******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) HAWAIIAN WIRELESS PARTNERS) ) Request for Waiver of SMR Application)File Nos. D016248 through Freeze and Additional Channel Policy) D016280 for Thirty-Three (33) Applications) for New SMR Stations) ) ORDER Adopted: December 9, 1996 Released: December 9, 1996 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On December 14, 1995, Hawaiian Wireless Partners ("HWP"), filed a request seeking a waiver of the 800 MHz SMR application freeze, and the requirement that 800 MHz SMR licensees complete construction and commence service to subscribers in an area before seeking additional channels. Grant of the request will allow HWP to implement a wide-area digital SMR system on the island of Oahu, Hawaii. For the following reasons, we grant HWP's waiver request to the extent stated below. Grant of this waiver is subject to the outcome of the Commission's pending 800 MHz rule making in PR Docket 93-144, and resolution of HWP's Extended Implementation Rejustification filings. II. BACKGROUND 2. On June 23, 1994, HWP requested an extended implementation authorization to implement a wide-area trunked enhanced SMR system throughout the state of Hawaii. In its request, HWP advised the Commission that it had formed a coalition of SMR licensees to create such a system. When it filed its request, HWP was the manager of the SMR stations participating in the wide-area system, though it had option agreements to purchase the systems. HWP filed supplemental requests on September 14, 1994, February 23, 1995, and June 14, 1995, to include additional partners whose authorizations had been granted after HWP's initial filing. 3. The Commission granted extended implementation authority to HWP on April 4, 1995 and July 19, 1995, conditioned on the outcome of the Commission's proceedings in PR Docket No. 93-144. HWP was granted a five-year construction period expiring on April 4, 2000. In the First Report and Order in PR Docket 93-144, however, this period was shortened to a maximum of two years from the June 18, 1996, deadline for filing extended implementation rejustification requests, depending on the disposition of HWP's rejustification request. HWP also filed a request on March 1, 1996 to include additional, recently granted 800 MHz stations in its extended implementation authorization. The Commission has not yet acted on that Request. 4. On August 31, 1994, the Commission granted DCL Associates, Inc. ("DCL") extended implementation authority to develop a wide-area SMR system throughout the United States, including Hawaii. Subsequent to the extended implementation grant, DCL subcontracted certain management duties in Hawaii to HWP. By letter dated November 27, 1995, DCL and HWP requested that the Hawaiian SMR stations that previously had been granted extended implementation under DCL's extended implementation grant be deleted from DCL's extended implementation authority and added to HWP's extended implementation authority in the Hawaiian islands without altering any term or condition of the respective DCL and HWP authorizations. The FCC granted that Request on February 7, 1996. III. DISCUSSION 5. Currently, HWP holds licenses for twenty-two 800 MHz analog SMR stations in Hawaii and has seventy-three SMR licensees participating in its system. HWP proposes to redeploy frequencies associated with thirty-six of its participating stations to thirty-three new low power sites on the island of Oahu so that it can create a digital system that will provide networked, wide-area, interconnected service. To implement the digital system, HWP requests a waiver of the 800 MHz SMR application freeze that was imposed in the CMRS Third Report and Order in August 1994. HWP also requests waiver of the limitation on acquiring additional SMR channels, also established by the CMRS Third Report and Order, so that it can minimally extend its interference contours and reuse its already licensed channels at the new sites. 6. Given Oahu's island geography, the way HWP's channels have been licensed in the Hawaiian Islands, and the Commission's short-spacing rules, HWP argues that granting its waiver will not materially extend its current system footprint because there is no other actual or potential SMR licensee that would be able to use these channels in the same or any adjacent area. HWP asserts that granting its waiver request will not violate the intent of the freeze because HWP's proposed build-out in Oahu will not infringe upon any licensed or potentially licensable geographic area. A. Waiver of the 800 MHz Freeze 7. In the CMRS Third Report and Order, the Commission suspended the acceptance of applications for 800 MHz SMR channels. However, the Commission stated that it would "consider requests for waiver of the application freeze for new station licenses for permanent facilities, provided that operation of such proposed stations affects coverage solely within a geographic area and on a frequency channel that already is licensed permanently to the applicant(s), i.e., there is no infringement of new spectrum or previously uncovered geographical areas." We have indicated that under this standard, we will grant waivers to licensees on lower 80 and General Category channels that do not alter the 40 dBu contour of their existing authorizations. In an Order released October 23, 1996, we also stated that wide-area SMR licensees who had obtained extended implementation under the Fleet Call order could be eligible for a waiver of the freeze to apply for sites within an existing geographic footprint on aggregately loaded channels otherwise licensed to the applicant within the footprint. 8. HWP's waiver request would extend the contours of its facilities beyond the predicted 40 dBu contours of its current authorizations. Further, because HWP's system is not yet fully constructed or loaded, it does not come within the exception to the freeze for wide-area systems described in the Waiver Order. However, because of the geography of Oahu and its distance from adjacent islands, HWP's request to extend its coverage on Oahu does not infringe on any new spectrum or previously uncovered geographical area that could be licensed to any other entity. We conclude that this constitutes a unique circumstance that justifies grant of HWP's request in substantial part. Moreover, granting HWP's waiver request is in the public interest because it will enable HWP to implement a wide-area SMR service that can compete with other CMRS services offered on Oahu. 9. The Commission's rules ordinarily require a minimum of seventy miles between co- channel licensees, which may be reduced to a minimum of fifty-five miles if licensees reduce antenna height and power in accordance with the Commission's short-spacing rules. As a result, absent an agreement between licensees, co-channel licensees cannot be closer than fifty-five miles apart. Because Oahu is approximately forty-five miles long and thirty miles wide, there are no two points on Oahu that are more than fifty-five miles apart. Thus, the existing assignment of a channel to HWP on Oahu prevents the assignment of the same channel to any other party elsewhere on the island. 10. In addition, allowing HWP to modify its Oahu authorizations will not prejudice any actual or potential SMR licenses on any of the adjacent Hawaiian Islands. Kauai, the island closest to Oahu's west coast, is more than seventy miles away. Therefore, although relocation of HWP's frequencies toward the west of Oahu could expand its footprint beyond its 40 dBu contour, it would have no impact on current or potential licensees located on Kauai because no land-based facilities could be located within seventy miles of Oahu's west coast. Similarly, with two exceptions, the waiver request does not affect potential licensing on Molokai and Lanai, the islands immediately east of Oahu. Every frequency subject to HWP's request on Oahu is also licensed on Maui, which lies on the far side of Molokai and Lanai from Oahu. With respect to all but two of the channels, the licensing of sites on Oahu and Maui precludes any licensing on Molokai or Lanai, because all points on these two islands are within fifty-five miles of a previously licensed site. 11. On channels 422 and 440, there is an area of Molokai that is not within fifty-five miles of any licensed site on Oahu or Maui. Thus, on these two channels it is theoretically possible for a new licensee to provide service on Molokai. Allowing HWP to expand on these channels would be inconsistent with the waiver policy established in the CMRS Third Report and Order because there the potential exists for another entity to obtain authorizations on these two channels. Hence, allowing HWP to alter its 40 dBu contours on these two channels could allow HWP to infringe upon new spectrum and/or uncovered geography that could be licensed to another entity. Therefore we will not allow HWP to expand its 40 dBu contours on these two channels. B. Waiver of the Additional Channel Policy 12. To further regulatory parity with other CMRS services but prevent spectrum warehousing, the Commission requires SMR licensees to construct and commence service to subscribers in an area before they may seek additional channels in the same area. HWP seeks a waiver of this requirement because it has not fully constructed or commenced service in some areas where it wishes to redeploy frequencies. To obtain a waiver of the Commission's rules, a petitioner must demonstrate that its circumstances are unique and that good cause exists to justify the requested relief. We conclude that HWP's request meets this standard. First, while HWP's system is not fully constructed or operational, this waiver will enable HWP to construct thirty-three new lower power sites throughout Oahu so that it can implement digital SMR service throughout the island. Second, the HWP plan does not prejudice any other existing or potential SMR licenses because the frequencies that are part of this waiver request are already authorized throughout Oahu to HWP or other participating licensees in HWP's system, and could not be licensed to any non-participating entity. IV. ORDERING CLAUSE 13. Accordingly, pursuant to authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, IT IS HEREBY ORDERED that the Request for Waivers filed by Hawaiian Wireless Partners is hereby GRANTED to the extent stated herein. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar Chief, Wireless Telecommunications Bureau APPENDIX A LIST OF PARTICIPATING LICENSEES SUBJECT TO HAWAIIAN WIRELESS PARTNERS' REQUEST FOR WAIVER APPENDIX B MAPS OF 800 MHz SMR LICENSEES OPERATING ON CHANNELS 422 AND 440 IN THE HAWAIIAN ISLANDS