FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012 Page: 5,838
x, 5674-6652 p. ; 28 cm.View a full description of this book.
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Federal Communications Commission
construction of the license area despite having the means to bring the License into compliance.62
17. In addition, Section 1.946(e)(3) explicitly precludes extensions of construction deadlines
"because the licensee undergoes a transfer of control or because the licensee intends to assign the
authorization..." and states that "[t]he Commission will not grant extension requests solely to allow a
transferee or assignee to complete facilities that the transferor or assignor failed to construct."63 As
detailed above, since November 2008, the various license holders have not constructed any facilities in
the license area but they have repeatedly arranged to transfer or assign the largely undeveloped License to
other parties." Indeed, Commnet voluntarily entered into an agreement with the bankruptcy estate to
allow the still undeveloped License to be sold along with Crossroad Wireless' other assets rather than
complete construction of the License area just prior to the construction deadline.65 The License was most
recently assigned to NTCH in April 2010, over nine months after the License's build-out deadline.
NTCH now claims that it would be able to bring the license into compliance within six months after the
approval of the transfer. However, under the explicit terms of Section 1.946(e)(3), NTCH cannot be
granted an extension of the construction deadline simply to finish a build-out that prior license holders
neglected.66 By the same token, Commnet could not have been granted extensions simply to allow it
additional time to sell or assign the License to another party.
18. We also find that Petitioners have failed to satisfy the waiver standard set forth in Section
1.925 of the Commission's rules.67 The underlying purpose of the construction rules is to ensure the
efficient and effective use of the radio spectrum. In addition, 47 U.S.C 309(j) makes it clear that the
purpose of performance requirements, including construction timetables, for licenses acquired via
competitive bidding is to "ensure prompt delivery of service to rural areas, to prevent stockpiling or
warehousing of spectrum by licensees or permitees, and to promote investment in and rapid deployment
of new technologies and services."68 In the Original Waiver Request, Crossroads Wireless and Commnet
acknowledge that the License is not in use and has not been in use since shortly after it was assigned to
Commnet.69 They also claim that, if Commnet were to build out its system before the deadline, it would
"have to try to put up the cheapest system possible" and that it would not be put to its "highest and best
use" unless the Waiver Request is granted.70 They further note that, "[t]he constraining factor here is not a
desire to leave the spectrum fallow; rather, it is Commnet's fear of throwing good money after bad, if it
loses the Avoidance Action litigation.""7 However, it is not the licensee's financial concerns that are
relevant, but whether the spectrum is being efficiently and effectively used. It is clear from Commnet's
own statement that it could have met the construction deadline but made a business decision not to do so
and, as a result, the spectrum has gone entirely unused since approximately the time that Commnet first
obtained the License. Under these circumstances, where the licensed spectrum has gone unused through
62 See Original Waiver Request at 9-10.
63 See 47 C.F.R. 1.946(e)(3).
64 See supra Section II.
65 See First Supplement at 1.
66id.
67 47 C.F.R. 1.925.
68 47 U.S.C. 309(j)(4)(B).
69 Original Waiver Request at 2.
70 ld at 9-10.
7 Id at 9.5838
DA 12-847
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012, book, June 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc111171/m1/181/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.