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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 ) ) BRISTOL MAS PARTNERS ) ) Request for Extension of Time in which) to Construct and Place into Operation) Multiple Address System Stations ) WPJF864 through WPJF870 ) ORDER Adopted: February 4, 1999 Released: February 4, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. Bristol MAS Partners (Bristol) has petitioned for reconsideration of a decision by the Licensing and Technical Analysis Branch (Branch) of the Public Safety and Private Wireless Division denying Bristol's request for an extension of time to construct and place into operation its Multiple Address System (MAS) Stations WPJF864 through WPJF870 in the Private Operational Fixed Microwave Services. As discussed below, we find that Bristol has failed to provide adequate justification for the requested extension of time. Thus, we deny Bristol's request for reconsideration, affirm the Branch's decision, and order that the subject authorizations be returned to the Commission as they have cancelled automatically under the Commission's Rules. II. BACKGROUND 2. The Commission granted Bristol the seven license authorizations at issue effective July 8, 1996. Thus, the original scheduled deadline for the stations to be fully constructed and operational was July 9, 1997. However, effective August 1, 1996, the Commission extended the construction periods for Part 101 services to eighteen months. As a result, the construction period for these authorizations was extended until January 8, 1998. On December 23, 1997, Bristol requested an extension of time to complete its construction of the subject facilities until July 8, 1998. 3. In its Extension Request, Bristol stated that "organizational problems in the partnership" delayed it from proceeding with its business plans after grant of the authorizations. Bristol further stated that it was negotiating with a major paging communications company to be responsible for site construction. This paging company, however, had not started construction and told Bristol that the construction deadlines would have to be extended in order for it to proceed. The Extension Request urged the Commission to grant the extension so that it could complete these negotiations and avert its own financial devastation, explaining that an entity that had set up the partnership venture and helped it establish a business plan had reneged on its assurances that it would walk Bristol through the licensing and post-licensing processes. 4. The Branch denied the Extension Request by letter dated January 13, 1998. Noting that Bristol had made no showing regarding construction of the sites, contracting or purchase of equipment, or the existence of delays with third parties that was beyond its control, the Branch determined that it was unable to find sufficient justification warranting extension of the construction period. On January 23, 1998, Bristol petitioned for reconsideration of the Branch's decision. III. DISCUSSION 5. In its Reconsideration Request, Bristol contends that "organizational problems" are not the sole reason for its delay in meeting the construction deadline. Bristol states that it was organized as a partnership by a third party, Advanced Technologies Associates, Incorporated (ATAI), which filed the applications on behalf of Bristol. Further, it was Bristol's understanding that ATAI had advised it of everything that Bristol needed to know about becoming a Commission licensee and would continue to offer assistance after the grant of the licenses. The partners of Bristol claim, however, that they were not made aware of the construction deadline associated with grant of the subject licenses. They further contend that after they learned of the deadline and could no longer contact ATAI, Bristol sought to meet its construction requirements. Ultimately, Bristol reached an agreement with an unnamed paging company for the latter to "construct, market, and use" a total of ten of Bristol's licenses (seven of which are at issue here), as well as nine others that the Bristol partnership principals had obtained from another partnership, Riverside MAS Partners. Upon hearing that the construction deadline was approaching, the paging company advised Bristol to apply for an extension. Bristol claims that in the meantime all of the sites have been surveyed for available space on existing towers and the paging company has contracted with another company regarding the order of necessary equipment. 6. Section 101.63 of the Commission's Rules provides that each station authorized, under Part 101 of the Rules must be in operation within eighteen months from the initial date of grant. The Part 101 Rules further provide that failure to timely begin operation results in the authorization cancelling automatically and the licensee being required to return such authorization to the Commission. Section 101.63 also provides, however, that requests for extension of time to place a facility in operation may be granted upon a showing of good cause, setting forth, in detail, the applicant's reasons for failing to have the facility operating within the prescribed period. 7. Bristol substantially premises its argument for grant of the Reconsideration Request on the "financial obligation created, the progress of purchased materials, and the potential financial loss as well as additional potential obligational losses that are hand." While undoubtedly Bristol is in a position to suffer financially if its request is denied, with the potential exception of purchasing certain materials, we do not find these reasons to constitute a sufficient basis under the Commission's Rules for granting the request. Indeed, in its licensing of various wireless telecommunications services, the Commission has repeatedly ruled that business decisions made by licensees which ultimately prove misguided should not influence Commission determinations made in the course of managing the spectrum. The principals that invested in Bristol essentially admit that they do not understand the Commission's Rules nor understand fully how to operate as a Commission licensee, and therefore had relied upon a third party to provide such guidance. And while the decision to do so ultimately has proven a mistake, it is a result of a business decision of Bristol to deal with this investment company, and not because of exigencies beyond its control. 8. With regard to the procurement of equipment, we find that whether the paging company may have begun negotiations for, or even ordered, equipment does not change the outcome. Initially, we note that such a fact is quite distinct even from Bristol itself ordering equipment and beginning construction with the intent of finishing construction as quickly as possible in order to use its authorization. Even in that instance, a grant of an extension request is not automatic. The Commission has denied construction extension requests in a variety of contexts where licensees have been delayed by such factors as equipment delivery problems, interference from adjacent buildings, zoning difficulties, and the inability to obtain construction permits. In each instance, the licensee made a business decision and thus the delays could not be attributed to causes beyond its control. Likewise, in the instant case, equipment delivery or installation has not been delayed for some unique reason, nor has the licensee itself, Bristol, even begun obtaining equipment. Bristol apparently does not intend to utilize the licenses itself, but rather to lease or sell them to a paging company in order to, in effect, "cut its losses." In fact, the paging company, a third party, seems to be ordering equipment so that it may use the sites and not for purposes of Bristol to receive or provide service. Thus, we are not persuaded that the efforts made towards the ordering of equipment by Bristol or the paging company is good cause warranting extension of the construction deadline for the subject MAS facilities. IV. CONCLUSION 9. By this Order, we affirm the Branch's denial of Bristol MAS Partners' request for extension of its deadline to construct and place into operation its MAS Stations WPJF864 through WPJF870. We conclude that Bristol MAS Partners has failed to demonstrate good cause for such an extension. Specifically, it has not begun construction and has not demonstrated that circumstances beyond its control are the reasons for its failure to timely construct. V. ORDERING CLAUSES 10. IT IS ORDERED THAT pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405 and Sections 1.106 and 101.63 of the Commission's Rules, 47 C.F.R.  1.106, 101.63, the petition for reconsideration filed by Bristol MAS Partners on January 23, 1998 IS DENIED. 11. IT IS FURTHER ORDERED THAT the authorizations for OFS stations WPJF864, WPJF865, WPJF866, WPJF867, WPJF868, WPJF869, and WPJF870, having cancelled automatically pursuant to Section 101.63(b) of the Commission's Rules, 47 C.F.R.  101.63(b), shall be returned to the Commission immediately. 12. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau j:\mas\bristol.1