Subject: [NEXTEL-1] FCC Admonishes New Orleans Convention Center For Leasing Out Mobiles On Its Public Safety Frequencies To End Users.

From: [email-masked]
Date: Wed, 28 Apr 2004 19:21:56 -0400

FCC Admonishes New Orleans Convention Center For Leasing Out Mobiles On
Its Public Safety Frequencies To End Users.

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

In the Matter of

New Orleans Convention Center

Licensee of Station WPJS469,
New Orleans, Louisiana

File No. EB-03-TS-134

MEMORANDUM OPINION AND ORDER

Adopted:  April 23, 2004 Released:  April 27, 2004

By the Chief, Enforcement Bureau:

I. INTRODUCTION

1. In this Memorandum Opinion and Order (“Order”), we conclude that the
New Orleans Convention Center (“NOCC”), licensee of public safety radio
station WPJS469, New Orleans, Louisiana, has violated Sections 90.179
and 1.903(a)  of the Commission’s Rules (“Rules”) by leasing mobile
units operating on its public safety frequencies to end users.  We
admonish NOCC for these violations.  However, we deny the request filed
by Two-Way Communications, Inc. (“Two-Way”) for an Order to Show Cause
(“Request”), which seeks revocation of NOCC’s license for station
WPJS469.

II. BACKGROUND

2. The New Orleans Convention Center is a registered trade name of the
Ernest N. Morial New Orleans Exhibition Hall Authority (“Authority”).
The Authority is a public body created by the Louisiana Legislature and
is charged with creation and operation of the NOCC.  NOCC does not
receive public subsidies.  It finances its operations by the sale of
goods and services.   The Convention Center building is a concrete and
iron structure of 3,500,000 square feet, with 11 exhibit halls that are
approximately 100,000 square feet each.  The building is 0.9 mile long
and 0.3 mile wide.  NOCC holds a license for station WPJS469 in the
Public Safety/Special Emergency service for operations in and
immediately around the Convention Center building.  Station WPJS469 is
authorized to operate on eight channel pairs in the 800 MHz band.

3. Two-Way holds radio station licenses in the Business/Industrial
service that encompass the area surrounding the New Orleans Convention
Center.   On January 21, 2003, Two-Way filed a Request for an Order to
Show Cause, seeking revocation of NOCC’s license for station WPJS469.
In its Request, Two-Way argues that NOCC is using station WPJS469 for
commercial purposes.  Two-Way asserts that NOCC has contracted with
Tomba Communications and Electronics, Inc. (“Tomba”) to manage NOCC’s
public safety radio system and to lease handheld radios on that system
to NOCC’s customers and contractors for a fee.  Two-Way also charges
that the “misuse of this public safety license was conceived prior to
the Convention Center’s submitting its initial application” for the
license.   In this regard, Two-Way asserts that the initial application
requested authorization for 900 mobile units, too many for the “small
coverage area” of 3.5 million square feet of the interior of the
Convention Center.   Accordingly, Two-Way charges that NOCC
misrepresented facts and demonstrated lack of candor in filing its
license application.

4. Two-Way further states that anyone wishing to use any other wireless
device within the Convention Center building must acquire prior approval
from an engineering company with which NOCC has contracted to ensure
that the proposed wireless device will not interfere with its internal
antenna systems.  Two-Way provides a document entitled “Radio Frequency
Coordination Procedure” in which NOCC requires that “[a]ny person or
entity propagating radio signals within the [Convention Center], or
receiving signal from any source not served by the [Convention Center]
antenna system, must apply for prior approval….There is a charge for
this engineering review….”   Accordingly, Two-Way argues,  NOCC has
usurped the Commission’s authority for the purpose of engaging in
anti-competitive practices.

5. The Spectrum Enforcement Division (“SED”) of the Enforcement Bureau
issued a letter of inquiry to NOCC on July 8, 2003.    In its response,
NOCC denied that it uses station WPJS469 for commercial purposes.  It
states that it uses the station in a manner consistent with Section
90.20(a)(1) of the Rules,  and makes its system available to customers
on a “user fee sharing basis styled in the form of a lease.”

6. NOCC states that it has a public safety department employing 66
officers, and provides for a medical staff that operates out of three
offices spread evenly throughout the building.  NOCC also states that it
hosts conventions, trade shows and other events that require
installation, operation and demolition with extensive use of heavy
machinery in confined quarters, construction of large structures with
heavy elements and rapid transportation of a large number of people over
the length of the building. NOCC states that these activities would be
extremely hazardous and inefficient without excellent coordination of
the customers, Convention Center staff, public safety personnel and
medical subcontractors.

7. NOCC explains that communications throughout the Convention Center
building originally were accomplished with handheld radios but without a
wired antenna system to support mobile communications.  Eventually, NOCC
contracted with Two-Way to install a radio network in the building that
supported Two-Way’s radio station frequencies.  NOCC states that Two-Way
subsequently made application on NOCC’s behalf for NOCC”s public safety
radio station license.   Two-Way’s contract was later terminated and its
network removed and replaced with a new trunking and distributed antenna
system belonging to NOCC, which uses NOCC’s public safety frequencies
and also provides cellular telephone coverage.  NOCC allows its
customers and contractors to use the public safety radio system by
providing preprogrammed radios at a “nominal cost.”   NOCC issued a
request for proposal (“RFP”) for a contractor to manage the internal
trunked system, equipment, and rental of the mobile units to visiting
conventioneers and contractors and subsequently selected Tomba to manage
the system.  NOCC argues that this use does not qualify as “commercial”
and is consistent with the rules under which the license was issued.

III. DISCUSSION

8. Section 1.903(a) of the Rules provides that stations in the Wireless
Radio Services may be used only in accordance with the rules applicable
to their service.  Section 90.179 of the Rules describes the manner in
which licensees may share use of private radio stations.

9. The record before us indicates NOCC’s use of its Public
Safety/Special Emergency radio station, WPJS469, violates Sections
1.903(a) and 90.179 of the Rules.  Public safety licensees on
frequencies in the 800 MHz band may not operate as a for-profit private
carrier.   NOCC is permitted under its station authorization to enter
into non-profit cost sharing agreements with other entities; however,
entities entering into such agreements with NOCC must themselves be
eligible to be licensed for public safety frequencies.   Further, our
rules require NOCC to have a written agreement with each such entity
that sets out (1) the method of operation, (2) the components of the
system that are covered by the sharing arrangements, (3) the method by
which costs are to be apportioned, and (4) acknowledgement that all
shared transmitter use must be subject to the licensee’s control.

10. In addition, stations licensed in the public safety frequency bands
may transmit only communications related directly to imminent
safety-of-life or property and/or communications directly related and
necessary to activities that “make the licensee eligible for the station
license …,” including all communications provided under cooperative
sharing arrangements.   Finally, our rules hold NOCC directly
responsible for the proper operation and use of each transmitter for
which it is licensed.   NOCC must exercise whatever direction and
control is necessary to assure that all authorized facilities are used
(1) only for permissible purposes, (2) only in a permissible manner, and
(3) only by persons with authority to use and operate the equipment.
The Commission holds NOCC directly responsible for the compliance of its
operations with all laws and regulations, notwithstanding that it may
have contracted management of its system to a third party.

11. The record indicates that NOCC, through its contractor Tomba, is
leasing mobile units for use on its public safety radio system to
customers and contractors in the Convention Center.  While NOCC claims
that it leases its mobile units at a “nominal cost,” we do not believe
that such leases qualify as non-profit, cost sharing agreements within
the meaning of Section 90.179(a).  In this regard, there is no
demonstrated nexus between the cost of the mobile units to NOCC’s
customers and contractors and the actual cost of the system.  In
addition, NOCC rents its mobile units with no apparent effort to ensure
that only authorized users (i.e., entities themselves eligible to be
licensed on public safety frequencies) have mobile units and that only
authorized communications (i.e., communications directly related to
imminent safety-of-life or property and communications directly related
to activities that make the licensee eligible for the license) take
place on the system.  Finally, while it is permissible for NOCC to hire
Tomba to manage its system, it does not appear that NOCC is exercising
direct responsibility for, and control over, all actions taken by its
contractor.

12. Notwithstanding our findings with regard to NOCC, we do not believe
that issuance of an Order to Show Cause is warranted.  Two-Way has not
established that NOCC misrepresented facts or lacked candor in its
application for the public safety radio station.    From the facts in
the record before us, it appears that NOCC arrived at its decision to
make overly broad use of the public safety system after its contract
with Two-Way ended.  Moreover, the record evidence does not support a
finding that NOCC intentionally used its public safety radio system in
an anti-competitive manner.  Accordingly, we deny Two-Way’s Request.

13. As a result of our review of this matter, we conclude that Two-Way
has not provided justification for our initiation of a revocation
proceeding.  However, the record indicates that NOCC is in violation of
Sections 1.903(a) and 90.179 of the Rules, and we believe that an
admonishment is warranted.

14. Finally, we require, pursuant to Section 308(b) of the
Communications Act of 1934, as amended (“Act”),  that NOCC submit a
report to the Enforcement Bureau within 30 days of the release date of
this Order demonstrating that it has brought its activities with regard
to station WPJS469 into compliance with the Commission’s rules as
discussed herein.  NOCC’s report must be submitted in the form of an
affidavit or declaration signed by a duly authorized representative of
NOCC.

IV. ORDERING CLAUSES

15. Accordingly, IT IS ORDERED that NOCC IS ADMONISHED for violating
Sections 90.179 and 1.903(a) of the  Rules.

16. IT IS FURTHER ORDERED that the Request for Order to Show Cause filed
by Two-Way Communications, Inc. IS DENIED.

17. IT IS FURTHER ORDERED that, pursuant to Section 308(b) of the Act,
NOCC must submit the report described in paragraph 14 no later than
thirty (30) days from the date of release of this Order to:  Federal
Communications Commission, Enforcement Bureau, Spectrum Enforcement
Division, 445 12th Street, S.W., Washington, D.C. 20554, Attention:
Susan Magnotti.

18. IT IS FURTHER ORDERED that, a copy of this Order shall be sent by
first class and Certified Mail, Return Receipt Requested, to counsel for
New Orleans Convention Center, Matthew P. Chenevert, Office of Legal
Counsel, 900 Convention Center Boulevard, New Orleans, Louisiana, 70130,
and to counsel for Two-Way Communications, Inc., Garret R. Hargrave,
Schwaninger & Associates, P.C., 1331 H Street, N.W., Suite 500,
Washington, DC, 20005.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon
Chief, Enforcement Bureau

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1091A1.doc
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