Subject: [NEXTEL-1] Warren C. Havens v. ACCESS 220, LLC

From: [email-masked]
Date: Wed, 12 Nov 2003 14:56:43 -0500

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

ACCESS 220, LLC

Request for Waivers To Provide Band Management Services Utilizing Licenses In
the 220-222 MHz Band

WT Docket No. 02-224

ORDER ON RECONSIDERATION

   Adopted:  November 10, 2003 Released:  November 12, 2003

By the Chief, Wireless Telecommunications Bureau:

I. INTRODUCTION

1. This Order on Reconsideration addresses the Petition for Reconsideration and
Clarification filed by Warren C. Havens and Telesaurus Holdings GB, LLC dba LMS
Wireless (Petitioners) on November 15, 2002.   Petitioners seek reconsideration
of the Wireless Telecommunications Bureau’s (Bureau) October 16, 2002,
Memorandum Opinion and Order  that granted the above-captioned waiver request of
Access 220, LLC (Access 220).   For the reasons discussed below, we deny the
Petition.

II. BACKGROUND

2. On July 3, 2002, Access 220 filed its request seeking limited waiver of
Sections 90.733, 90.725, and 90.769 of the Commission’s Rules  in order to
provide band manager services to its newly acquired 220-222 MHz licenses.
Public Notice seeking comment on the Waiver Request was released on August 6,
2002.   After carefully considering the record in the proceeding, we granted the
Waiver Request to allow Access 220 to act as a band manager, with certain
restrictions, for the spectrum authorized under its current 220-222 MHz
licenses.   We also waived the construction requirements of Sections 90.725 and
90.769 of the Commission’s Rules.   Petitioners filed a timely petition seeking
clarification or reconsideration of the waiver grant, arguing that the Bureau
failed to explain how Access 220’s Waiver Request met the waiver standard as set
forth in the Commission’s Rules.   Access 220 filed an opposition  and
Petitioners filed a reply.   Petitioners also filed a supplement to the Petition
on May 7, 2003.

III. DISCUSSION

3. As an initial matter, we disagree with Petitioners’ claim that the MO&O fails
to explain which waiver standard was employed by the Bureau.   The statement in
the MO&O that “[g]rant of the Access 220 waiver request thus meets our section
1.925 waiver requirements” sufficiently makes clear that the waiver request
meets the waiver standard under Section 1.925 of the Commission’s Rules.
Moreover, there is no substantive difference between the waiver standard
enunciated under Section 1.925 and Section 1.3 of the Commission’s Rules.

4. We also disagree with Petitioners’ main argument that the Bureau did not
explain why Access 220 “is entitled to the grant.”   The MO&O specifically
addresses the Commission’s waiver standard and details the reasons why Access
220’s request met that standard.   Indeed, the MO&O states that a grant of the
waiver “would further the public interest by facilitating the Commission’s
stated objectives for the 220 MHz spectrum.”   In this connection, the Bureau
found, inter alia, that Access 220’s proposed band manager operations in the 220
MHz band would give potential users of 220 MHz spectrum an additional option for
deploying 220 MHz facilities, allow for tailored coverage service areas, allow
for expanded usage opportunities, and promote more efficient spectrum use.   The
Bureau also stated that “the underlying purpose of Section 90.733 would not be
served if the requested waiver were denied.”   Thus, we find that  the MO&O
“clearly articulated the standard that was applied”  and makes specific findings
as to the first prong of the waiver standard under section 1.925(b)(3)(i).

5. Finally, we reject Petitioners’ argument that the MO&O suggests future Access
220 waiver requests will be automatically granted.   To the contrary, although
Access 220 asked that the grant of its Waiver Request also apply to future 220
MHz licenses it might acquire, footnote 35 in the MO&O specifically states that
the “waiver is granted only for the authorizations included in the underlying
Waiver Request.”   Any future waivers sought by Access 220 (or any other 220 MHz
licensee) will be reviewed individually, under the criteria set forth in Section
1.925 of the Commission’s Rules.   Consequently, Petitioners’ concerns regarding
this matter are unfounded.

IV. ORDERING CLAUSES

6. Accordingly, IT IS ORDERED THAT, pursuant to Sections 4(i) and 405(a) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 405(a) and Sections
0.131, 0.331, and 1.106 of the Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331,
1.106, the Petition for Reconsideration and Clarification filed by Warren C.
Havens and Telesaurus Holdings GB, LLC dba LMS Wireless on November 15, 2003, IS
HEREBY DENIED.

     FEDERAL COMMUNICATIONS COMMISSION

     John Muleta
     Chief, Wireless Telecommunications Bureau
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-3613A1.doc

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