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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 ) ) AGS TELECOM, INC. ) ) Request for Waiver of Section ) 95.819 of the Commission's Rules ) Concerning Transfer of Control of) Interactive Video and Data Service) License KIVD0004 ) ORDER Adopted: February 18, 1999 Released: February 23, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: INTRODUCTION 1. On April 13, 1998, AGS Telecom, Inc. (AGS), the holder of an Interactive Video and Data Service (IVDS) license in Los Angeles, call sign KIVD0004, filed an amended application for a pro forma transfer of control (Amended Application) relating to its IVDS license. As a part of its Amended Application, AGS seeks a waiver of Section 95.819 of the Commission's Rules in connection with this transfer. By this Order, we grant AGS' waiver request and permit the pro forma transfer of KIVD0004, as discussed herein. BACKGROUND 2. AGS' license was granted on March 28, 1994, as a result of the IVDS lottery conducted by the Federal Communications Commission (FCC) on September 15, 1993. According to the FCC's licensing records, AGS is currently controlled by Alberto Garza through an intermediary, Tottenham Corp., a British Virgin Islands corporation (Tottenham BVI). In the Original Application filed on June 20, 1997, Mr. Garza sought to substitute Tottenham BVI, with Tottenham Holdings, S.A., a Luxembourg company. Pursuant to its Amended Application filed on April 13, 1998, AGS now seeks to transfer control of AGS from Tottenham BVI to Tottenham Holdings, LLC, a Delaware corporation. Mr. Garza will remain in control of AGS through his 100% ownership of Tottenham Holding, LLC. In connection with the Amended Application, AGS requests a waiver of Section 95.819(b) of the Commission's Rules which forbids the transfer of IVDS licenses acquired by lottery until the five-year construction benchmark has been met. DISCUSSION 3. Pursuant to Section 1.3 of the Commission's Rules, the Commission may waive a provision of its rules "if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest." Section 95.819 of the Commission's Rules was intended to help ensure that IVDS systems are actually built, to eliminate the possibility of spectrum warehousing and to reduce the attractiveness of the IVDS licenses as vehicles for speculation. On March 13, 1997, the Wireless Telecommunications Bureau (Bureau) waived the three-year construction benchmarks for IVDS lottery winners because of pending petitions to change the IVDS service rules and in an effort to promote flexible use of the spectrum. Therefore, to the extent that Section 95.819 was intended to help ensure that IVDS systems are constructed, that purpose would not be hindered by allowing the pro forma transfer under the circumstances presented here given the waivers of the three-year construction benchmark and the pending rulemaking regarding the IVDS service rules. 4. With respect to Section 95.819's purpose of curbing spectrum speculation and warehousing, we believe that because the proposed transfer is pro forma, grant of the requested waiver would not be contrary to the general rule. In the subject transfer, Mr. Garza is seeking to substitute a new intermediary holding company, Tottenham Holdings, LLC, in place of the current intermediary, Tottenham BVI. We note that there will be no change in actual control of AGS as a result of the proposed transfer. Mr. Garza will retain the same relationship to the new intermediary as he did to the old, and will still be obligated to satisfy the five-year construction benchmark. Furthermore, we find that permitting the pro forma transfer in this instance will serve the public interest by allowing AGS to accomplish its IVDS build-out in a more efficient manner that we anticipate will, in time, promote IVDS build-out in AGS' IVDS service area. Finally, we note that the Bureau previously has permitted a similar pro forma transfer of control involving an IVDS lottery license. In this connection, we conclude that grant of the subject waiver is consistent with such action. CONCLUSION 5. We believe that the nature of the transfer of control proposed by AGS constitutes a special circumstance warranting a deviation from the general rule. We further believe that granting the waiver will not undermine the policies embodied in the general rule, and may assist AGS in its efforts to provide service to the public. We therefore find that grant of the requested waiver is in the public interest. ORDERING CLAUSE 6. ACCORDINGLY, IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 1.3 of the Commission's Rules, 47 C.F.R.  1.3, the amended request of AGS Telecom, Inc., for waiver of Section 95.819 of the Commission's Rules, 47 C.F.R.  95.819, for license KIVD0004, filed on April 13, 1998, IS GRANTED. 7. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 310(d) and Section 95.821 of the Commission's Rules, 47 C.F.R.  95.821, the pro forma transfer of control application filed by AGS Telecom, Inc. on April 13, 1998, IS GRANTED. 8. 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