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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Request of Pinpoint Communications ) Networks, Inc., Mobilevision, L.P., ) Uniplex Corporation and Roger D. ) Linquist for Waiver of Section ) 90.363(d) of the Commission's Rules ) ORDER Adopted: July 25, 1996 Released: July 25, 1996 By the Chief, Wireless Telecommunications Bureau: 1. With this Order, we extend by 60 days the deadline for grandfathered operators in the Location and Monitoring Service (LMS) to construct their systems and put them into operation. We are persuaded that additional time is necessary in light of the Commission's delay in resolving certain issues on reconsideration and in issuing licenses. Moreover, we do not believe that this minimal extension will compromise the purpose of this proceeding, which is to establish final rules for this developing service and to facilitate a smooth transition to geographic area licensing via competitive bidding. 2. Background. In Amendment of Part 90 of the Commission's Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems, Report and Order, PR Docket No. 93-61, 10 FCC Rcd 4695 (1995), 60 FR 15248 (March 23, 1995) (LMS Report and Order), the Commission conferred grandfathered status on multilateration LMS licensees who had not constructed their systems so that such licensees could construct and operate their licensed stations under the new LMS rules adopted in the LMS Report and Order. The Commission concluded that such systems must be constructed and operational by April 1, 1996, and must comply with the new rules by that date. The LMS Report and Order directed existing licensees to file applications to modify their licenses to reflect operations consistent with the new band plan for multilateration systems. In its Order on Reconsideration, PR Docket No. 93-61, FCC 96-115 (released March 21, 1996), 61 FR 18981 (April 30, 1996), the Commission extended the deadline for construction of grandfathered multilateration LMS facilities to September 1, 1996. 3. Pleadings. On May 23, 1996, Pinpoint Communication Networks, Inc., Mobilevision, L.P., Uniplex Corporation and Roger D. Linquist (Petitioners) jointly filed a request for waiver of Section 90.363(d) of the Commission's Rules. The requested waiver would extend the time by 60 days, from September 1, 1996, to November 1, 1996, for the parties to construct and place in operation their grandfathered LMS licenses. Petitioners contend that additional time is necessary because a delay in resolving certain issues raised on reconsideration delayed issuance of their licenses and held up their commencement of construction. In particular, Petitioners submit that the emission mask designated by the Commission in the LMS Report and Order rendered their proposed systems inoperable. They contend that until the Commission made a determination on reconsideration with respect to that issue, they could not attract investors. They further contend that, even with combined resources as a result of their proposed merger, they could not place their entire system into operation by the September 1 deadline. In addition, they argue that the construction period is shorter than construction periods for other, less complex, services. 4. Comments on the waiver request were filed by CellNet Data Systems and by the American Mobile Telecommunications Association, Inc. (AMTA). CellNet submits that "a sixty day extension, by itself, does not appear to be a significant matter" but contends that the waiver should not be granted because it "raises serious issues as to whether the public interest is served by the anticipated merger that will be facilitated by such extension." CellNet asserts that the parties' decision to delay construction was a private business judgment and does not justify an extension of the grandfathering deadline. It also submits that the proposed merger of the four parties contradicts the purpose of the LMS proceeding, which was to stimulate competition in the LMS industry. AMTA, on the other hand, supports the waiver request. AMTA submits that the Commission typically grants licensees at least 12 months to construct after licenses are issued and the technical specifications of the system are known. 5. In response to CellNet, Petitioners argue that CellNet's opposition to their merger is not yet ripe for review and is not actually an objection to the 60-day extension. They reiterate that there are unique factors beyond their control that justify the waiver, and they argue that the waiver is in the public interest because it will enable them to provide service to the public and will avert waste of previous investment in their facilities. They also submit that CellNet is incorrect in speculating that they have not been actively pursuing financing or preparing for construction. 6. Discussion. We are persuaded that an extension of the grandfathering period in this situation is warranted. Pursuant to Section 90.151 of the Commission's Rules, a Part 90 provider requesting a rule waiver must show (1) that unique circumstances are involved and (2) that there is no reasonable alternative solution within existing rules. Pinpoint, Uniplex, MobileVision and Linquist have satisfied these two criteria. 7. There are a number of factors that make this situation unique. Petitioners are asking for an extension of a one-time opportunity for existing but unconstructed licensees to conform to the new LMS band plan. Further, we note that the Commission's release of the LMS Order on Reconsideration was delayed significantly by two federal government furloughs and a week- long shutdown of the agency due to inclement weather. The decision that was finally released in March of 1996 made changes to the applicable emission mask. Shortly thereafter, the Commission issued licenses for grandfathered LMS systems. Although pre-grant construction is permissible in the LMS service, it was not practicable for Petitioners to begin construction without being certain of the final emission mask rule. Construction was also impracticable before the parties knew whether all the sites for which they applied were included in the license. Some locations were ultimately denied, necessitating system redesign. Petitioners indicate that they are now prepared to begin construction. 8. In addition, we believe that grant of the extension will promote competition in the multilateration LMS industry. At present there is only one operating multilateration LMS system in the U.S. It appears from the record presented that our extension of the construction period is necessary to facilitate the development by petitioners of a competitive system. As such, we believe that this brief extension will provide significant benefits to LMS customers without substantially delaying our transition to wide-area licensing and spectrum auctions for this service. 9. IT IS THEREFORE ORDERED that the Request for Waiver filed by Pinpoint Communication Networks, Inc., Mobilevision, LP, Uniplex Corporation and Roger D. Linquist, IS GRANTED, and the parties will be permitted until November 1, 1996 to construct their grandfathered multilateration LMS facilities and put them into operation. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar Chief, Wireless Telecommunications Bureau