90.725, and 90.769 of the Commission's rules in
    order to allow it to act as a band manager in the 220 MHz service.
    *See* Request for Waivers to Provide Band Management Services
    Utilizing Licenses in the 220-222 MHz Band, WT Docket No. 02-224,
    *Memorandum Opinion and Order*, 17 FCC Rcd 20464 (2002) (*"Access
    220 Order"*). In doing so, the WTB stated that because most of
    Access 220's spectrum will be leased to third parties, it must
    necessarily allow Access 220 to rely on the construction activities
    of third parties in order to meet its build-out requirements. The
    WTB also allowed Access 220 to meet its construction requirements by
    making a substantial service showing for its one Phase I nationwide
    license and its two Phase II nationwide licenses.

[^65]: *See* 47 C.F.R. §§ 1.925(a) (Commission may waive specific
    requirements of the rules on its own motion), 0.331 (authority
    delegated).

[^66]: *See* *NRTC MO&O,* 15 FCC Rcd 13402 (2000) and *Intek MO &O*, 16
    FCC Rcd 16431 (2000).