WPC5W 2MBVRKZ3|j 7jC:,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$CWddddddddddddddddddddddddddddddddddddddddNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4HPLAS4.PRSXj\  P6G;\fRpXP2yEK Z X-#XP\  P6QXP#3|j"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddN"E?~E@i3Gheader=Ax 4 <D  #FxX  Pg9CXP# reference>;#FxX  Pg9CXP#itemizeX1?&V 8F ` hp xr#FxX  Pg9CXP#header2@I ` hp x`    #FxX  Pg9CXP# 2PA^HBO,JK{KKMheading 3AF` hp x #FxX  Pg9CXP# footer!B!!#d\  PCP#"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd"i~'^#)0<8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFddddddddddddddddddddddddddddddddddddddddN$<<$.2",2222`2 LL2 LL2L"",,2d""and Data Service (IVDS) licensees._ Xa {O- xԍ Order, 10 FCC Rcd 4014 (Wireless Telecom. Bureau 1995) (Order I). The licensees were Bay Interactive  x,Ventures Ltd., call sign KIVD0003; Anthony K. Benison, KIVD0018; Cristina P. Del Valle, KIVD0002; Kingdon  xR. Hughes, KIVD0008; Luz Lobaton, KIVD0017; and Vinod K. Sood, KIVD0005. Subsequently, the Bureau  {Om- xgranted similar waivers to eleven other IVDS licensees. Order, 10 FCC Rcd 4546 (Wireless Telecom. Bureau 1995)  {O7-(Order II). _ Pursuant to Section 1.3 of the Commission's Rules,  x47 C.F.R.  1.3, a waiver of the subject rule is appropriate "only if special circumstances warrant  X- xa deviation from the general rule and such deviation will serve the public interest.""a {O- xԍ Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see also WAIT Radio v.  {Oe-FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972)." The Bureau  xdetermined that the standard for waiver was met due to the uncertainty regarding the continued  X- xLvalidity of the licenses at the time when the requirement was to be met by the IVDS licensees.Qj a {O"-ԍ Order I, 10 FCC Rcd at 401415. Q  X- xEdward M. Johnson (Johnson) filed an Application for Review of the Order,e a yOD%-ԍ Application for Review filed by Johnson on April 12, 1995. e to which licensees" ,))ZZ3"  X- xCristina Del Valle (Del Valle) and Luz Lobaton (Lobaton) filed Oppositions.Vz {Oy- x<ԍ Del Valle and Lobaton were among the six licensees granted waivers pursuant to Order I. The Oppositions  xwere filed on May 4, 1995, along with two "Motion[s] for Acceptance of LateFiled Pleading." The Oppositions  x,were filed one week late, and the accompanying Motions explain that counsel did not actually receive their copy of  xthe mailed Application for Review until May 1, 1995. The Motions are unopposed. We find that, in light of  xZcounsel's explanation, there is good cause to grant the Motions. We therefore grant the Motions and accept the  xiOppositions. The Oppositions generally support the Bureau's rationale for granting the waivers, as quoted in the present text at paragraph two.V By this  X- xMemorandum Opinion and Order, we deny the Application for Review and affirm the Order, finding that Johnson has failed to show that the waiver grants should not be upheld.  X-  x2. Background. When the IVDS licensees filed the waiver requests which were the  X- x[subject of the Order, Section 95.833(a) of the Commission's Rules required system licensees to  xmake service available to at least 10 percent of the service area population or geographic service  xarea within one year of the grant of the license, 30 percent within three years, and 50 percent  XN- xxwithin five years./N  yO - xԍ 47 C.F.R.  95.833(a). The rule was subsequently amended to remove the oneyear requirement, leaving the  {O-rule with threeyear and fiveyear requirements. Report and Order, WT Docket No. 95131 (released Jan. 16, 1996)./ The licensees argued that the waiver requests were justified due to uncertainty  X7- xregarding the continued validity of their licenses.L7d  {OL-ԍ Order I, 10 FCC Rcd at 4014.L The licensees noted that a court case  xchallenging the lottery process used to award their licenses had only recently been dismissed, and  X - xthat pending Applications for Review before the Commission made similar challenges.^   {O- xԍ Id. at 4014 & nn.45. The U.S. Court of Appeals for the District of Columbia Circuit dismissed the court  xchallenge on October 20, 1994. Warner v. FCC, No. 931668 (D.C. Cir. Oct. 20, 1994), 1994 Westlaw 663051.  {OB- xIn addition, the Commission subsequently denied the referenced Applications for Review. See Memorandum Opinion  {O - x<and Order, FCC 9657, 11 FCC Rcd 2948 (1996);  Memorandum Opinion and Order, FCC 96177 (released May 22, 1996).^ They  xargued that, in light of such uncertainty, they were justified in not making binding decisions  X - xZconcerning financing, equipment purchasing, and construction.R  {O8-ԍ Order I, 10 FCC Rcd at 4014.R The Bureau agreed, noting that  xjSection 95.833(a) was intended "to reduce the filing of speculative applications by entities that  x@have no real intention of implementing [IVDS] systems and to avoid the potential for  X-warehousing of IVDS spectrum." > {O!- xԍ Order I, 10 FCC Rcd at 4014 (quoting Report and Order, GEN Docket No. 912, 7 FCC Rcd 1630, 1640  yOO"-(1992)).  The Bureau granted the waiver requests, stating:  `  ` ` There has been no evidence presented of speculation or  ` dwarehousing, and we find it would be unreasonable to require the  ` petitioners to meet the current buildout requirements, given the  ` 'uncertainty that exists concerning their licenses. Moreover, we find"# ,-(-(ZZ)"  ` that waiving the oneyear construction deadline will not result in  ` sdelays in service to the public because these licensees will still be  ` required to satisfy the threeyear and fiveyear construction  ` 7benchmarks. 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  Xv-use of the spectrum.S v {O-ԍ Id. at 401415 (citations omitted).S  ` `    x<Johnson opposed the waiver requests by challenging the underlying authorizations, arguing that  X1- xthe lottery procedure was flawed and that granting the licenses was improper.< 1Z {O< -ԍ Id. at 4014.< The Bureau  xconsidered this argument inapposite, noting that Johnson had failed to address "the specific basis  X - xfor relief cited by [the licensees]."3  {O-ԍ Id.3 The Bureau added that Johnson, when specifically referring  x<to the waiver requests, "only state[d] broadly that such waivers would undermine the integrity of  X -the general rule."4 ~ {O-ԍ Id. 4 x3. In his Application for Review, Johnson states as his entire argument:  ` U ` ` Each argument made [in the previous Opposition] is incorporated  ` fin this Application for Review. The staff in error has found  ` "special circumstances" to modify absent formal rulemaking  ` conditions on eleven licenses [sic]. . . . The licensees as parties  ` seeking a waiver of a Commission regulation, must show that  ` application of the rule to its particular facts would not be in the  ` public interest and granting the waiver would not undermine the  ` policy served by the rule. . . . The applicants have failed to meet  ` this burden. The Commission, in the rulemaking proceeding,  `  already concluded that the public interest required a timely building  X-of the facilities.h yOT!-ԍ Johnson Application for Review at 12 (case citation omitted).h  Xe-   ` `  x4. Discussion. We find that, pursuant to 47 C.F.R.  1.3, the Bureau has articulated  xspecial circumstances and good cause to support the requested limited waivers of Section  xj95.833(a). As before, Johnson asserts that the waiver standard has not been met, but does not  xapply the standard for granting waivers to the facts of this case. Nor does Johnson support his  xview that granting the waivers was contrary to the policies that underlay the adoption of the" ,-(-(ZZ"  xsubject rule. We find that, in light of the uncertainty described, the newness of the service, and  xthe limited nature of the waiver, the Bureau's decision to waive compliance with the oneyear  xjconstruction requirement of Section 95.833(a) served the public interest and did not undermine  xthat rule's underlying policies. Requiring construction under the schedule prescribed by Section  x95.833(a) could have harmed the licensees unnecessarily, given these factors. By continuing to  xrequire adherence to the threeyear and fiveyear construction benchmarks, the Bureau ensured  xthat the longrange expectations of service to the public would be met and that this limited relief  xKto these licensees would not encourage speculative filings or precipitate unwarranted requests to  xdelay construction. Finally, to the extent Johnson suggests that the Bureau improperly waived  xthe build-out requirement without a rulemaking proceeding, we note that a waiver granted in  X - xlimited circumstances (as was done here) assumes the validity of the general ruleU  {O -ԍ WAIT Radio v. FCC, 418 F.2d at 1158. U and, as such, does not constitute a rule change requiring such a proceeding. x5. Accordingly, IT IS ORDERED that the Application for Review filed by  X -Edward M. Johnson IS DENIED.  x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary