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WTB Denies Environmentel's 220 MHz Extension Request

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Released: March 20, 2014

Federal Communications Commission

DA 14-380

Before the

Federal Communications Commission

Washington, D.C. 20554

In the matter of
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ENVIRONMENTEL LLC
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See Attachment A for Calls Signs and
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Associated FCC File Nos.
Applications for Extension of the Five Year
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Construction Deadlines
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Order

Adopted: March 20, 2014

Released: March 20, 2014

By the Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1.
In this order, we address a request by Environmentel LLC (“Environmentel") to extend
the five-year construction deadlines for certain of its 220 MHz licenses.1 Specifically, Environmentel
seeks more than forty-five additional months to meet its construction obligations in order to consolidate its
220 MHz license construction deadline with the construction deadline of other license holdings.2 For the
reasons outlined below, we deny Environmentel’s request for extension and notify Environmentel that its
authorization for the subject licenses terminated automatically as of March 19, 2013.

II.

BACKGROUND

2. The licenses at issue were granted in 2007 as part of Auction 72.3 Pursuant to Section 90.767
of the Commission’s rules, an Economic Area (“EA”) or Regional Economic Area Grouping (“REAG”)
220 MHz licensee must construct a sufficient number of base stations for land mobile and/or paging
operations to “provide coverage to at least one-third of the population of its EA or REAG within five years

1 See Environmentel LLC, Request for Extension of 5-Year Construction Deadline (“Extension Request”), filed
March 19, 2013. See Attachment A for associated FCC file numbers. The licenses were granted on March 19,
2008, and the construction deadlines were March 19, 2013.
2 Extension Request at 3.
3 See Auction of Phase II 220 MHz Service Spectrum Licenses Closes, Public Notice, 22 FCC Rcd 11573 (2007).
The Licenses were acquired in the name of AMTS Consortium, which changed its name to Environmentel. See,
e.g.
, ULS, Environmentel LLC, Administrative Update, File No. 0003649470 (2008).

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DA 14-380

of the issuance of its initial license and at least two-thirds of the population of its EA or REAG within ten
years of the issuance of its initial license.”4 Alternately, licensees may provide substantial service to their
licensed area at the appropriate five-year and ten-year benchmarks.5 Further, pursuant to Section 1.946(c),
“[i]f a licensee fails to commence service or operations by the expiration of its construction period or to
meet its coverage or substantial service obligations by the expiration of its coverage period, its
authorization terminates automatically, without specific Commission action, on the date the construction or
coverage period expires.”6
3. On March 19, 2013, Environmentel filed requests for extension of the five-year construction
deadline set forth in Section 90.767(a) of the Commission’s rules7 for its licenses (“Extension Request”).8
Environmentel seeks an extension of the licenses’ five-year construction deadline until December 29,
2016,9 which is the construction deadline for the Automated Maritime Telecommunications System
(“AMTS”) licenses Environmentel and Intelligent Transportation & Monitoring Wireless LLC (“ITL”)
won in Auction 61.10 Environmentel argues that it requires the extension of its five-year deadline so that it
can implement a joint business plan (along with Telesaurus VPC, LLC (“Telesaurus”), Verde Systems,
LLC (“Verde”), ITL, V2G LLC (“V2G”), and Skybridge Spectrum Foundation (“Skybridge”))11 that
represents the highest and best use of the spectrum.12 Environmentel states that this joint plan has taken
years to develop and will require until the date requested in the Extension Request for commencement of
on-air systems.13 Environmentel also argues that the equipment needed to implement this plan only
recently has become available.14 In addition, Environmentel asks that special consideration be given to the
fact that it plans to assign a significant portion of its spectrum to Skybridge, “a non-profit, public benefit
foundation,” arguing that the transfer would be in the public interest.15

III.

DISCUSSION

4.
Under Section 1.946(e) of the Commission’s rules, an extension of time to complete
construction “may be granted if the licensee shows that the failure to meet the construction or coverage
deadline is due to involuntary loss of site or other causes beyond its control.”16 Section 1.946 also lists

4 47 C.F.R. § 90.767(a). For consistency, we refer to this as the “construction requirement” or “construction
deadline.”
5 Id.
6 47 C.F.R. § 1.946(c).
7 47 C.F.R. § 90.767(a).
8 See Extension Request.
9 Id. at 1.
10 See Auction of Automated Maritime Telecommunications System Licenses Closes, Public Notice, 20 FCC Rcd
13747 (2005).
11 We note for the record that Warren C. Havens (“Warren Havens”) is the president of Environmentel and is a
signatory to the Extension Request. Warren Havens also is president of Environmentel’s affiliated entities
Telesaurus, Verde, ITL, V2G, and Skybridge. We refer to these affiliated entities jointly as the “Havens Affiliates.”
12 This plan requires the combined use of the Havens Affiliates’ AMTS licenses, M-LMS licenses, and certain low-
band VHF licenses obtained in Auction No. 87 by ITL and V2G. See Extension Request at 2.
13 See Extension Request at 5.
14 See id.
15 Environmentel states that it has legally committed to assigning 80% of the spectrum in the Licenses to Skybridge,
and that this assignment is subject to grant of the Extension Request, “without which the Licenses will terminate and
the assignment will not be possible.” Extension Request at 2.
16 See 47 C.F.R. § 1.946(e).
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specific circumstances where extension requests will not be granted, including delays caused by a failure
to obtain financing, because the license undergoes a transfer of control, or because the licensee fails to
order equipment in a timely manner.17 The applicable extension standard must be considered in
conjunction with Section 309(j) of the Communications Act, as amended, which states that the
Commission shall include performance requirements to ensure prompt delivery of services, to prevent
stockpiling and warehousing of spectrum by licensees, and to promote investment and deployment of new
technologies and services.18

A.

Extension of All Construction Deadlines

5. As discussed below, after careful review of the record and considering all of the relevant
circumstances, we deny Environmentel’s Extension Request. Specifically, we find that Environmentel has
not demonstrated that an extension of time to construct is warranted or in the public interest. Rather, we
find that Environmentel’s failure to meet its construction obligations is due to voluntarily decisions to
pursue a business plan based upon unsupported technology instead of obtaining equipment and meeting its
obligations as intended under the Commission’s rules. We find that the arguments raised by
Environmentel do not justify an extension of the construction deadline for its licenses, and we believe that
granting the Extension Request would undermine the fundamental goals of the Commission’s performance
requirements, specifically the promotion and rapid deployment of services to the public and the prevention
of spectrum warehousing.19
6. As an initial matter, we find that Environmentel has failed to meet the requirements of Section
1.946(e), which requires licensees to show that the “failure to meet the construction or coverage deadline is
due to involuntary loss of site or other causes beyond the licensee’s control.”20 In fact, Environmentel fails
to even address the extension standard specified in the Commission’s rules and instead creates its own
criteria by which it believes its licenses should be granted relief of their regulatory obligations.21
Additionally, Environmentel’s argument that it could not procure its desired equipment is the epitome of
the excluded circumstances in Section 1.946(e), namely because the licensee fails to order equipment in a
timely manner.22
7. In particular, Environmental contends that it merits a 45-month extension to implement an
“LTE-like technology (OFMD, cognitive radio based, multi-band, with multiple-channel aggregation,
smart antennas, etc.) in the lower narrow bands (in this joint plan, principally 217-222 MHz)” in “support
of [F]ederal and other government goals of smart transport, smart energy, and environmental-protection
systems, or any of these” with its 220 MHz licenses. Regardless of whether Environmentel’s proposal is
technologically or economically viable, Environmentel has made a business decision to not construct its
licenses with available equipment. Instead, Environmentel chose to seek a long-term extension to pursue a
business plan that is unsupported in the equipment market for the 220 MHz service, which is made up of
narrowband 5 kHz channels.

17 See 47 C.F.R. § 1.946(e)(2)-(3).
18 See 47 U.S.C § 309(j)(4)(B).
19 See 47 U.S.C § 309(j)(4)(B).
20 See 47 C.F.R. § 1.946(e).
21 Environmentel states that “the extension criteria is satisfied since grant will allow the Licenses to be place into
service on a timely basis for the highest and best use, since due diligence has been extensively performed, and due to
the commitments of the licensee, accepted by [Skybridge], to assign 80% of the spectrum to a [sic] [Skybridge] for
nonprofit support of governments’ critical goals and programs. . . .” Extension Request at 8.
22 See 47 C.F.R. § 1.946(e)(2).
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8. Environmentel argues that “there has not been to this day in 220-222 MHz viable mobile two-
way radio systems with acceptable quality voice technology and equipment,” while also acknowledging
that “it is true that in more recent years some equipment companies have provided data radios in the
subject 220-222 MHz range, some of which use 5 kHz wide channels.” Environmentel argues, however,
that this equipment is not “desirable.”23 This demonstrates Environmentel’s knowledge that equipment
was available to begin providing service under its licenses, but that it chose not to while it waited for
equipment it deemed more “desirable.” We find that equipment was available for use in the 220 MHz
band prior to the construction deadlines.
9. Environmentel also voluntarily decided on a business plan that requires coordination with
several other entities (also run by Warren Havens), utilizing various types of licenses with different
regulatory requirements, in a wide range of spectrum bands with differing construction deadlines. Such a
business plan can greatly increase the complexity of equipment and present engineering challenges that
can hinder the development and affordability of viable equipment. The Commission consistently has
found that voluntary business decisions are not circumstances beyond the licensee’s control within the
meaning of Section 1.946 and, as such, do not constitute a valid basis for regulatory relief.24 In addition,
prior to the 220 MHz auctions, the Commission stated that:
[t]he Commission makes no warranties about the use of this spectrum for particular
services. Applicants should be aware that a Commission auction represents an opportunity
to become a Commission licensee in this service, subject to certain conditions and
regulations. A Commission auction does not constitute an endorsement by the Commission
of any particular services, technologies, or products, nor does a Commission license
constitute a guarantee of business success. Applicants should perform their individual due
diligence before proceeding as they would with any new business venture.25
10. Indeed, participants in Auction 72 received clear notice that they would be expected to meet
the construction requirements set forth in the Commission’s rules, regardless of the business plans or
strategies they ultimately chose to pursue. Rather than taking advantage of the equipment options in the
220 MHz band to provide actual service to the public, Environmentel made a voluntary business decision
to pursue alternate technologies and rely on an extension of its construction deadlines. While
Environmentel may desire to provide a specific service across multiple bands using technology that is not
supported in the bands, the unavailability of the specific type of equipment required to support its chosen

23 See Extension Request at 6.
24 See, e.g., Redwood Wireless Minnesota, LLC, Order, 17 FCC Rcd 22416 (WTB-CWD 2002) (construction delays
resulting from business disputes were exercise of business judgment and were not outside Petitioner’s control);
Eldorado Communications LLC, Order, 17 FCC Rcd 24613 (WTB-CWD 2002) (licensee’s determination to
initially deploy TDMA system and subsequently to adopt GSM with months remaining before construction deadline
was business decision within its control); Bristol MAS Partners, Order, 14 FCC Rcd 5007 (WTB-PSPWD 1999)
(equipment installation or delivery not delayed for some unique reason and licensee failing to obtain equipment was
business decision); AAT Electronics Corporation, 93 FCC 2d 1034 (1983) (decision not to market service
aggressively because of equipment uncertainties is within licensee’s control); Business Radio Communications
Systems, Inc., 102 FCC 2d 714 (1985) (construction delay caused by zoning challenge not a circumstance beyond
licensee's control); Texas Two-Way, Inc., 98 FCC 2d 1300 (1984), aff'd sub nom., Texas Two-Way, Inc. v. FCC, 762
F.2d 138 (D.C. Cir. 1985) (licensee is responsible for delay resulting from interference caused by construction
adjacent to construction site because site selection was an independent business decision); Letter dated May 6, 2011
from Thomas Derenge, Deputy Chief, Mobility Division, Wireless Telecommunications Bureau, to Dean S. Kozel,
Longhorn Communications Inc., 26 FCC Rcd 6716 (WTB-MD 2011); Letter dated June 26, 2009 from Roger S.
Noel, Chief, Mobility Division, Wireless Telecommunications Bureau to David G. Boyle, 24 FCC Rcd 8600 (WTB-
MD 2009).
25 See Amendment of Part 90 of the Commission’s Rules to Provide for the Use of the 220-222 MHz Band by the
Private Land Mobile Radio Service, Third Report and Order, 12 FCC Rcd 10943 ¶ 19 (1997) (“Third Report and
Order”
).
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business model does not constitute valid grounds for an extension under the Commission’s rules.
Licensees are free to investigate, invest in, and pursue a wide range of technologies and service options;
regulatory compliance, however, is ultimately demonstrated by material accomplishments in the use of the
spectrum resource to provide service.26 Otherwise, licensees wishing to warehouse spectrum and
undermine the purpose of the Commission’s rules simply could keep changing their business plan to an
unsupported model and attempt to argue that the situation is beyond their control.
11. Warren Havens, the president of Environmentel, has been a 220 MHz license holder since
1999 and had made numerous filings before the Commission about the best use and technology to deploy
for 220 MHz licenses. In 2004, Warren Havens sought an extension of his construction deadline because
narrowband voice equipment was not readily available for 220 MHz licenses, so the Wireless
Telecommunications Bureau (“Bureau”) released a Memorandum Opinion and Order27 extending the five-
year construction deadlines by three years.28 In 2007 and 2009, Warren Havens again sought extended
implementation deadlines for 220 MHz licenses held by entities under his control to implement Intelligent
Transportation Services.29 Now, Warren Havens again seeks an extended construction deadline of more
than 45 months to implement the latest iteration of his business plan using 220 MHz licenses. Throughout
this period, other 220 MHz licensees have been able to identify business plans supported by available
equipment or work with manufacturers to develop equipment in order to meet their construction
obligations, whereas organizations controlled by Warren Havens merely have updated their business plans
to include new concepts and ideas and file for regulatory relief based on arguments that there is no
equipment to support these ideas.
12. As a beneficiary of the 220 MHz Extension Order, and in fact the impetus of it, Warren
Havens should be well aware of the availability of equipment, but, instead of conforming his business plan
to achieve service, he has amended it to include new ideas that are not supported by equipment

26 See 47 C.F.R. § 90.767(a).
27 See Warren C. Havens, Bizcom USA, and Cornerstone SMR, Memorandum Opinion and Order, 19 FCC Rcd
12994 ¶ 19 (2004) (“220 MHz Extension Order”). The Commission issued the 220 MHz Extension Order in
response to Extension Requests filed by Warren Havens for his 220 MHz licenses. See Warren Havens, Petition to
Waive or Extend the Five-Year Construction Requirement: Partial Waiver of Section 90.767, with requests to apply
to other Regional and EA Licenses (Jan. 12, 2004). Warren Havens argued, in part, that extension or waiver of the
construction requirement was justified due to a lack of appropriate equipment available for use in the 220 MHz
band. The Bureau found that the public interest would be served by granting 220 MHz licensees, including Warren
Havens, this extension and that an additional three years would be sufficient time for the licensees to construct their
systems using available or soon to be released equipment. Id. at ¶ 20.
28 In 2004, when the Bureau granted a three year extension, the 220 MHz Extension Order noted that there were
several factors that would allow 220 MHz licensees to effectively develop and use their licenses in the near term,
prior to the extended deadline. Specifically, the Bureau cited to comments in the record that indicated that: (1) new
digital equipment could be made available in the near term; (2) licensees were aggregating multiple 5 kHz channels
to utilize 12.5 kHz equipment that was already available in the band; and (3) that the flexibility provided in the 1997
restructuring of the 220 MHz service rules would allow licensees to take advantage of a wide variety of new uses of
the band, including fixed data applications. Id. at ¶¶ 16-18; see also Third Report and Order.
29 See Warren Havens and Telesaurus VPC LLC, Petition to Waive or Extend the Five-Year Construction
Requirement (filed November 4, 2007); Warren Havens and Telesaurus VPC, Supplement to Pending 220-222 MHz
Extension Requests (filed June 27, 2008); Warren C. Havens Regional and EA Licenses, Amendment of Pending
2007 Petition to Waive or Extend the Five-Year Construction Requirement and the Ten-Year Construction
Requirement (filed March 23, 2009); Warren C. Havens and Verde Systems LLC, Fee Waiver and Refund Request,
Amendment to Pending Extension Requests Due to Lack of FCC Decision On It, Request for One “Ten Year”
Construction Deadline of October 7, 2015, and Supportive Showing for Amended Extension Requests, Renewal
Expectancy Showing for Renewal Applications for all the Subject Licenses (filed October 7, 2009); Warren Havens,
Verde Systems LLC, and Skybridge Spectrum Foundation, Supplement to Extension and Renewal Applications
(filed September 23, 2010).
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manufacturers or other 220 MHz licensees. Accordingly, while several licensees have implemented
services with their 220 MHz licenses or transferred them to other licensees that have identified viable
business plans for the 220 MHz licenses, Environmentel has made a voluntary decision to pursue
unsupported service and technology concepts and seek extended implementation deadlines rather than
meet is regulatory obligations.
13. In addition, Environmentel argues that ten years is the proper construction deadline for its 220
MHz licenses because the Commission has given a ten-year construction deadline to other services such as
AMTS (which it claims is easier to construct than a 220 MHz license). Additionally, because
Environmentel plans to use its 220 MHz licenses along with the Havens Affiliates’ AMTS spectrum, it
contends the licenses require the same deadline.30 This argument is without merit. First, we note that this
argument regarding 220 MHz construction rules has been raised before by Warren Havens and has been
denied.31 The Commission deliberately has created separate rules for each of the services it oversees and
has determined the construction deadlines for each of these services purposefully. In the 220 MHz band,
the Commission determined that a five-year construction deadline was most appropriate.32 Environmentel
also states that our rules do not require licensees to “build a license and the spectrum involved only on a
market-by-market basis, and only using that particular spectrum.”33 This argument also is faulty. While
the Commission does not forbid licensees from using their various licenses and spectrum holdings in
concert with each other, by the plain reading of rules, each license has independent requirements and we
do require a separate construction showing for each license, even if held by the same entity.34 Here,
Environmentel has chosen a business plan based upon unsupported technology that prevents it from
building each license independently, which does not constitute a factor beyond its control.
14. Environmentel also argues that the Commission should grant its Extension Request because of
its proposed transfer of 80% of its spectrum to SkyBridge, a Warren Havens-controlled non-profit
foundation that supports “advance wireless for smart transportation, smart energy and environmental-
protection systems.”35 This transfer, however, simply is another business decision that Environmentel has
made, and Environmentel does not cite any precedent by which we have accepted a licensee’s contribution
of spectrum to a non-profit entity as a way to meet our Section 1.946 standard.
15. Environmentel additionally argues that the Commission should grant its Extension Request
because we previously granted an extension in 2009 to another 220 MHz licensee, PTC-220, LLC (“PTC-
220”).36 Environmentel argues that its Extension Request is “more compelling in the public interest than
the FCC grant of PTC 220 LLC extension request.”37 We disagree. The circumstances cited by

30 Extension Request at 5.
31 Warren Havens raises this argument for 220 MHz licenses in his 2004 extension request, which was denied and
again in his 2007 extension requests. See, e.g., extension requests attached to ULS File Nos. 0001664792 and
0003222964. See also, 220 MHz Extension Order at ¶ 20, 19 FCC Rcd 13002.
32 See Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220-222 MHz Band by the
Private Land Mobile Radio Services, Report and Order, 6 FCC Rcd 2356, 2365 ¶¶ 65-69 (1991); 220 MHz
Extension Order
.
33 Extension Request at 3.
34 See 47 C.F.R. § 90.767(a). See also FCI 900, Inc. Expedited Request for 3-Year Extension of 900 MHz Band
Construction Requirements, Memorandum Opinion and Order, 16 FCC Rcd 11072, 11082 ¶ 18 (2001). See
generally
FCI 900, Inc. Expedited Request for 3-Year Extension of 900 MHz Band Construction Requirements,
Order on Reconsideration, 17 FCC Rcd 16092 (2002).
35 Extension Request at 2-3.
36 Extension Request at 6-7. At the time, PTC-220’s members included two of the nation’s Class I freight railroads.
Today, PTC-220’s members include all seven Class I freight railroads.
37 Id. at 6.
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Environmentel are unlike those that warranted the relief granted to PTC-220. In the PTC-220 Order, the
Bureau found that PTC-220’s request was uniquely founded on its railroad members’ legal obligation to
deploy life-saving interoperable, positive train control systems as directed by Congress in the Rail Safety
Improvement Act of 2008 as part of a nationwide, long-term strategy for improving railroad safety.38
Citing the unique Congressional mandate and noting that the railroads would file their PTC
implementation plans for approval by the Federal Railroad Administration in 2010, after the applicable
construction deadline, the Bureau found that an extension of time to enable implementation of PTC
systems would serve the public interest, particularly the Commission's statutory mandate of “promoting
safety of life and property through the use of wire and radio communications.”39 The Bureau also required
PTC-220 to file regular progress reports to ensure the spectrum would be used intensively for PTC
implementation.40
16. Finally, Environmentel argues that the Commission systematically has treated Warren Havens
and the Havens Affiliates unfairly.41 Warren Havens has made this argument repeatedly in his various
filings, and we consistently have rejected it.42 Despite Environmentel’s arguments to the contrary, our
findings here are consistent with our treatment of other 220 MHz licensees that sought long-term relief
from their construction deadlines. In these cases, we denied licensees’ requests for extensions based
largely on the fact that viable equipment was available and that other licensees had effectively used that
equipment to meet their construction requirements and begin providing service within their license areas.43

38 See In the Matter of Request of PTC-220, LLC for Waivers of Certain 220 MHz Rules, Memorandum Opinion
and Order
, 24 FCC Rcd 8537, 8542 (2009) (“PTC-220 Order”). The Rail Safety Improvement Act of 2008 requires
certain freight, passenger, and commuter railroads to install and operate PTC systems by December 31, 2015. See
Rail Safety Improvement Act of 2008, Pub. L. No. 110-432, § 104, 122 Stat. 4848, 4857 (2008). PTC-220 was
formed to facilitate the development and deployment of interoperable PTC systems in the United States to benefit
both freight and commuter rails. See, e.g., Wireless Telecommunications Bureau Seeks Comment on Request for
Waiver to Facilitate Deployment of Positive Train Control Systems, Public Notice, 28 FCC Rcd 2243, 2243 (2013).
To serve this purpose, PTC-220 acquired and now holds licenses in the 220 MHz band, including four nationwide
licenses. See id.
39 PTC-220 Order at 8543.
40 Id. at 8544-8546.
41 Extension Request at 7-8. Environmentel states that “. . . [Environmentel] submits that, but for FCC prejudicial
action, contrary to FCC and other law and the public interest, with regard to [Environmentel] and the [Havens
Affiliates], that it could have by this date commenced operation on the subject Licenses, and this is further good
cause for grant of this Request.” Id. at 7. Environmentel cites as examples: “the ten year M-LMS rule making that
continues to this day which effectively quashes development and use of the M-LMS in the markets (cannot proceed
without finalization of core rules); FCC unequal and unfair treatment of the [Havens Affiliates] including
[Environmentel] that applied for and obtained some AMTS licenses in comparison to other AMTS licensees
(applying to the [Havens Affiliates] rule 80.475(a) (1999) strictly, or overly harshly, but not applying it at all to the
competing AMTS applicants and licensees); and concocting a rule that does not exist to allow a competitor to
outbid, with false bidding credits, [Environmentel] and a co-controlled LLC in Auction 61 (ultra vires rule change of
rule 1.2105) (this is on appeal); and concocting a rule that does not exist to deny renewal of Skybridge’s 220 MHz
licenses donated to it as charitable grants (this is on appeal).” Id. at 7-8.
42 See, e.g., CGG Veritas Land, Inc., Memorandum Opinion and Order, 26 FCC Rcd 2493, 2494 ¶ 4 (2011);
Amendment of the Commission’s Rules Concerning Maritime Communications, Fourth Memorandum Opinion and
Order
, 25 FCC Rcd. 5008, 5011 ¶6 (2010); Mobex Network Services, LLC, Memorandum Opinion and Order, 25
FCC Rcd 3390, 3395-96 ¶ 11 (2010); Warren Havens, Jimmy Stobaugh, Intelligent Transportation & Monitoring
Wireless LLC, Skybridge Spectrum Foundation, & AMTS Consortium LLC, Memorandum Opinion and Order, 24
FCC Rcd 12308, 12311-13 ¶¶ 6-9 (2009).
43 See, e.g., Letter dated June 26, 2009, from Roger S. Noel, Chief, Mobility Division, Wireless
Telecommunications Bureau, to Nancy J. Douglas, Douglas SMR Works, Inc., 24 FCC Rcd 8596 (WTB-MD 2009);
Letter dated June 26, 2009, from Roger S. Noel, Chief, Mobility Division, Wireless Telecommunications Bureau, to
Robert LaRue, Know LaRue Separate Property Trust, 24 FCC Rcd 8621 (WTB-MD 2009); Letter dated June 26,
(continued....)
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We also note that where a Havens’ Affiliate has demonstrated that an extension is warranted, we have
acted favorably on those requests.44
17. Warren Havens and the Havens Affiliates have held a significant number of 220 MHz licenses
since 1999 without providing any service; Environmentel now seeks an additional forty-five months to
meet its regulatory obligation due to a lack of equipment for a business plan that appears to have
continually evolved since 1999 to include concepts that are unsupported in the equipment market. The
Commission’s rules are designed to recover and reassign unused or underutilized spectrum to prevent
spectrum warehousing, except in those limited instances where it is demonstrated that more time is
warranted.45 In this case, the Commission requires that 220 MHz licenses be operating within five years of
license grant, not the ten years Environmentel contends should apply. We find that an extension here
would undermine the purpose of the Commission’s rules and would not be in the public interest. Given
their history, Warren Havens and Environmentel fully knew the regulatory requirements (as well as any
technological challenges or equipment challenges that 5 kHz channels may present) of the 220 MHz
licenses when they chose to obtain them in Auction 72. Nevertheless, Environmentel now seeks a long-
term extension for its 220 MHz licenses while also failing to present any factors that would warrant an
extension under section 1.946 of the Commission’s rules.
18. The Bureau is charged with exercising its judgment to determine if it is in the public interest to
continue to allow licensees to keep their licenses, consistent with the Commission’s rules, policies and
goals for the use of this public resource. In our judgment, more time is not warranted by the demonstration
provided; Environmentel made a business decision to obtain its licenses and had adequate time to provide
service, but it chose instead not to build and seek more time. If granted, the extensions would result in a
significant portion of the 220 MHz band remaining fallow across the country for at least three years
entirely due to Environmentel’s voluntary decision to pursue alternate technologies instead of deploying
existing equipment within its license areas.
19. Accordingly, we find that: (1) Environmentel has not provided actual service in their license
areas; (2) this failure was not caused by circumstances beyond its control; (3) the claimed due diligence,
conceptual plans, or other factors described in Environmentel’s filings do not support an extension of the
construction deadline; (4) Environmentel has presented no compelling precedent or evidence to support its
request for special considerations based on its prospective assignment of spectrum to Skybridge; and (5)
allowing Environmentel to continue to hold these Licenses without constructing facilities or providing any
actual service would undermine the purpose of the Commission’s rules and Section 309(j) of the
Communications Act.46

B.

Extension of the E Block Construction Deadlines

20. In the alternative to granting extensions for all of Environmentel’s Licenses listed in
Attachment A, Environmentel requests that the Commission grant extensions of the five-year construction

(...continued from previous page)
2009, from Roger S. Noel, Chief, Mobility Division, Wireless Telecommunications Bureau, to Kansas City Wireless
Partners, LLP, 24 FCC Rcd 8625 (WTB-MD 2009); Letter dated June 26, 2009, from Roger S. Noel, Chief,
Mobility Division, Wireless Telecommunications Bureau, to David G. Boyle, 24 FCC Rcd 8600 (WTB-MD 2009).
44 See e.g., 220 MHz Extension Order; Re: Multilateration Location and Monitoring Service Construction
Requirements, Order on Reconsideration and Memorandum Opinion and Order, 22 FCC Rcd. 1925 ( January 31,
2007); and Extension Letter grant attached to FCC File No. 0003430268 (March 15, 2012).
45 See 47 U.S.C § 309(j)(4)(B).
46 See Letter dated May 6, 2011, from Thomas Derenge, Deputy Chief, Mobility Division, Wireless
Telecommunications Bureau, to Dean S. Kozel, Longhorn Communications Inc., 26 FCC Rcd 6716 (2011) (finding
that an Extension Request based on the licensee’s pursuit of alternate business plans could undercut the public
interest if it is not supported by evidence that such business plans could be accomplished in the near term).
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deadline for only the E Block licenses, as set out in Attachment B. Environmentel argues that, as these
specific E Block licenses “can use 12.5 kHz, 25 kHz, and somewhat wider channel technology,”
Environmentel should be able to use Digital Mobile Radio (“DMR”) and Terrestrial Trunked Radio
(“TETRA”) equipment, which “will probably soon be available in lower 200 MHz, according to reports
directly given to the undersigned by equipment companies at the 2013 IWCE event [March 11th - 15th,
2013] in Las Vegas.”47
21. As detailed in Section III(A) of this order, Environmentel made a voluntary business decision
to pursue technologies and business strategies that were unsupported by the existing equipment ecosystem
and we do not typically grant licensees relief from their construction requirements for the consequences of
voluntary business decisions. Moreover, Environmentel’s belief that DMR and TETRA equipment will
“probably” be available “soon” does not change the fact that it chose to rely on technology that is not yet
available. Therefore, for the reasons set forth above, the Extension Request, including the alternative
proposal to extend only the construction deadlines for the E Block licenses, is denied and the Licenses
automatically terminated on March 19, 2013.48

IV.

ORDERING CLAUSES

22. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act, as
amended, 47 U.S.C. § 154(i), and Sections 0.131, 0.331, 1.946(c) and (e), 1.955(a)(2), and 90.767 of the
Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331, 1.946(c), 1.946(e), 1.955(a)(2), and 90.767 that the
Extension Request for the licenses listed in Attachment A IS HEREBY DENIED. Accordingly, all
licenses listed in Attachment A TERMINATED AUTOMATICALLY ON MARCH 19, 2013.

FEDERAL COMMUNICATIONS COMMISSION
Thomas P. Derenge
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau

47 Extension Request at 8. Environmentel states that it will supplement the Extension Request after it receives
written confirmations. Id. We note that no such filings have been made.
48 See 47 C.F.R. § 90.767(c).
9

Federal Communications Commission

DA 14-380

Attachment A

Call Sign

Block

Market

File Number

WQIM611
D
BEA002
0005698199
WQIM612
E
BEA002
0005698200
WQIM613
E
BEA005
0005698201
WQIM614
E
BEA006
0005698202
WQIM615
D
BEA009
0005698203
WQIM616
B
BEA011
0005698204
WQIM617
D
BEA013
0005698205
WQIM618
B
BEA017
0005698206
WQIM620
D
BEA019
0005698207
WQIM621
E
BEA019
0005698208
WQIM622
B
BEA021
0005698209
WQIM623
C
BEA021
0005698210
WQIM624
E
BEA022
0005698211
WQIM625
E
BEA024
0005698212
WQIM626
E
BEA025
0005698213
WQIM627
B
BEA030
0005698214
WQIM628
E
BEA041
0005698215
WQIM629
E
BEA043
0005698216
WQIM630
E
BEA046
0005698217
WQIM631
E
BEA050
0005698218
WQIM632
C
BEA051
0005698219
WQIM633
E
BEA051
0005698220
WQIM634
E
BEA052
0005698221
WQIM635
B
BEA055
0005698222
WQIM636
C
BEA055
0005698223
WQIM637
D
BEA055
0005698224
WQIM638
E
BEA060
0005698225
WQIM639
E
BEA068
0005698226
WQIM640
E
BEA069
0005698227
WQIM641
A
BEA073
0005698228
WQIM642
C
BEA073
0005698229
WQIM643
A
BEA074
0005698230
WQIM644
E
BEA074
0005698231
WQIM645
E
BEA075
0005698232
WQIM646
B
BEA083
0005698233
WQIM647
C
BEA083
0005698234
WQIM648
D
BEA083
0005698235
WQIM649
D
BEA084
0005698236
WQIM650
A
BEA085
0005698237
WQIM651
D
BEA086
0005698238
WQIM652
C
BEA087
0005698239
WQIM653
A
BEA138
0005698240
WQIM654
C
BEA164
0005698241
10

Federal Communications Commission

DA 14-380

Attachment B

Call Sign

Block

Market

File Number

WQIM612
E
BEA002
0005698200
WQIM613
E
BEA005
0005698201
WQIM614
E
BEA006
0005698202
WQIM621
E
BEA019
0005698208
WQIM624
E
BEA022
0005698211
WQIM625
E
BEA024
0005698212
WQIM626
E
BEA025
0005698213
WQIM628
E
BEA041
0005698215
WQIM629
E
BEA043
0005698216
WQIM630
E
BEA046
0005698217
WQIM631
E
BEA050
0005698218
WQIM633
E
BEA051
0005698220
WQIM634
E
BEA052
0005698221
WQIM638
E
BEA060
0005698225
WQIM639
E
BEA068
0005698226
WQIM640
E
BEA069
0005698227
WQIM644
E
BEA074
0005698231
WQIM645
E
BEA075
0005698232
11

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