WPCuL 2MBVRKZ3|n7jC:,y&Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4Si lpt2HPLAS4SI.PRSXj\  P6G;\[fXP2]K Z7 X-  #Xj\  P6G;y&XP#3|n"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4Si lpt2HPLAS4SI.PRSXj\  P6G;\[fXP2B-lv\pTimes New RomanCourierTimes New Roman Bold ~9-#n6X@`7&@##n6X@`7&@#a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2e ktkJ v a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2 t   H BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2  !  Aa3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2; a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p a1DocumentgDocument Style StyleXqq   l ^) I. ׃  Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technical2Eia5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2wea4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 24/ eOPleadingHeader for numbered pleading paperP@n   $] X X` hp x (#%'0*,.8135@8:=i>>?Footnote;Íčfootnote tex#<'p #FxX  Pg9CXP#header=Ax 4 <D  #FxX  Pg9CXP# reference>;#FxX  Pg9CXP#2SF?~@@i=BA^CBOEitemizeX1?&V 8F ` hp xr#FxX  Pg9CXP#header2@I ` hp x`    #FxX  Pg9CXP# heading 3AF` hp x #FxX  Pg9CXP# footer!B!!#d\  PCP#2XFKGK(JsL7jC:,yoXj\  P6G;XP<~9nnn,n6X@`7&@7nC:, X-ԍ #Xj\  P6G;yoXP#See generally Report and Order in GEN Docket No. 912, 7 FCC Rcd 1630 (1992). have requestedb Ky> Xu-ԍ#Xj\  P6G;yoXP# The licensees and filing dates of their requests are as follows: Bay Interactive Ventures Ltd. (Bay), call sign KIVD0003, February 17, 1995; Anthony K. Benison (Benison), KIVD0018, August 25, 1994, and March 8, 1995; Cristina P. Del Valle, KIVD0002, February 8, 1995; Kingdon R. Hughes (Hughes), KIVD0008, August 25, 1994, and March 8, 1995; Luz Lobaton, KIVD0017, February 8, 1995; and Vinod K. Sood (Sood), KIVD0005, August 25, 1994, and March 8, 1995. We have received additional waiver and rule making requests concerning licenses awarded as a result of the initial IVDS auction held July 2829, 1994. The Commission is considering whether to initiate a rule making proceeding to address suggested amendments to the buildout requirements of Section 95.833(a). b a  X4-waiver of Section 95.833(a) of the Commission's Rules,4[ > X@ -ԍ #Xj\  P6G;yoXP#47 C.F.R.  95.833(a).#Xj\  P6G;yoXP#ё 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 "buildout" 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 oneyear IVDS buildout requirement rule for the six licenses. This Order is effective immediately upon release. "e 0*0*0*"Ԍx2. The petitioners note, first, that until October 20, 1994, a court case was pending  X-that challenged the lottery process used to award these licenses,, Xb-ԍ Larry M. Warner, Esq., Trustee, John Calvin Kemmer Inter Vivos Trust v. FCC,  XK-No. 931668 (D.C. Cir.). The case was dismissed on October 20, 1994 and that, currently, three  X-Applications for Reviewb, X-ԍ See Genesis Perpetual Trust, "Application for Review," filed October 18, 1993; Edward M. Johnson, "Application for Review," filed March 25, 1994; Jan M. Reed, "Application for  X-Review," filed March 25, 1994. These filings request, inter alia, that the results of the lottery be invalidated. These entities have also filed additional, subsequent applications or petitions, challenging the March 28, 1994, issuance of licenses.  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 buildout requirement, they argue, will force such decisions prematurely, or, worse,  X -result in an automatic cancellation of licenses and resultant delay of service to the public. , X-ԍ We note that eighteen licenses (covering nine IVDS service areas) were granted as a result of the lottery, and only six licensees have requested a waiver of the construction requirement. One of the remaining twelve licensees, IVD Company, call sign KIVD0013, originally requested a waiver, then withdrew its request because it assertedly had met the  X&-oneyear requirement. Ľ They therefore assert that a delay in initial system construction is in the public interest. x3. Two of the entities that have filed the abovenoted Applications for Review oppose  X -the requests.H , X{-ԍ See Edward M. Johnson, "Opposition to Request for Extension of Time to Construct IVDS Facilities," filed February 17, 1995; Jan M. Reed, "Petition to Rescind Authorizations," dated January 11, 1995; Letter from Jan M. Reed to FCC, dated February 16, 1995. Replies to these oppositions were filed by Cristina P. Del Valle and Luz Lobatan on February 22, 1995. The third entity challenging the lottery proceeding and its results, Genesis Perpetual Trust, does not oppose the waiver requests because it "believes that a new lottery or auction will be held for the subject license[s] and any construction extension will become moot." Letter from Genesis Perpetual Trust to FCC, dated February 16, 1995.  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. "K0*((+"Ԍ X-ԙx4. Pursuant to Section 1.3 of the Commission's Rules,d, Xy-ԍ#Xj\  P6G;yoXP# 47 C.F.R.  1.3.d the Commission may waive a provision of its rules "if special circumstances warrant a deviation from the general rule and  X-such deviation will serve the public interest." Northeast Cellular Telephone Co. v. FCC,  X-897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d 1153, 1159  X-(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  Xv-implementing [IVDS] systems and to avoid the potential for warehousing of IVDS spectrum." vy, X -ԍ Report and Order, supra note 1, at 1640  73; see Memorandum Opinion and Order  in GEN Docket No. 912, 7 FCC Rcd 4923, 4925  13 (1992). 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 buildout requirements, given the uncertainty that  X -exists concerning their licenses.  , X-ԍ See, e.g., In re Rainbow Broadcasting Co., FCC 94122, 9 FCC Rcd 2839, 2846  37  X-(1994); see also Public Notice, DA 921231, 57 Fed.Reg. 41935, 41936 (Sept. 14, 1992). Moreover, we find that waiving the oneyear construction deadline will not result in delays in service to the public because these licensees will still be required to satisfy the threeyear and fiveyear 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.  Xy-x5. Our decision makes moot the additional argument made by four petitioners y, X-ԍ#Xj\  P6G;yoXP# See Bay, Benison, Hughes, and Sood filings, supra note 2. that an alleged lack of IVDS equipment prevents the licensees from ordering and receiving  XK-equipment in time to meet the buildout requirement. vK^ , XZ-ԍ We have previously stated that we do not intend to relieve IVDS licensees of the construction requirements on the basis that development or deployment of equipment has  X,-taken longer than might have been anticipated. See Report and Order, supra note 1, at 1639  X- 66; Order, Answers to Questions from the June 6, 1994 Bidders Seminar of the Auction of Narrowband Personal Communications Services (PCS) Licenses and Interactive Video and  X -Data Service Licenses, Mimeo 43550, released June 17, 1994, at Question 52. " 0*((p"Ԍ X-x6. Accordingly, IT IS ORDERED that the requests of the licenseesH , Xy-ԍ See note 2, supra.H for waiver of  X-Section 95.833(a) of the Commission's Rules, 47 C.F.R.  95.833(a), #Xj\  P6G;yoXP#ARE GRANTED to the extent that we waive the oneyear construction requirement, while retaining the threeyear and fiveyear 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