******************************************************** 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 ) ) Rush Network Corp. Request for ) Extension of Time to Construct a) 220-222 MHz Commercial Nationwide) Land Mobile Radio System ) ORDER Adopted: July 7, 1997Released: July 7, 1997 By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. Rush Network Corp. holds a 220 MHz Phase I commercial nationwide license. That license was granted on July 29, 1993, and Rush satisfied its two-year construction requirement. On May 9, 1997, Rush filed a request to extend its four-year construction deadline from July 29, 1997 to March 31, 1998. Rush requests a concomitant extension for its six-year and ten-year construction benchmarks. 2. Rush asserts that it has made good-faith efforts to fulfill its four-year construction requirement, but that it its efforts have been frustrated by circumstances beyond its control. Rush submits, for instance, that only two manufacturers are active in the 220 MHz band, and that neither manufacturer produces equipment to meet its needs. Rush further notes that in the Commission's recent Third Report and Order in the 220 MHz proceeding, the Commission allowed digital, fixed, data-only and paging operations on a primary basis in the 220 MHz band. Rush indicates that while it could nominally meet the deadline with existing equipment, the relaxation of permitted services has caused it to reevaluate its business plan. Rush asserts that it would be more productive and less wasteful to invest the money that would be required to complete an inferior infrastructure by the current four-year deadline into development of new services that the 220 MHz service rules now allow. 3. Rush states that its original financial showing, as required by Section 90.713 of the Commission's Rules, 47 C.F.R.  90.713, remains accurate with respect to its revised business plans. Rush states its belief that the cost of basic infrastructure will be nearly identical to its original estimates. Rush also submits that it will provide the Commission with a revised implementation schedule as soon as possible after being notified from relevant vendors that equipment is available. 4. Section 90.725(a) of the Commission's Rules provides that Phase I nationwide commercial 220 MHz licensees must, within four years of initial license grant, operate base stations in at least 40 percent of the geographic areas designated in the application, including base stations in at least 28 urban areas. The six-year benchmark is 70 percent (including at least 28 urban areas), and the 10-year benchmark is 100 percent (including at least 28 urban areas). Rush's request effectively seeks a waiver of Section 90.725(a). Pursuant to Section 90.151 of the Commission's Rules, a party seeking a rule waiver must show (1) that unique circumstances are involved and (2) that there is no reasonable alternative solution within existing rules. 5. We conclude that Rush has satisfied these criteria with respect to the four-year construction deadline. We are persuaded that Rush has made significant, good-faith efforts to conform to the four-year requirement. Indeed, the fact that Rush fulfilled its two-year requirement (10 percent of licensed geographic area/seven urban areas) indicates to us that it is serious about developing a nationwide 220 MHz system. In addition, the changes in the permissible use of the 220 MHz band adopted in the Third Report and Order have come so recently that appropriate equipment to accommodate new uses is not yet fully developed. Under these circumstances, we do not believe a limited extension of the four-year deadline sought by Rush significantly alters the Commission's framework for buildout of nationwide 220 MHz service. While Rush indicates that it could technically satisfy the rule with existing equipment, we agree that it would be wasteful to require Rush to follow the letter of the rule and construct a system on a nationwide scale that is not consistent with its revised plan to capitalize on the greater flexibility in uses of the 220 MHz band that the Commission has recently allowed. Such a decision would needlessly require Rush to spend time and money constructing facilities it is unlikely to use, to the detriment of Rush's potential customers. 6. Accordingly, we grant Rush's request that the deadline for satisfying its four-year construction benchmark be extended until March 31, 1998. We do not agree, however, that Rush has effectively satisfied the Part 90 waiver requirement with respect to the six-year and ten-year requirements. We believe that it is premature to make a decision on those deadlines at this time. 7. Accordingly, IT IS ORDERED that the Request for Extension of Time to Construct a 220- 222 MHz Commercial Nationwide Land Mobile Radio System filed by Rush Network Corp. IS GRANTED to the extent indicated herein and IS OTHERWISE DENIED. 8. IT IS FURTHER ORDERED that the Request for Confidentiality filed by Rush Network Corp IS GRANTED. 9. This action is taken pursuant to authority delegated by Section 0.331 of the Commission's Rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau