Before the        DA 95-481
                     FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D.C.  20554


In the Matter of      )
     )
Interactive Video and Data Service     ) 
(IVDS) Licenses       )
     )
Requests by Lottery Winners to   )
Extend Construction Deadline     ) 
 
                                   ORDER
 
     Adopted:  March 13, 1995    Released:  March 13, 1995

By the Chief, Wireless Telecommunications Bureau:  
             
     1.  Six licensees in the Interactive Video and Data Service (IVDS) have requested a
waiver of Section 95.833(a) of the Commission's Rules, which requires that each IVDS
system licensee make service available to at least 10 percent of the service area population or
geographic service area within one year of the grant of the license, 30 percent of such 
"build-out" within three years, and 50 percent within five years.  The petitioners' licenses
were awarded by lottery held September 15, 1993, and were granted on March 28, 1994.  By
this Order, we waive the one-year IVDS build-out requirement rule for the six licenses.  This
Order is effective immediately upon release.  




     2.  The petitioners note, first,  that until October 20, 1994, a court case was pending
that challenged the lottery process used to award these licenses, and that, currently, three
Applications for Review before the Commission make similar challenges and might well, if
denied, be appealed through the court system.  They assert that these challenges have created,
and continue to create, uncertainty concerning the continued validity of their licenses, and
particularly note that this has made financing more difficult.  They argue that their licenses
should be free from such uncertainty before system construction is required, because such
uncertainty creates justifiable reluctance to commit to binding decisions concerning financing,
equipment purchasing, and other considerations related to construction.  Enforcement of the
current build-out requirement, they argue, will force such decisions prematurely, or, worse,
result in an automatic cancellation of licenses and resultant delay of service to the public. 
They therefore assert that a delay in initial system construction is in the public interest. 

     3.  Two of the entities that have filed the above-noted Applications for Review oppose
the requests.  These entities assert that the lottery procedure was flawed and, therefore, the
granting of the subject licenses was improper.  The entities do not address the specific basis
for relief cited by petitioners, but only state broadly that such waivers would undermine the
integrity of the general rule.  



     4.  Pursuant to Section 1.3 of the Commission's Rules, the Commission may waive a
provision of its rules "if special circumstances warrant a deviation from the general rule and
such deviation will serve the public interest."  Northeast Cellular Telephone Co. v. FCC, 
897 F.2d  1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d 1153, 1159
(D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972)).  Here, the general rule was intended
"to reduce the filing of speculative applications by entities that have no real intention of
implementing [IVDS] systems and to avoid the potential for warehousing of IVDS spectrum." 
On the facts before us, we find that the standard for waiver is met.  There has been no
evidence presented of speculation or warehousing, and we find it would be unreasonable to
require the petitioners to meet the current build-out requirements, given the uncertainty that
exists concerning their licenses.  Moreover, we find that waiving the one-year construction
deadline will not result in delays in service to the public because these licensees will still be
required to satisfy the three-year and five-year construction benchmarks.  Moreover, we
believe that providing licensees with additional flexibility in satisfying the construction
benchmarks is desirable and consistent with our intent to allow for more flexible use of the
spectrum. 

     5.  Our decision makes moot the additional argument made by four petitioners that
an alleged lack of IVDS equipment prevents the licensees from ordering and receiving
equipment in time to meet the build-out requirement. 







     6.  Accordingly, IT IS ORDERED that the requests of the licensees for waiver of
Section 95.833(a) of the Commission's Rules, 47 C.F.R.  95.833(a), ARE GRANTED to the
extent that we waive the one-year construction requirement, while retaining the three-year 
and five-year requirements, for the six subject licenses.  All other requests ARE DENIED. 
This action is taken pursuant to Section 1.3 of the Commission's Rules, 47 C.F.R.  1.3, by
delegated authority.   IT IS FURTHER ORDERED that this action IS EFFECTIVE UPON
RELEASE.


                                                    FEDERAL COMMUNICATIONS COMMISSION


                                                    Regina M. Keeney 
                                                    Chief, Wireless Telecommunications Bureau