Federal Communications Commission Washington, D.C. 20554 February 21, 2008 DA 08-414 Kenneth J. Schmier NextBus Information Systems, Inc. 1475 Powell St Suite 201 Emerville, CA 94608 Re: Request for Extension of Time to Construct Twenty-Eight Paging Licenses Dear Mr. Schmier: This letter addresses the above-captioned Request for Extension of Time to Construct (Waiver Request), filed on behalf of NextBus Information Systems, Inc. (NextBus) on June 21, 2007, seeking waiver of the construction requirements of section 22.503(k)(2) of the Commission’s rules1 for twenty- eight geographic area-based Part 22 paging licenses.2 Specifically, NextBus requests a waiver of the construction deadline until March 31, 2009 to complete construction for the twenty-eight licenses subject to the Waiver Request. For the reasons stated below, we grant the Waiver Request. Pursuant to sections 1.946(c) and 1.955(a)(2) of the Commission's rules, NextBus’s licenses will terminate automatically as of the construction deadline if NextBus fails to meet the requirements of section 22.503(k)(2),3 unless the Commission grants an extension or waives the construction requirements.4 The construction deadline for the twenty-eight licenses was June 21, 2007. A waiver may be granted, pursuant to section 1.925 of the Commission’s rules, if the petitioner establishes that: 1) the underlying purpose of the rule would not be served or would be frustrated by application to the instant case, and that grant of the waiver would be in the public interest; or 2) where the petitioner establishes unique or unusual factual circumstances, that application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.5 NextBus acquired the twenty-eight licenses (where each license is a channel pair) for thirteen different Major Economic Areas (MEAs) in June 2002 as the winning bidder in Auction No. 40. NextBus states that it provides computer-calculated prediction of transit vehicle arrival times under contract to over 1 47 C.F.R. § 22.503(k)(2). 2 Request for Extension of Time to Construct (filed June 21, 2007) (“Waiver Request”); Amendment to Request for Extension of Time to Construct (filed October 19, 2007) (“Amendment to Waiver Request”). See Appendix A for a list of the File Nos. and Call Signs subject to the Waiver Request. 3 Pursuant to section 22.503(k)(2) of the Commission’s rules, an EA paging licensee must construct facilities to cover two-thirds of the population of its license area within five years of initial license grant. 47 C.F.R. § 22.503(k)(2). 4 47 C.F.R. §§ 1.946(c), 1.955(a)(2). 5 47 C.F.R. § 1.925. The Commission has stated that, in situations in which the circumstances are unique and the public interest would be served, it would consider waiving construction requirements on a case-by-case basis. See Amendment of the Commission’s Rules To Establish New Personal Communications Services, GEN Docket No. 90-314, Memorandum Opinion and Order, 9 FCC Rcd 4957, 5019 (1994) (PCS MO&O), citing WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969). - 2 - fifty municipally owned public transit agencies across the United States and that NextBus is entirely funded by its users.6 NextBus describes its system in such a manner as “Using GPS and wireless data transmission, each bus or transit vehicle reports its location to [NextBus’s] central computer at least as frequently as every 90 seconds or a movement of 200 meters. The transmitted location data is then combined with stored operational data to produce extremely accurate predictions of vehicle arrival times.”7 NextBus states that its service provides real-time information to individuals that utilize public transportation such as minutes to arrival at a specific location, passenger load and whether a bus includes a wheel chair lift or bicycle rack.8 NextBus states that to date it has implemented some measure of its service in San Francisco, Washington, D.C., Philadelphia, Miami, Pittsburgh, Chicago, Denver, Seattle and Atlanta.9 However, NextBus argues that numerous delays in federal transportation funding to local governments has limited its ability to fully construct its system.10 Specifically, NextBus states that because the entities that contract for service (i.e., municipalities) are reliant upon federal funding to help pay for transportation projects and because money earmarked by the federal government for the reauthorization of a transportation bill that covers 2004 – 2009 was two years late in being dispersed, NextBus has been unable to fully construct its system.11 For example, NextBus states that the transportation bill contained earmarks for $4 million in San Francisco and $2.6 million in Chapel Hill, North Carolina, respectively, for NextBus service.12 NextBus states that since federal funds have been allocated, it is in a position to complete construction of its system. Based on the totality of the circumstances involved in this case, we believe that the public interest would be served by extending the construction deadline for the twenty-eight licenses listed in Appendix A until March 31, 2009. Specifically, we find that automatic termination of these licenses pursuant to Section 1.946(c) would not serve the underlying purpose of the construction rule, and that grant of the waiver would be in the public interest.13 The record indicates that NextBus has been diligent in implementing its service in many municipalities and with the extra time granted here would be able to assist other public transportation agencies wishing to implement its service. Further, termination of the licenses would not serve the public interest now that federal funding has been allocated to implement NextBus’s real-time tracking system for use by various public transit agencies across the United States. We expect that NextBus’s system will provide public interest benefits such as enhanced communication services to individuals that rely on public transportation as well as to entities that provide NextBus’s services. Finally, we believe that granting NextBus the additional time it has requested to construct its 6 Amendment to Waiver Request at 1. 7 Id. 8 Waiver Request at 1. 9 Id. at 2. 10 Waiver Request at 1; Amendment to Waiver Request at 2 – 3. 11 The original transportation bill referred to by Nextbus is the Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, 112 Stat 107 (1998). The bill that NextBus refers to as being “reauthorized” is the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, 119 Stat 1144 (2005). 12 Id. at 3. 13 See 47 C.F.R. § 1.925(b)(3)(i). - 3 - system is consistent with the Commission’s public interest goal of promoting efficient utilization of spectrum in the near term.14 Accordingly, IT IS ORDERED that, pursuant to section 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 303(r) and sections 0.331 and 1.925 of the Commission’s rules, 47 C.F.R. §§ 0.331, 1.925, the Request by the NextBus Information Systems, Inc. for Extension of Time to Construct IS HEREBY GRANTED, to extend the construction deadlines for the licenses listed in Appendix A until March 31, 2009.15 Sincerely, Thomas P. Derenge Deputy Chief, Mobility Division Wireless Telecommunications Bureau 14 See Interstate Power and Light Co, Requests for Extension of Time to Construct Private Land Mobile Radio Stations WPBI312, WPBI313, WPBI314, WPBI315, WPBI316, WPBI317, and WPBI318, and Waiver of Sections 1.946 and 90.629 of the Commission’s Rules, Order, 18 FCC Rcd 11051, 11056 ¶ 15(2003). 15 47 U.S.C. § 154(i), 47 C.F.R. §§ 0.331, 1.925. - 4 - Appendix A File Number Call Sign Market Code Market Description Channel Block 0003082590 WPVI386 MEA001 Boston AX 0003082591 WPVI387 MEA001 Boston AZ 0003082592 WPVI388 MEA002 New York City AX 0003082593 WPVI389 MEA002 New York City AZ 0003082594 WPVI390 MEA004 Philadelphia AU 0003082595 WPVI391 MEA004 Philadelphia AZ 0003082614 WPVI448 MEA005 Washington A 0003082596 WPVI392 MEA005 Washington AJ 0003082597 WPVI393 MEA005 Washington AR 0003082598 WPVI394 MEA005 Washington AU 0003082599 WPVI395 MEA005 Washington AZ 0003082600 WPVI396 MEA008 Atlanta AO 0003082601 WPVI397 MEA008 Atlanta AP 0003082602 WPVI398 MEA011 Miami AA 0003082603 WPVI399 MEA011 Miami AB 0003082604 WPVI400 MEA012 Pittsburgh AX 0003082605 WPVI401 MEA012 Pittsburgh AY 0003082615 WPVI449 MEA018 Chicago A 0003082606 WPVI402 MEA018 Chicago AV 0003082607 WPVI403 MEA018 Chicago AZ 0003082608 WPVI404 MEA030 St. Louis AE 0003082616 WPVI450 MEA033 Denver I 0003082609 WPVI407 MEA040 Phoenix AL 0003082610 WPVI408 MEA040 Phoenix AN 0003082611 WPVI409 MEA043 San Francisco-Oakland- San Jose AJ 0003082612 WPVI410 MEA043 San Francisco-Oakland- San Jose AM 0003082613 WPVI411 MEA043 San Francisco-Oakland- San Jose AT 0003082617 WPVI451 MEA046 Seattle L