FCC Record, Volume 27, No. 5, Pages 3728 to 4696, April 9 - April 27, 2012 Page: 3,774
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Federal Communications Commission DA 12-557
B. Waiver Request
10. The Bureau may grant a waiver of CloudNine's construction deadline if CloudNine
demonstrates that either (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
11. CloudNine asserts that there is no widespread economically viable use for MAS
spectrum.27 As a result, CloudNine argues that it cannot meet its substantial service deadline because
MAS equipment, while technically available, is designed only to serve uses for which there is no
demonstrated need on any large-scale basis; this equipment is not in mass production and is cost-
prohibitive for CloudNine's markets; and equity investment is unavailable because of the global financial
crisis.2" CloudNine has failed to provide sufficient evidence to support these claims and has failed to
demonstrate how its situation is unique from the other MAS licensees that have successfully met their
substantial service deadlines. In light of CloudNine's failure to explain how its situation is unique, we do
not address whether applying the rule would be contrary to the public interest, including CloudNine's
argument that requiring CloudNine to build inefficient, ineffective equipment simply to meet the October
13, 2010, deadline would not be in the public interest.2" We find that CloudNine's showing is insufficient
to meet the Commission's waiver standard, and thus, we deny CloudNine's request to waive its buildout
deadline and extend it by five years.
C. Automatic Termination of Licenses
12. Under Section 1.955(a)(2) of the Commission's rules, authorizations automatically
terminate if the licensee fails to meet construction or coverage requirements.3o In light of our conclusion
that CloudNine is not entitled to a waiver and extension of its construction deadline, we find that
CloudNine's licenses automatically terminated on October 13, 2010, the buildout deadline.
IV. CONCLUSION AND ORDERING CLAUSES
13. CloudNine has failed to justify an extension of time to meet the first buildout deadline for
the MAS licenses in question. We therefore deny the Extension Applications and declare that
CloudNine's licenses automatically terminated as of October 13, 2010.
14. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 309 of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 309, and Section 1.946 of the
Commission's Rules, 47 C.F.R. 1.946, that the requests for waiver and applications for extensions of
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except where "extraordinary circumstances indicate that justice would thus be served." Gardner v. FCC, 530 F.2d
1086, 1091 (D.C. Cir. 1976). See also, Reuters Ltd. v. FCC, 781 F.2d 946, 951-52 (D.C. Cir. 1986).
26 47 C.F.R. 1.925(b)(3); see also Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir.
1990); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), affd, 459 F.2d 1203 (1972), cert. denied, 409 U.S.
1027 (1972); 47 C.F.R. 1.3.
27 Waiver Request at 4.
2 Waiver Request at 4-5.
29 Waiver Request at 4-5.
3o See 47 C.F.R. 1.955(a)(2).
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 5, Pages 3728 to 4696, April 9 - April 27, 2012, book, April 2012; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc102307/m1/63/: accessed November 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.