Subject: [NEXTEL-1] WARREN C. HAVENS Denied petition for declaratory ruling and the waiver reques(AMTS) licensee.

From: Marcel <[email-masked]>
Date: Wed, 23 Apr 2003 19:16:34 -0400

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

In the Matter of

WARREN C. HAVENS

Petition for Declaratory Ruling or Waiver Regarding Section 80.123 and Other Commission’s
Rules as Applied to Automated Maritime Telecommunications System Licenses

ORDER

   Adopted:  April 7, 2003 Released:  April 18, 2003

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications
Bureau:

1. Introduction.  We have before us a petition for declaratory ruling or, in the
alternative, waiver regarding the Commission’s rules that govern Automated Maritime
Telecommunications System (AMTS) licensees, filed by Warren C. Havens (Havens) on October
7, 2002.   For the reasons that follow, we deny both the petition for declaratory ruling
and the waiver request.

2. Background.  AMTS stations provide automated, integrated, interconnected ship-to-shore
communications similar to a cellular phone system for tugs, barges, and other maritime
vessels.   Pursuant to Section 80.475(c) of the Commission’s Rules, in lieu of public
correspondence service,  an AMTS system may provide private coast station communications
related to the operational requirements of ships.   In addition, Section 80.123 of the
Commission’s Rules permits AMTS stations to provide public correspondence service to
stations on land, as long as marine-originating traffic is given priority.

3. Havens holds a number of AMTS licenses.   He seeks to use his licensed facilities to
provide non-interconnected dispatch service and other non-public correspondence service to
units on land.   On August 15, 2002, the Public Safety and Private Wireless Division
(Division), in response to two Havens petitions for declaratory ruling, concluded that the
Commission’s Rules require that each AMTS system be interconnected to the public switch
telephone network (PSTN),  even if the station carries only private coast
communications.   The Division also concluded that AMTS stations are not permitted to
offer private communications to stations on land,  because Section 80.475(c) specifically
limits AMTS non-public correspondence to “private coast station communications related to
the operational requirements of ships.”   On October 7, 2002, Havens filed another
petition for declaratory ruling seeking clarification that AMTS licensees may provide
non-interconnected non-public correspondence service to units on land.   In the
alternative, he requests a waiver to permit him to offer such service.

4. Petition for Declaratory Ruling.  We reiterate our previous conclusion that the
Commission’s rules do not permit AMTS licensees to provide non-interconnected private
service to units on land.  We find none of Havens’s arguments to the contrary to be
persuasive.  Section 80.123 allows AMTS stations to “provide public correspondence service
to units on land.”   “Public correspondence” is defined in Section 80.5 of the
Commission’s Rules as “[a]ny telecommunication which the offices and stations must, by
reason of their being at the disposal of the public, accept for transmission.”   Havens
argues that the term “public correspondence” as used in Section 80.123 includes
non-interconnected private service.

5. We agree with Havens that nothing in the definition of “public correspondence” requires
interconnection to the PSTN.   However, we remind Havens that, as we previously concluded,
regardless of the end user (i.e., ship station, land unit or fixed station), an AMTS
system that carries the public correspondence communication must be interconnected.
Havens appears to argue that the interconnection requirement no longer applies, because
the purpose of the requirement was to enable maritime vessels to communicate with parties
on land via the PSTN, and the Commission has adopted geographic licensing rules for AMTS
that will allow licensees to serve areas that have no maritime traffic.   We disagree.
First, we note that Havens is seeking a declaratory ruling or waiver with respect to his
site-based AMTS licenses, so the operations of future geographic licensees are not at
issue.  Next, we note that nothing in Section 80.123 or the proceeding adopting it
suggests that AMTS operational rules apply differently regarding service to units on
land.   Similarly, the changes to the AMTS coverage requirement to permit service to
non-maritime areas did not eliminate either the interconnection requirement for AMTS
systems or the designation of AMTS as a maritime communications service, as evidenced by
the continuing requirement that AMTS site-based and geographic area licensees must still
ensure that marine-originating traffic is given priority and certain major waterways are
served.

6. Finally, Havens argues that the Commission has afforded AMTS licensees the option to
carry public or private correspondence, and that this flexibility extends to service to
units on land.  We disagree.  First, as discussed above, Section 80.123 expressly limits
service to units on land to “public correspondence.”  Second, as noted previously,  the
only service in addition to public correspondence that Section 80.475(c) permits AMTS
stations to provide is “private coast station communications related to the operational
requirements of ships.”   Havens’s reliance  on Section 20.9  and the Third Report and
Order in PR Docket No. 92-257  is misplaced, for those items govern public coast stations
in the 156-162 MHz (VPC) band, and not AMTS stations.  Contrary to Havens’s contention,
the Commission’s decision in GN Docket No. 93-252, did not provide all CMRS providers,
including AMTS, the flexibility to dedicate a portion of their spectrum to PMRS.
Moreover, in PR Docket No. 92-257, the Commission sought comment on its proposal to extend
this regulatory status flexibility specifically to VPC licensees.   To date, the
Commission has not proposed to extend to AMTS licensees any greater flexibility regarding
the provision of private communications then is currently allowed under Section 80.475(c).

7. Waiver Request.  Havens requests, in the event we disagree with the arguments in his
petition for declaratory ruling, that we grant a waiver of those requirements that prevent
AMTS provision of non-interconnected private communications to land units.   We may grant
a waiver request if it is demonstrated that 1) the underlying purpose of the rule(s) would
not be served or would be frustrated by application to the instant case, and grant of the
requested waiver would be in the public interest; or 2) the “unique or unusual
circumstances of the instant case” make application of the rules “inequitable, unduly
burdensome or contrary to the public interest, or the applicant has no reasonable
alternative.”

8. Havens argues that application of the Commission’s rules in the instant case would
frustrate their underlying purpose.  He asserts that the underlying purpose of the subject
rules is to allow AMTS the same flexibility for provision of private communications that
other CMRS services, such as PCS and VPC, are allowed.   This is incorrect.  As indicated
above, the Commission has not proposed to extend to AMTS licensees any greater flexibility
regarding the provision of private communications then is currently allowed under Section
80.475(c).  In fact, the Commission’s purpose in permitting public coast stations to
provide service to units on land was to enable licensees to supplement their commercial
revenues in order to support and facilitate expanded commercial service to marine
traffic.   Therefore, in the instant case, we find no conflict between the prohibition on
providing private communications service to units on land and the rules’ underlying
purpose.

9. Moreover, we find that Havens presents us with a broad policy statement, not unique or
unusual circumstances that are factually specific to his circumstances, when he states
that his waiver request should be granted because (1) application of the interconnection
requirement will frustrate the AMTS provision of data telemetry and telecommand-SCADA; (2)
the equipment currently available on a commercially feasible basis for AMTS service is
designed primarily for non-interconnected private land communications; and (3) AMTS
service will be at a competitive disadvantage with other CMRS providers if AMTS is only
allowed to provide interconnected public correspondence, rather than non-interconnected
private communications, to land units.   A grant of such a broad waiver request would
apply equally to all AMTS licensees, and would constitute, in essence, a de facto
amendment of the Commission’s Rules.  We decline to grant such a request.   Rather, such
relief would more appropriately be the subject of a rulemaking request.

10. Conclusion.  The Commission’s rules require that AMTS systems be interconnected to the
PSTN.  Under certain conditions, the rules permit non-interconnected mobile-to-mobile
communications service to ship and land units so long as the AMTS system that provides
that service is interconnected.  In lieu of the public correspondence communications that
AMTS stations can provide ships and, pursuant to Section 80.123, for land units, the
Commission permits the AMTS provision of private coast station communications that is
related to the operational requirements of ships.  For the foregoing reasons, we deny
Havens’s petition for declaratory ruling because the Commission’s rules do not permit AMTS
provision of private communications to land units.  In addition, because Havens has not
demonstrated that this prohibition frustrates the purpose of the AMTS rules or that there
are unique or unusual circumstances present, we also deny his request to waive the
Commission’s rules in order to permit provision of such service.

11. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Communications Act of
1934, as amended, 47 U.S.C. § 154(i), and Sections 1.2 and 1.925 of the Commission’s
Rules, 47 C.F.R. §§ 1.2, 1.925, the petition for declaratory ruling or, in the
alternative, rule waiver filed by Warren C. Havens on October 7, 2002 is DENIED.

12. 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

    D’wana R. Terry
   Chief, Public Safety and Private Wireless Division
  Wireless Telecommunications Bureau

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-1115A1.doc

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