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WTB Denies Extension of Communications Specialists of Wilmington

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Released: July 11, 2012
Federal Communications Commission
Washington, D.C. 20554
July 11, 2012
Communication Specialists of Wilmington, LLC
DA 12-1106
3330 Wrightsville Avenue
Wilmington, NC 28403
ATTN S. Frank McNeil
RE: Communication Specialists of Wilmington, LLC’s Request for Extension of Time to
Construct Call Sign WPZG977, File No. 0003694996.
Dear Mr. McNeil:
This letter addresses Communication Specialists of Wilmington, LLC’s (CSW) January 7, 2009
Request for Extension of Time to Construct with respect to its Part 22 VHF/UHF Paging license under
call sign WPZG977 (Extension Request).1 For reasons discussed below, we deny the Extension Request
pursuant to section 1.946(e) of the Commission’s rules.2 As a result, the license referenced above
automatically terminated as of the construction deadline, January 8, 2009, pursuant to sections 22.503(k)
and 1.955 of the Commission’s rules.3
Background. Pursuant to sections 22.503(k)(1) and (2) of the Commission’s rules, an Economic
Area (EA) or Major Economic Area (MEA) licensee authorized to provide public mobile paging and
radiotelephone service must construct or otherwise acquire and operate sufficient facilities to provide
coverage to one-third of the population of the paging geographic area no later than three years after the
initial grant of the EA or MEA license, and two-thirds of the population no later than five years after the
initial grant of the license.4 As an alternative to meeting the construction requirements, a paging
geographic area licensee may demonstrate, no later than five years after the initial grant of its license, that
it provides substantial service to the paging geographic area.5 The licensee must notify the Commission
at the end of the three-year period that it either has covered one-third of the population or that it plans to
provide substantial service at the five-year benchmark.6 Finally, section 22.503(k) provides that failure
by an EA or MEA licensee to meet the applicable construction or substantial service requirements will
result in automatic termination of its license.7

1 FCC File No. 0003694996 (filed Jan. 7, 2009) (Extension Request).
2 47 C.F.R. § 1.946(e).
3 Id. §§ 22.503(k), 1.955(a)(2).
4 Id. § 22.503(k)(1) and (2).
5 Id. § 22.503(k)(3).
6 Id. § 22.503(k)(1) (citing id. § 1.946). The licensee must also notify the Commission at the end of the five-year
period that it has either satisfied the construction requirement or that it has satisfied the substantial service
requirement. Id. § 22.503(k)(2) (citing id. § 1.946).
7 47 C.F.R. § 22.503(k); see id. §§ 1.955(a)(2) (providing that “[a]uthorizations automatically terminate (in whole or
in part as set forth in the service rules), without specific Commission action, if the licensee fails to meet applicable
construction or coverage requirements”); 1.946(c) (providing that “[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 (in whole or in part as set forth in the
service rules), without specific Commission action, on the date the construction or coverage period expires”).

CSW acquired its license in Auction No. 48 as the highest bidder for BEA018 – Greensboro-
Winston-Salem-High Point, NC-VA. The Commission granted CSW’s license on January 8, 2004, with a
three-year construction deadline of January 8, 2007, and a five-year construction deadline of January 8,
2009. CSW timely submitted its three-year construction notification on December 28, 2006, electing to
demonstrate substantial service at the five-year benchmark.8 One day before the five-year construction
deadline, CSW filed its Extension Request seeking a one-year extension, until January 1, 2010 to meet its
construction requirement.9 CSW amended its Extension Request on February 24, 2009 (1st Supplement to
Request), and June 1, 2009 (2nd Supplement to Request), well after the license’s five-year construction
Discussion. We find that grant of an extension of time to construct the subject call sign is not
warranted in this instance. Section 1.946(e) of the Commission’s rules provides that an extension of time
to meet construction requirements “may be granted if the licensee shows that failure to meet the
construction or coverage deadline is due to involuntary loss of site or other causes beyond its control.”10
Section 1.946(e) also specifies circumstances where an extension will not be granted, such as “a failure to
obtain financing, or to obtain an antenna site or to order equipment in a timely manner.”11 The extension
standard must be applied in consideration of 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.12
In its initial Extension Request, CSW simply states that the incumbent licensee in the area, USA
Mobility Wireless, Inc. (UMW) “holds eight (8) station locations under call sign KRH656, … precluding
Licensee [CSW] from establishing the required buildout” and that CSW “anticipates that on or before
January 1, 2010, the site-based carrier [UMW] will have deconstructed most, if not all, of its 158.7 MHz
facilities, allowing Licensee [CSW] to meet its build out requirements.”13 In its 1st Supplement, CSW
adds that UMW has three licenses, KRH656, KRH659, and WRV269 that authorize stations at 17 sites,
that “[t]hese stations effectively block Licensee’s construction in all portions of the license area where
service is commercially viable,” and that “[a]pproximately 95% of the population of BEA018 cannot be
served by Licensee due to the active site-based licenses of USA Mobility.”14 In its 2nd Supplement, filed
six months after the five-year construction deadline had passed, CSW explains that it consulted with
UMW to ask “about the possibility of a surrender of [UMW’s] licenses.” CSW then states that after
approaching the incumbent, UMW allowed the licenses for stations KRH656, KRH658 and KRH659 to
expire,15 and canceled its license for station WRV269.16 CSW claims that it now has an “opportunity to

8 FCC File No. 0002863203.
9 Extension Request at 1.
10 47 C.F.R. § 1.946(e)(1).
11 Id. § 1.946(e)(2).
12 See 47 U.S.C § 309(j)(4)(B).
13 Extension Request at 1.
14 1st Supplement to Request at 1. In particular, CSW states that UMW holds active licenses for 8 station locations
under the call sign KRH656; 4 station locations under the call sign KRH659 and 1 station location under the call
sign WRV269. Id.
15 2nd Supplement to Request at 2. A search of the Universal Licensing System (ULS) database indicates these call
signs expired on April 1, 2009 four months after CSW’s five-year construction deadline.
16 UMW cancelled its license for Station WRV269 on March 11, 2009, more than three months after CSW’s
construction deadline. FCC File No. 0003768749 (filed Mar. 11, 2009).

construct and operate in areas where the population density is sufficient to support Licensee’s [CSW’s]
We find that CSW has not demonstrated that its failure to meet its construction requirement for
Station WPZG977 was due to factors beyond its control. First, we note that the incumbent operations
were present in the area that makes up BEA018 when CWS purchased the license at auction. The public
notice announcing Auction No. 48 stated that “[p]otential bidders are reminded that there are a number of
incumbent licensees already licensed and operating on frequencies that will be subject to the upcoming
auction. Geographic area licensees in accordance with the Commission’s Rules must protect such
incumbents from harmful interference… These limitations may restrict the ability of such geographic
area licensees to use certain portions of the electromagnetic spectrum or provide service to certain areas in
their geographic license areas.”18 Further, regarding the Commission’s recommended due diligence, the
public notice stated that “[p]otential bidders are solely responsible for identifying associated risks, and
investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise
acquire, or make use of licenses available in Auction No. 48.”19 We encourage potential bidders to take
heed of these warnings. The level of incumbency in an area is not a factor, in and of itself, beyond the
control of a potential geographic area licensee in terms of complying with Commission rules and policies.
Further, the fact that UMW’s stations encumbered a significant part of CSW’s geographic area
does not adequately explain what steps CSW took during the five-year period to meet its construction
requirement. CSW’s explanation submitted six months after the deadline, in its 2nd Supplement, that it
had researched population density in small areas of the BEA and after checking equipment and
installation costs “concluded that it was not economically feasible to proceed with construction” does not
provide any evidence that CSW took actual steps to meet its obligation. Further, simply inquiring with
UMW about obtaining access to the spectrum and learning that UMW was “conducting a review of its
operations and may take action regarding certain” licenses is not a material demonstration that CSW had a
plan to meet its construction obligation by the deadline or that a short extension would allow CSW to
construct. Rather, these steps appear to be part of a speculative business decision to obtain encumbered
spectrum in hopes that it may become available at some point.
While CSW claims to have “made reasonable and diligent efforts prior to the deadline to design
and construct facilities,”20 CSW failed to provide any service by the five-year deadline. Further, CSW did
not provide material evidence that it was diligent during the initial five years of the license term by, for
example, attempting to relocate, remove or obtain the incumbent facilities to meet its construction
obligation by the deadline. CSW’s primary rationale for not moving forward on providing service is that
it was not economically feasible, a reason expressly rejected by Commission rule as a basis for obtaining
an extension. We therefore find that CSW has made certain business decisions, first to obtain the license
and then to wait to see if the incumbent vacated the spectrum to allow construction. The Commission has
consistently found that licensee business decisions are not circumstances beyond the licensee’s control
and are not the basis for regulatory relief.21 We conclude that CSW’s failure to timely meet its

17 2nd Supplement to Request at 2.
18 Lower and Upper Paging Bands Auction Scheduled for May 13, 2003, Public Notice, 17 FCC Rcd 27809 (WTB
19 Id.
20 2nd Supplement to Request at 2.
21 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

construction requirement is not due to involuntary loss of a site or the result of circumstances beyond its
Because we deny CSW’s Extension Request, the license for Station WPZG977 automatically
terminated, pursuant to sections 22.503(k) and 1.955 of the Commission’s rules,22 as of its construction
deadline, January 8, 2009.
Accordingly, IT IS ORDERED that, pursuant to Section 4(i) and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r); and Section 1.946(e) of the Commission’s Rules,
47 C.F.R. § 1.946(e), the Request for Extension of Time to Construct filed by Communications
Specialists of Wilmington, LLC, on January 7, 2009 IS DENIED and File No. 0003694996 IS
DISMISSED. This action is taken pursuant to delegated authority under sections 0.131 and 0.331 of the
Commission's rules, 47 C.F.R. §§ 0.131, 0.331.
Thomas Derenge
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau

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).
22 47 C.F.R. §§ 22.503(k), 1.955.

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