Subject: [NEXTEL-1] i2way Request for Declaratory Ruling Regarding the Ten-Channel Limit of Section 90.187(e) of the Commission’s Rules

From: Marcel <[email-masked]>
Date: Tue, 01 Apr 2003 13:55:02 -0500

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

In the Matter of

i2way Request for Declaratory Ruling  Regarding the Ten-Channel Limit of Section 90.187(e)
of the Commission’s Rules

Hexagram Petition to Deny i2way
Applications )

WT Docket No. 02-196

ORDER

   Adopted:  March 31, 2003 Released:  April 1, 2003

By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless
Telecommunications Bureau:

I. INTRODUCTION

1. On June 7, 2002, i2way Corporation (i2way) filed a Request for Declaratory Ruling
pursuant to Section 1.2 of the Commission’s rules, seeking clarification of the
ten-channel limit set forth in Section 90.187(e) of the Commission’s rules (i2way
Request).   In this Order, we grant in part and deny in part i2way’s Request.
Specifically, we reject i2way’s argument that Section 90.187(e) does not limit the number
of applications that can be filed in an area.  Rather, we conclude that Section 90.187(e)
limits to ten the number of channels for which an applicant can apply within a service
area.  A licensee may apply for additional frequencies in that same service area only if
it certifies that it has constructed and placed into operation all licensed channels in
that area.  We grant, however, the request that we return to pending status certain i2way
applications that were returned because of a staff mistake during the application review
process.  We also dismiss the petition filed by Hexagram, Inc. on February 28, 2002, to
deny certain i2way applications (Hexagram Petition)  because it was not timely filed and
does not allege facts sufficient to warrant further investigation.

 II. BACKGROUND

2. Trunked Operations in the Industrial/Business Radio Pool.  i2way filed multiple
applications seeking authority to provide trunked operations in the 150-174 MHz and
450-470 MHz bands.   Frequencies on those bands are divided between the
Industrial/Business Radio Pool and Public Safety Radio Pool and are authorized on a shared
basis.   While license applications for conventional operations in the Industrial/Business
Radio Pool are generally limited to one frequency or one pair of frequencies,  Section
90.187(e) of the Commission’s rules limits single applications for trunked operations to
ten channels in the bands between 150 MHz and 512 MHz (except 220-222 MHz).   Subsequent
applications for trunked operations in those bands are also limited to ten channels and
must be accompanied by a certification that all of the applicant’s existing channels
authorized for trunked operation have been constructed and placed in operation.   In
adopting the ten-channel limit for trunked operations, the Commission recognized that
large public safety applicants may require more than ten channels at a single location.
As a result, Section 90.187(e) allows public safety applicants to apply for more than ten
channels at a single location, provided the applicant makes a showing of sufficient need.

3. i2way Request for Declaratory Ruling and Hexagram Petition to Deny.  i2way states in
its Request that it intends to use both full-power and lower-power frequencies to deploy a
nationwide “system for assigning frequency pairs to be used by two-way customers.”   The
Commercial Wireless Division’s Licensing and Technical Analysis Branch returned certain
i2way applications because the applications were found to be in violation of Section
90.187(e).  Specifically, certain applications were returned because they were filed while
other applications were pending for the same service area, and other applications were
returned because i2way failed to provide the necessary construction certifications for its
licensed facilities where its application sought licensing authority in that licensed
station’s service area.   In response to the return of these applications, i2way seeks
clarification on whether the ten-channel limit “compels the return or dismissal of
applications in situations where a single applicant has filed multiple applications, each
requesting 10 channels, for different sites within the same general service area.”   The
Commercial Wireless Division placed i2way’s Request on public notice on July 29, 2002.
In response to the public notice, The Land Mobile Communications Council (LMCC) and
Industrial Telecommunications Association (ITA) filed comments,  and Motorola, Inc.
(Motorola) and i2way filed reply comments.   Finally, the Hexagram Petition requests that
the Commission deny sixty-six of i2way’s applications unless i2way shows that “it can
protect all incumbent users, including Hexagram.”

III. DISCUSSION

4. We reject i2way’s claim that Section 90.187(e) is only a limitation on the number of
frequencies for which a licensee can apply in one application, and not a limitation on the
number of applications that can be filed simultaneously within the same area.   None of
the other commenters in this proceeding share i2way’s interpretation of the ten-channel
rule.  LMCC, ITA, and Motorola state that Section 90.187(e) limits an applicant to a
request for ten initial channels in an area until those channels are constructed and
operational.   They argue that spectrum efficiency is important because the frequencies
are shared, and that licensees are required to construct before requesting additional
channels.

5. To support its interpretation of the ten-channel limit, i2way focuses solely on the
first sentence of Section 90.187(e) to the exclusion of all other requirements in Section
90.187.  The first sentence limits to ten the number of channels permitted in a single
application for trunked operations.  Section 90.187(e), however, also describes the
circumstances under which a licensee may apply for more than ten channels.  Section
90.187(e) clearly provides that “subsequent applications, limited to an additional 10
channels or fewer, must be accompanied by a certification ... that all of the applicant’s
existing channels authorized for trunked operation have been constructed and placed in
operation.”   Section 90.187(e) further provides that certified frequency coordinators may
require documentation in support of an applicant’s certification that the applicant has
constructed and placed into operation the initial ten channels before processing another
application.   Thus, a licensee must construct its maximum of ten authorized channels
before submitting an application for additional channels.

6. We also reject i2way’s claim that Section 90.187 does not define the area relevant to
the ten-channel limit.  i2way argues that a rulemaking proceeding is required to explain
how the Commission “intends to define the service area” when processing applications for
trunked operations under Section 90.187.   We disagree.  Section 90.187(e) limits single
applications to ten channels at single locations.   The license limit of ten channels at a
single location is a function of the Commission’s process for licensing trunked systems
under Section 90.187 on a site-specific basis.  Parties file single applications and
individual licenses are granted at single locations.  Section 90.187(b) delineates service
area contours at 37 dBu and 39 dBu, respectively, for each VHF and UHF station location.
Thus, licensees and frequency coordinators must determine the service areas around the
single location for which an applicant is licensed and the ten-channel limit of Section
90.187(e) applies to that service area.

7. The requirement that licensees limit the number of channels permitted in a single
application would have very little meaning if we were to interpret the rule to allow
applicants to file multiple applications simultaneously at a single location.  Under
i2way’s interpretation, there is no distinction, for example, between five applications
seeking authority to operate ten channels each, and one application seeking authority to
operate fifty channels in any given service area.  Moreover, i2way does not explain how
the construction notification requirement would apply if we allowed simultaneously filed
multiple applications.  We also reject i2way’s assertion that an interpretation of the
rule as a prohibition against multiple applications in a single area would violate the
Administrative Procedure Act (APA).   The Commission adopted the requirements for trunked
operations under Section 90.187 in notice and comment proceedings in compliance with the
APA and Commission rules.   For the same reason, we reject i2way’s argument that the
Commission has not provided clear notice of the standard used as the basis for dismissing
i2way’s applications.

8. In addition, we reject i2way’s claim that the ten-channel requirement does not apply to
decentralized trunked systems on shared spectrum.  i2way argues that the Commission did
not contemplate decentralized systems at the time it adopted the ten-channel limit  and
that, because the ten-channel requirement was adopted to prevent the warehousing of
spectrum, and shared spectrum cannot be warehoused, the limitation does not apply to
shared spectrum.   We disagree.  After adopting the ten-channel limit for trunked systems,
the Commission found that industry members were operating decentralized and hybrid trunked
systems in addition to centralized trunked systems.   In July 2000, after seeking further
comment, the Commission revised the definition of trunked systems to include centralized,
decentralized, and hybrid trunked systems and stated that all three systems are subject to
Section 90.187.   Because the rule applies to all trunked systems, including decentralized
operations in the Industrial/Business Radio Pool, it is also clear that Section 90.187(e)
applies to shared spectrum.   Significantly, the Commission did not modify Section 90.187
to limit application of the ten-channel rule to centralized systems operating on an
exclusive basis when it revised the definition of trunked systems.   Arguing now that the
ten-channel limit under Section 90.187(e) does not apply to decentralized trunked systems
is effectively a late-filed petition for reconsideration of a Commission order that was
released over two years ago.

9. Further, we will not grant i2way relief on the basis of its assertion that the
Commission’s current interpretation of Section 90.187(e) will not afford i2way sufficient
spectrum to make its proposed operations successful.   This argument is clearly irrelevant
to any consideration of how we should interpret the Commission’s rules.  We further note
that i2way has neither sought a waiver of Commission rules limiting the number of
applications that may be filed nor provided information in its Request to justify the
grant of a waiver.

10. Because we find no basis on which to grant i2way’s Request with regard to the
ten-channel limit for trunked operations below 512 MHz, we deny the Request, in part, and
direct the Licensing and Technical Analysis Branch to process i2way’s applications in
compliance with Section 90.187.  i2way applications that do not comply with Section
90.187(e) shall not be granted.

11. We grant the i2way Request, however, to the extent that certain of its applications
for 150-174 MHz were returned based on a “misreading” of the applications as requesting
thirty frequencies.   Specifically, certain applications filed by i2way in the 150-174 MHz
bands requested licensing authority for ten base station frequencies, ten mobile
frequencies, and ten frequencies that would be used for “talk around” capability.  i2way
contends that the “talk-around” frequencies were a redundant set of frequencies from the
other base station and mobile frequencies.   We conclude that these applications are
deemed to request ten channels and may be processed upon release of this item if the
applications otherwise meet Commission requirements, including Section 90.187(e).

12. Finally, we dismiss Hexagram’s Petition to Deny, which seeks interference protection
for all co-channel licensees from i2way’s operations in the 450-470 MHz bands.  Section
1.939 of the Commission’s rules provides that petitions to deny must be filed no later
than 30 days after the date of the Public Notice listing the application or major
amendment to the application as accepted for filing.   While most of the applications
listed in Hexagram’s Petition were filed in January 2001, the public notice accepting the
latest amendments to the applications listed in Hexagram’s Petition was released December
19, 2001.   The deadline for filing petitions to deny, therefore, was January 18, 2002.
Hexagram filed its Petition on February 28, 2002, nearly six weeks late.  Although
Hexagram filed its Petition with a request to accept the Petition as late-filed, Hexagram
does not provide any explanation for filing its Petition six weeks late.   We therefore
deny Hexagram’s request because it provides no basis on which to grant the request.

13. Moreover, we reject the Petition for failure to provide allegations of fact sufficient
to make a prima facie showing that grant of the applications would be inconsistent with
the public interest.   In its Petition, Hexagram describes how its data is transmitted,
but does not provide any specific information on which of its licenses would be affected
or which of the applications listed in Hexagram’s Petition, if granted, would specifically
infringe on Hexagram’s authority to operate under any of those licenses.   We find
Hexagram’s general statements of facts insufficient to warrant further investigation.
Accordingly, we dismiss Hexagram’s Petition and all pleadings related to the Petition.

14. While we are dismissing Hexagram’s Petition on procedural grounds, we also reject
Hexagram’s plea to enforce i2way’s “promise” not to interfere with any other co-channel
licensee’s operations regardless of the technology used    A “promise,” in this case, is
not relevant because the Commission has technical rules that govern the protection
required against harmful interference between co-channel licensees.   We decline in this
proceeding to provide protection beyond that afforded under the Commission’s rules for
secondary or co-primary operations in the 450-470 MHz bands.  Finally, we reject i2way’s
argument that Hexagram’s licenses should be revoked for failure to monitor its channels to
prevent harmful interference to other stations because the argument is outside the scope
of this proceeding.
IV. ORDERING CLAUSES

15. Accordingly, IT IS ORDERED that, pursuant to Sections 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 1.2 of the Commission’s rules, 47 C.F.R. §§ 0.331, 1.2, the Request for Declaratory
Ruling filed by the i2way Corporation on June 7, 2002, is GRANTED to the extent described
herein and otherwise DENIED.

16. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and 309(d) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 309(d), and Sections
0.331 and 1.939 of the Commission’s rules, 47 C.F.R. §§ 0.331, 1.939, the Petition to Deny
filed by Hexagram, Inc. on February 28, 2002, is DISMISSED.
      FEDERAL COMMUNICATIONS COMMISSION

      Paul D’Ari
      Chief, Policy and Rules Branch
      Commercial Wireless Division
 Wireless Telecommunications Bureau

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