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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 ) ) HOUSTON 936 SMR, INC. ) ) Request for Waiver of Construction Requirement ) For 900 MHz MTA License ) Call Sign KNNY252, Houston, Texas ) ORDER Adopted: August 31, 1999 Released: August 31, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. This Order addresses the request by Houston 936 SMR, Inc. ("Houston SMR") for waiver of the construction requirements for 900 MHz Metropolitan Trading Area ("MTA") licenses, pursuant to section 90.655(c) of the Commission's rules. Specifically, Houston SMR seeks to extend its three-year construction benchmark for one of its six 900 MHz MTA licenses from August 16, 1999 to July 16, 2001. For the reasons below, we deny the request. 2. Houston SMR was granted six 900 MHz MTA licenses by the Commission on August 16, 1996. 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. Therefore, Houston SMR's three-year construction benchmark was on August 16, 1999. Pursuant to section 1.946(d) of the Commission's rules, Houston SMR is required to notify the Commission that it has complied with the three-year construction requirement within 15 days of its three-year benchmark (i.e., August 31, 1999). 3. On July 15, 1999, Houston SMR submitted a waiver request for an extension of the three-year benchmark on one of its six 900 MHz MTA licenses. Specifically, Houston SMR asked for an additional 23 months to meet the one-third coverage requirement for its Houston, Texas MTA license. In support of its request, Houston SMR contends that delays occurred because there was a cloud on its license due to a problem with the initial installment payments on its 900 MHz licenses. Houston also maintains that an interference complaint filed by Nextel Communications, Inc. ("Nextel") regarding operations in the Houston market delayed implementation of construction plans because Houston SMR relocated its base station and eventually took the station off the air. Although the Commission found that Houston SMR was providing adequate interference protection to Nextel at its relocated site, Houston SMR states that it has remained off the air because it would not be able to meet the one- third coverage requirement at that site. 4. 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 do not find such unique or unusual circumstances in Houston SMR's case. Regarding the problems it experienced with the installment payments, Houston SMR fails to provide any evidence that these problems directly affected the construction of its licenses. In fact, Houston SMR was able to meet the construction requirements for its other five 900 MHz MTA licenses, and has not shown why these licenses would have been less affected by the installment payment problem. We also note that during the entire time in question, Houston SMR was authorized to operate all of its six 900MHz MTA licenses, pending resolution of the matter. Regarding Houston SMR's claim that Nextel's interference complaint caused it to delay meeting the one-third coverage requirement, Houston SMR fails to adequately explain the reasons for not operating at the relocated site following the Commission's finding that it was providing adequate interference protection to Nextel at that site. Houston SMR had the option of operating at that site in addition to other sites throughout the MTA to meet the specific coverage requirements. We also note that if it were the case that an incumbent's service area covers greater than two-thirds of the MTA's population, a 900 MHz MTA licensee has the option of demonstrating substantial service at the five-year construction benchmark, in lieu of the specific coverage requirements. Based on the lack of unique or unusual circumstances and the reasonable alternatives available to Houston SMR, we do not find application of the construction requirement to be inequitable, unduly burdensome, or contrary to the public interest. Therefore, we deny Houston SMR's request for an extension of the three-year construction benchmark. 5. 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 of the Commission's rules, 47 C.F.R.  0.131, 0.331, 1.925, the request for an extension of the three-year 900 MHz MTA construction benchmark filed by Houston 936 SMR, Inc., IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau