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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 ) ) GEOTEK COMMUNICATIONS, INC. ) ) 900 MHz Major Trading Area-Based ) Specialized Mobile Radio Service Licenses ) ORDER Adopted: August 9, 1999 Released: August 9, 1999 By the Chief, Wireless Telecommunications Bureau: 1. We have before us a request filed by Geotek Communications, Inc., Debtor in Possession, its subsidiaries and affiliates (collectively, "Geotek"), together with Hughes Network Systems ("Hughes") and Wilmington Trust Company, as successor indenture trustee (the "Trustee" and, collectively with Hughes, the "Creditors"), to extend the time in which to file a showing of substantial service pursuant to the rules governing construction of Major Trading Area-based licenses in the 896-901/935-940 MHz band ("900 MHz MTA licenses"). For the reasons stated below, we grant an extension to Geotek and the Creditors to make the three year construction election after the Commission has acted upon a pending request by the Creditors for waiver of the 900 MHz MTA construction benchmarks. 2. Section 90.665 of the Commission rules requires a 900 MHz MTA licensee to construct and place into operation a sufficient number of base stations to provide coverage to at least one-third of the population of the MTA within three years of license grant, and to at least two-thirds of the MTA population within five years of license grant. Alternatively, an MTA licensee may demonstrate, through a showing to the Commission five years from license grant, that it is providing substantial service. Therefore, at three years from license grant, a 900 MHz MTA licensee must either show that the one-third coverage standard has been satisfied, or provide written notification that it has elected to show substantial service to the MTA five years from license grant. If the licensee elects the substantial service option, it was required to indicate, at the time of the election, how it expected to demonstrate substantial service at five years. In a separate order released today, however, we waived this requirement at the time of the election because it was an unnecessary burden imposed only on 900 MHz MTA licensees. 3. Geotek was granted 900 MHz MTA licenses by the Commission on August 12, 1996. On June 29, 1998, Geotek filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. As part of the bankruptcy proceeding, Geotek conducted an auction of its 900 MHz licenses, in which Nextel Communications, Inc. ("Nextel") was the highest bidder. Geotek then submitted applications for assignment of the licenses in a two-step transaction: first, from Geotek to the Creditors, and second, from the Creditors to FCI 900, Inc., a subsidiary of Nextel ("pending assignment applications"). 4. On June 18, 1999, Geotek, together with the Creditors, requested an extension of time to submit a filing indicating that it is electing to provide substantial service within five years of initial grant date. Although Geotek and its Creditors filed a motion for extension of time under section 1.46 of the Commission rules, they are essentially requesting a waiver of the requirement, in section 1.946(d) of the Commission's rules, that licensees must notify the Commission within 15 days of the expiration of the applicable construction period that it has either satisfied the one-third coverage requirement or elects the substantial service option. In addition, the Creditors, as the probable assignees of Geotek's 900 MHz MTA licenses, requested a waiver of section 90.665 of the Commission's rules so that the construction period will restart once the licenses are assigned to the Creditors. 5. In its Extension Request, Geotek and the Creditors argue that, because the assignment applications remain pending before the Commission, it is unclear if and when the licenses will be assigned and which entity will eventually hold the licenses and thus be in the best position to make the election and create a plan to provide substantial service within two years. Geotek and the Creditors also submit that this is not simply a case of a licensee with pending assignment applications requesting new construction terms, but instead one of a bankrupt licensee with little chance of holding the licenses in the long-term. Geotek and the Creditors thus ask for a 90-day extension from when the Commission acts on both assignment applications in order to give the assignees time to consummate the transactions and prepare and submit their plans for providing substantial service. 6. A request for waiver will be granted, if in view of the unique or unusual factual circumstances of the instant case, application of the rule would be inequitable, unduly burdensome or contrary to the public interest. We find that these circumstances are unique and that it would serve the public interest to waive application of section 1.946(d) of the Commission's rules to Geotek and its Creditors. Because Geotek is in bankruptcy and has filed assignment applications which are currently pending, it is unlikely that Geotek will ultimately be the licensee responsible for complying with the construction requirements. Thus, in the absence of a waiver, the election would be made by an entity that is not in the best position to make the election (i.e., Geotek). Furthermore, the Creditors have filed a request for a waiver of section 90.665 of the Commission's rules in order to restart the construction period following action on all of the pending assignment applications. In light of the fact that Geotek is in bankruptcy, the assignment applications remain pending, and the Commission has not acted on the Creditors' waiver request, we believe it would serve the public interest to grant Geotek and its Creditors an extension of the deadline for filing the election after the Commission has acted on the Creditors' request for a waiver of section 90.665 of the Commission's rules. In the Order resolving that request, we will specify the actual date for filing the election. 7. 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 sections 0.131, 0.331, and 1.925, 47 C.F.R.  0.131, 0.331, 1.925, the request for an extension of the deadline for making a substantial service election filed by Geotek Communications, Inc., Debtor in Possession, its subsidiaries and affiliates, Hughes Network Systems, and Wilmington Trust Company, IS GRANTED in part and DENIED in part, as explained herein. 8. IT IS FURTHER ORDERED that, pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and sections 0.131, 0.331, and 1.925, 47 C.F.R.  0.131, 0.331, 1.925, the deadline for making the substantial service election for the 900 MHz MTA licenses currently held by Geotek Communications, Inc., Debtor in Possession, its subsidiaries and affiliates, shall be extended until after the Commission acts on the pending waiver requests filed by Hughes Network Systems and Wilmington Trust Company. FEDERAL COMMUNICATIONS COMMISSION Thomas J. Sugrue Chief Wireless Telecommunications Bureau