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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 ) ) NEXTEL COMMUNICATIONS, INC. ) ) Request for Waiver of Section 90.629 ) of the Commission's Rules ) ) ORDER Adopted: December 29, 1999 Released: December 30, 1999 By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. This Order addresses a request by Nextel Communications, Inc. (Nextel) for waiver of section 90.629 of the Commission's rules to obtain additional time to construct extended implementation licenses in its wide-area Specialized Mobile Radio (SMR) network. For the reasons discussed below, we grant Nextel's request with regard to its authorized frequencies in the Business Pool and Industrial/Land Transportation Pool, and dismiss its request as moot with regard to its authorized frequencies in the lower 80 SMR Pool and General Category Pool. 2. Under section 90.629 of the Commission's rules, a wide-area licensee in the 800 MHz band could apply for extended implementation (EI) of its wide-area SMR authorization, whereby the licensee would have up to five years to construct all of the facilities within the wide-area "footprint" established by its licenses. Starting in 1991, Nextel began to acquire a number of such EI wide-area licenses. In 1995, the Commission accelerated the extended implementation of all incumbent wide-area licensees, including Nextel, in light of the new geographic-area based licensing scheme for the 800 MHz SMR service. The incumbent licensees were required to rejustify their extended implementation authorities and, if successful, were given either the remainder of their original five-year construction periods or two years from the action on their rejustification showings, whichever was shorter. Nextel successfully rejustified the extended implementation for its various wide-area systems. Therefore, for each individual authorization, Nextel was given until the end of the original extended implementation period or May 20, 1999, whichever was sooner. 3. On December 23, 1998, Nextel filed a request for a waiver of section 90.629 of the Commission's rules to obtain additional time to complete construction of its wide-area SMR network. Specifically, Nextel requests that the construction deadline for its authorized frequencies in the lower 80 SMR Pool and General Category Pool (collectively, lower 230 channels) be extended until 30 days following the grant of Economic Area (EA) licenses in the lower 230 channels pursuant to auction. Nextel also requests that the construction deadline for its authorized frequencies in the Business Pool and Industrial/Land Transportation Pool (collectively, B/ILT channels) be extended until the Commission completes a rulemaking concerning the future licensing of B/ILT channels. 4. Lower 230 Channels. Nextel argues that waiver is appropriate for its lower 230 channels because the Commission accelerated the extended implementation periods of the incumbents in order to aid in the transition to geographic-area licensing of SMR systems, and predicated that decision on the fact that incumbents could apply for an EA license. Nextel points out that while EA licenses have become available through auction for the upper 200 channels of the 800 MHz SMR band, the EA licenses in the lower 230 channels (which are used more extensively in wide-area systems) have not yet become available. Moreover, Nextel contends that the site-by-site construction requirements imposed on incumbent wide-area licensees create a regulatory burden on incumbent EI licensees as compared with cellular or Personal Communications Services (PCS) providers, because they force incumbents like Nextel to construct economically unviable sites in order to keep the authorizations for those sites. 5. Since Nextel filed its waiver request, the Commission has altered the construction requirements for incumbent wide-area licensees in the 800 MHz SMR service. This action was precipitated by a remand of the United States Court of Appeals in Fresno Mobile Radio, Inc., et al. v. Federal Communications Commission. In the ensuing remand order, the Commission gave incumbent licensees who were within their construction periods at the time of the Fresno decision - like Nextel - the choice between complying with the terms of their EI authorizations or applying alternative construction requirements similar to those imposed on Economic Area (EA) licensees in the 800 MHz SMR service. Under the more flexible EA requirements, an eligible incumbent EI licensee will now be able to leave certain sites and frequencies unconstructed for potential future use. Consequently, Nextel's concern about regulatory parity with cellular and PCS licensees is now moot and, therefore, we dismiss Nextel's request for additional time for construction of its lower 230 channels. 6. B/ILT Channels. The Fresno Remand Order pertained only to SMR frequencies and specifically excluded B/ILT frequencies converted to SMR use under inter-category sharing. Therefore, we will address Nextel's request for additional time to construct its B/ILT frequencies. In general, a request for waiver must show that: (1) the underlying purpose of the rule would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (2) in view of the unique or unusual circumstances of the instant case, application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. Nextel likens its situation to that of Southern Company, which was granted temporary relief of its construction deadlines for its B/ILT frequencies by the Wireless Telecommunications Bureau in December 1998. Nextel states that it, like Southern, has a wide-area system that provides "service over an unusually large area to a substantial number of public safety users that rely on the system." We agree that Nextel provides a similarly important service to the public safety community, and therefore, should be given additional time in order to avoid unnecessary disruption to these critical public safety operations. Because Nextel's circumstances are therefore similar to Southern's in this respect, we give Nextel the same relief granted Southern specifically, additional time to construct its B/ILT frequencies until the effective date of final rules regarding the licensing of the Industrial/Land Transportation frequencies in the context of the Commission's rulemaking proceeding to implement the Balanced Budget Act. 7. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r), and section 1.925 of the Commission's rules, 47 C.F.R.  1.925, Nextel Communications, Inc.'s Request for Waiver of Section 90.629 of the Commission's Rules IS GRANTED IN PART and DISMISSED IN PART as moot as discussed herein. 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 William W. Kunze Deputy Chief Commercial Wireless Division Wireless Telecommunications Bureau