Subject: [NEXTEL-1] Request for Waiver by Midport Electronics, Inc. to Allow Operation on Frequencies in the 421-430 MHz Band in the Detroit, Michigan Area

From: [email-masked]
Date: Thu, 05 Aug 2004 15:55:18 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of

Request for Waiver by Midport Electronics, Inc. to Allow Operation on
Frequencies in the 421-430 MHz Band in the Detroit, Michigan Area
FCC File No. 0000998539

ORDER
Adopted:  July 28, 2004   Released:  August 5, 2004
By the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau:
I. INTRODUCTION

1. In this Order, we address an application and accompanying request for
waiver of the Commission’s Rules filed by Midport Electronics, Inc.
(“Midport”)  seeking authorization to operate on certain frequencies in
the 421-430 MHz band,  beyond 50 miles of the geographic center of
Detroit, Michigan.  For the reasons stated herein, we grant the waiver
request.

II. BACKGROUND

2. On August 15, 2002, Midport filed an application for authorization to
commence land mobile operations on various 421-430 MHz frequencies  at a
distance of 52.8 miles from the geographic center of Detroit,
Michigan.   Midport also requested a waiver of Section 90.273 of the
Commission’s Rules  to permit its proposed operations.   Section
90.273(c) and (d) of the Commission’s Rules require that base and
control stations and mobiles, respectively, operating in the 421-430 MHz
frequency band in the vicinity of Detroit be located within 80
kilometers (50 miles) of the center of the city.   Stations operating
within these distance restrictions are authorized to transmit at a
maximum of 250 watts ERP.

3. With its proposed site approximately 53 miles from the center of
Detroit, Midport proposes to operate at a reduced power of no more than
80 watts output power (TPO).   Midport contends that the proposed
service area would be equivalent to, or less than, the geographic area
served if its proposed station were to operate at 90 watts TPO within
the 50-mile geographic restriction area.   Consequently, Midport
requests a waiver of Section 90.273(c) of the Commission’s Rules.

4. Midport argues that grant of the requested waiver would not undermine
the fundamental purpose served by Section 90.273(c).   Midport states
that the rule was adopted “to provide for the most intensive use
possible of this spectrum by land mobile entities throughout the
Buffalo, Detroit, and Cleveland areas.”   Midport states that grant of
the requested waiver would result in more extensive land mobile usage,
and would make its land mobile service available, at no cost, to various
charitable agencies and organizations in Ohio, such as the American Red
Cross, food banks, and kitchens for the homeless.   Midport also submits
that a secondary purpose of the rule is to avoid unduly impeding
operations in the Amateur Radio Service.   Midport indicates that its
proposed station location would constitute a mere de minimis extension
of the 50-mile standard.   Coupled with its proposed reduced output
power and its distance from authorized Amateur stations in the Detroit
area, Midport contends that there would be no adverse impact on stations
in the Amateur Radio Service.

5. On January 15, 2003, the former Public Safety & Private Wireless
Division, Wireless Telecommunications Bureau issued a Public Notice
seeking comment on Midport’s proposal.   On February 14, 2003,
Futronics, Inc. (Futronics) filed comments opposing Midport’s Request.
Futronics suggests that Midport’s Request presumably must be premised on
a factual demonstration that it is not possible, or would be unduly
burdensome, for Midport to operate its system in conformance with the
Commission’s Rules.   In its comments, Futronics argues that Midport has
not made a sufficient showing as to why it cannot operate its system
within the permitted 50-mile area.   Therefore, Futronics argues,
Midport’s Request should be denied.   Futronics also suggests that it
would be a novel interpretation of the Commission’s waiver standard if a
party were to establish good cause for waiver relief on the basis that
it had filed an application with erroneous site information and had
operated at that site illegally for some period of time, but now needed
a waiver to validate the illegal operation.   Futronics asserts that
Midport does not show that its customers would not be served from a
permissible location, but, rather, Midport’s entire showing addresses
its claim that the waiver relief requested would not have an adverse
impact on amateur operations in the area.   Such assertion, Futronics
contends, would only have been relevant if the Commission determined
that Midport had presented some compelling rationale for a deviation
from the Commission’s Rules.   However, Futronics contends that Midport
does not present unique or unusual factual circumstances that would
render application of the rule inequitable, unduly burdensome or
contrary to the public interest, or that Midport has no reasonable
alternative.

6. Futronics states that the Report and Order adopting the 50-mile rule
does not provide for a waiver of the distance requirement, and that
Futronics’s research did not identify any instance in which the
Commission had waived this 50-mile area requirement.   Additionally,
Futronics contends that the public interest would not be served by
granting the Request under the circumstances presented because the
spectrum beyond the 50-mile geographic area center of Detroit is
allocated on a primary basis to Federal Government radiolocation
operations  pursuant to an agreement between the Commission and the
National Telecommunications and Information Administration (NTIA).
Futronics points out that the Commission previously rejected proposals
to allow for land mobile operations outside the 50-mile area because it
would conflict with the Government Radiolocation allocation.
Additionally, Futronics notes that non-government stations may only be
authorized to use Federal Government frequencies above 25 MHz if the
Commission finds, after consultation with the appropriate government
agency, that such use is necessary for coordination of government and
non-government activities.   In this connection, Futronics observes that
there is no indication that such consultation has been initiated or that
it would likely be successful.   Further, Futronics suggests that NTIA
and other governmental entities are unlikely to permit use of these
frequencies for purposes other than national defense and homeland
security.

7. On March 3, 2003, Midport filed reply comments.   With regard to
Futronics’ assertion that Midport has failed to make a showing as to why
it cannot operate within the 50-mile area, Midport notes that according
to some distance calculation programs, such as Javanet, Midport’s
proposed station location is within 50 miles of Detroit.   Additionally,
Midport suggested that although the Report and Order that adopted the
50-mile distance requirement did not provide a waiver standard, such an
omission is of no consequence, as Commission rulemaking proceedings
typically do not provide for waivers, given that the permissibility of
waivers is addressed in Section 1.925 of the Commission’s Rules.

8. Midport observes that when the Commission adopted the rules for use
of the 421-430 MHz band in Detroit, the Commission had considered
whether the rules would be unduly restrictive on land mobile
operations.   In that proceeding, land mobile commenters suggested that
the Commission permit the operation of base and control stations
anywhere within the 50-mile radius subject to certain technical
requirements to control interference and that the Commission, in fact
agreed with this proposal.   Midport states that its proposal to operate
with no more than 80 watts TPO is consistent with such an approach.

9. Midport states that the Commission expressed no concern regarding the
potential for interference from land mobile systems to U.S. Government
operations, and only identified interference potential from Federal
Government operations to land mobile systems.   In fact, Midport
contends, the Commission stated that “pursuant to an agreement between
the Commission and NTIA,” land mobile use of the 421-430 MHz band is
subject to accepting interference from U.S. Government radiolocation
operations.   Further, Midport observes that Futronics has presented no
evidence to demonstrate that locating a base station approximately 53
miles from the geographic center creates a more significant interference
threat to homeland security than a station located 49.9 miles from
Detroit’s geographic center.   Absent evidence of harmful interference,
Midport states that granting the instant waiver request would not only
be consistent with the underlying purpose of Section 90.273(c), but also
would provide Midport the operational flexibility to locate its base and
control stations through the Detroit metropolitan area.

III. DISCUSSION

10. The Commission is responsible for the licensing of radio frequencies
to non-Government entities,  and the NTIA is responsible for the
licensing of radio frequencies to Federal Government departments and
agencies.  As a general matter, the shared use of frequencies with the
Federal Government requires coordination with, and the concurrence of,
the Federal Government.  With regard to the 421-430 MHz band, the shared
use of this band by both private land mobile radio services and the
Government Radiolocation service is made permissible by an agreement
resulting from discussions between the Commission and the NTIA.   The
NTIA has agreed to allow the United States portion of this band to be
used for non-Government purposes in the Buffalo, Detroit, and Cleveland
areas, while retaining the primary United States allocation for
Radiolocation in regions outside of the areas of these three cities.
By way of clarification, we note that our grant of authority herein
related to Midport’s proposed use of the 421-430 MHz band is made
subject to NTIA’s approval.

A. Waiver Standard

11. A request for a rule waiver in the Wireless Telecommunications
Services may be granted if it is shown that (a) the underlying purpose
of the rule will not be served or would be frustrated by its application
in the particular case, and that grant of the waiver is in the public
interest; or (b) the unique facts or unusual circumstances of a
particular case render application of the rule inequitable, unduly
burdensome, or otherwise contrary to the public interest, or the
applicant has no reasonable alternative.   Alternatively, pursuant to
Section 1.3 of the Commission’s Rules, the Commission has authority to
waive its rules if there is “good cause” to do so.   While Futronics
argues that no provision for a waiver is provided in the Report and
Order establishing the defined 50-mile area within which the subject
frequencies may be assigned, we agree with Midport that rulemaking
proceedings typically do not include specific provisions for a waiver of
the rules being adopted because Section 1.925 of the Commission’s Rules
already provides a standard for waiver of rules.  Additionally, Part 1,
Subpart F of the Commission’s Rules establishes the requirements and
conditions under which entities may be licensed in the Wireless Radio
Services as described in Part 90, including the applicable waiver
standard codified at 47 C.F.R. § 1.925.

12. Midport argues that grant of its Request is warranted under the
first prong of Section 1.925(b)(3), on grounds that denial of its
Request would frustrate the underlying purpose of Section 90.273.   As
discussed more fully below, we conclude that Midport has made a
sufficient showing that grant of the requested waiver is warranted.
Specifically, we conclude that the underlying purpose of the subject
rule would not be served by application to the instant case, and that
grant of the requested waiver would be in the public interest.  In this
regard, we note that Midport is only required to satisfy one prong of
Section 1.925.   Because we find that Midport’s waiver request satisfies
the first prong of the applicable waiver standard, we need not address
whether unique or unusual circumstances exist, whether application of
the rules would be inequitable or unduly burdensome, or whether no
reasonable alternative exists, since such condition(s) constitute the
prerequisite to relief under the second prong of the Commission's waiver
standard.
B. Underlying Purpose

13. In light of the record in this proceeding and our analysis thereof,
we believe that a waiver of Section 90.273(c) of the Commission's Rules
would further the underlying purpose to the Commission’s 50-mile
distance limitation.  In adopting the 50-mile limit, the Commission
wanted to provide for the most intensive use possible of this spectrum
by land mobile entities throughout the Buffalo, Detroit, and Cleveland
areas, while minimizing interference potential.   The Commission
recognized the contributions of the Amateur Radio Service, and did not
wish to unduly impede amateur radio operations.   In balancing these
objectives, the Commission noted that the relationship between land
mobile and amateur operations varies among the three urban areas.  In
view of the above, the Commission believed it appropriate to tailor its
rules concerning allowable locations for base and control stations to
best fit the situation that exists in each of the three areas.   In
Detroit, the Commission believed maximum flexibility in locating base
and control stations could be provided with little or no potential for
conflict between land mobile and amateur operations.   Accordingly, the
Commission allowed base or control stations to be located anywhere
within a 50-mile radius of Detroit.  Even with this additional
flexibility, land mobile base and control stations in the Detroit area,
the Commission observed, will be at least 40 miles from the nearest
amateur station.

14. We find that requiring Midport to operate within the specified
50-mile area limit under the circumstances presented to be unnecessary.
Midport’s proposed land mobile radio operations are intended to
facilitate more extensive use of the spectrum and provide service.
Additionally, Midport’s proposed operation with a reduced antenna height
and output power than that permitted under the Commission’s Rules, if
authorized, would decrease the risk of interference to amateur
operations when compared to licensees’ operations at the edge of the
50-mile area and at the maximum permissible antenna height and output
power.  Additionally, the NTIA does not oppose the grant of Midport’s
waiver request to locate a base station outside the 50-mile zone
provided Midport utilizes a four-meter antenna, limits its output power
to eighty watts, and accepts a condition on its license prohibiting
modification to raise the proposed antenna height and output power.
With these conditions, we conclude that it is not necessary to require
Midport to locate its base station within the 50-mile zone to avoid
interference to amateur operations, as Midport proposes to essentially
confine its operations to an area equivalent to the maximum service area
allowable under the Commission’s rules.  A waiver appears warranted
under these circumstances because the purpose underlying the 50-mile
rule would not be served by applying it to Midport when it is unlikely
that either amateur or Federal Government licensees would experience
interference from its proposed operations, as modified by the
aforementioned conditions.

15. We also note a discrepancy between the 80 watts TPO proposed by
Midport in the Request on the one hand, and the 90 watts TPO and 250
watts ERP it proposed in its Application on the other.   Because Midport
seeks to operate outside of the 50-mile circle around Detroit, and
states that it will reduce its power below 250 watts ERP in order to
reduce potential interference to other users, we will hold Midport to
the ERP equivalent of 80 watts TPO, as proposed in its Request, rather
than the 90 watts TPO and 250 watts ERP proposed in its Application.
Using the ratio of 90 watts TPO to 250 watts ERP to determine the
equivalent ERP of 80 watts TPO, we determine that the appropriate ERP is
approximately 220 watts ERP.  We therefore limit Midport’s base station
to 220 watts ERP.

16. Futronics’ suggestion that the Commission had previously denied
requests for larger allocation areas because it would conflict with the
Federal Government Radiolocation allocation is inapposite.  Unlike the
instant Application, in the matters cited by Futronics, the Commission
considered requests that sought to expand the land mobile allocation in
the 421-430 MHz band to include an entire state.   Here, Midport seeks
only to locate its base station an approximately three-mile distance
outside of the geographic area ordinarily permitted by the 50-mile
limit.  Furthermore, Midport has proposed technical parameters that
would essentially confine its operations to avoid interference.  We also
note that the NTIA does not oppose Midport’s proposal, subject to
certain conditions.

17. Although Futronics contends that it has been unable to find any
instance in which the Commission has waived Section 90.273’s 50-mile
limitation, we believe that Midport’s waiver request is similar to that
of 470-512 MHz licensees for whom the Commission has granted requests
for waiver of analogous distance requirements in the 470-512 MHz band.
To minimize interference potential between land mobile and television
operations in the 470-512 MHz band, Section 90.305 of the Commission’s
Rules provides that land mobile operations must operate subject to
certain distance requirements.   However, to promote more extensive land
mobile use of this band in congested spectrum environments, the
Commission has, in certain instances, waived Section 90.305’s distance
requirement, provided that such land mobile operations limit their
service area within certain parameters to avoid harmful interference to
neighboring television operations.   In a similar manner, as discussed
infra, Midport proposes measures to protect neighboring operations by
reducing power and antenna height in order to confine its service
area.   Further, Midport’s operations will be licensed subject to
certain conditions, including that of operating on a non-interference
basis with respect to

Federal Government operations.

18. We also disagree with Futronics’ argument that it would be a novel
interpretation of the Commission’s waiver standard to grant Midport’s
request.   As noted above, Midport seeks authorization with respect to
frequencies that had been previously licensed to Midport.  In this
connection, Midport previously requested waiver of Section 90.273(c)’s
distance requirements to retain these frequencies.   However, we
dismissed as moot Midport’s waiver request and underlying application
because we found that the authorization for those frequencies cancelled
automatically.   Therefore, we did not reach the merits of Midport’s
waiver request.  Additionally, our Part 90 rules generally contemplate
that after a license terminates, that the previous licensee may file a
new application for use of those frequencies subject to any service
specific rules.  Indeed, our recently concluded Private Land Mobile
spectrum audit provides that applicants may file new applications and
seek to be re-licensed on frequencies that had cancelled automatically
for failure to construct.   Futronics points to nothing in our rules
that would bar Midport from filing a new application with waiver request
setting forth new information to justify use of frequencies that had
been licensed previously to Midport and GRH.   Moreover, as discussed
infra, Section 1.925 of the Commission’s Rules is the applicable waiver
standard in the instant matter, and we believe a waiver is appropriate
here because granting such relief would not disserve the underlying
purpose of the distance requirement and would better serve the public
interest than enforcing the requirement.   Indeed, we observe that this
waiver request is different from the previous request as Midport now
proposes measures to avoid interference to other users and NTIA consents
to the grant of this request subject to certain conditions.
Accordingly, we believe that granting the requested relief is consistent
with the Commission’s rules and licensing policies and procedures.

C. Public Interest

19. We also conclude that Midport has shown that grant of the Request
would be in the public interest.  Midport states that there is a need
for additional telecommunications services in the Detroit area and that
the only suitable site is located 52.8 miles from the geographic center
of Detroit.   Indeed, in the Report and Order allocating the 421-430 MHz
band to land mobile operations, the Commission noted that the purpose of
its action is to help satisfy the communications capacity needs of the
private land mobile radio services in the vicinity of Detroit by
allocating portions of the 421-430 MHz band for land mobile use near
this city.   In addition, Midport states that it will make its land
mobile service available, at no cost, to various charitable agencies and
organizations in Ohio, such as the American Red Cross, food banks, and
kitchens for the homeless.   We believe that Midport has shown that its
proposed operation would serve the public interest by increasing the
availability of communications services near Detroit, without resulting
in interference to amateur and Federal
Government operations.

D. Other Matters

20. Section 2.106 footnote US230.   An authorization of Midport’s
proposed operations also requires a waiver of footnote US230 of Section
2.106 of the Commission’s Rules.   This section provides that
non-government land mobile service be allocated on a primary basis in
the bands 422.1875-425.4875 MHz and 427.1875-429.9875 MHz within
50-miles of Detroit.   For the reasons stated above with regard to
Midport’s waiver request, we believe that granting Midport a waiver of
Section US230 would serve the public interest.  Therefore, we will, on
our own motion, waive US230 in order to permit Midport’s operation.

IV. CONCLUSION

21. We conclude that Midport has made the requisite showing that a
waiver of the 50-mile distance restriction is warranted under the
circumstances presented.  In order to further ensure that this waiver is
consistent with the public interest, we will impose the following
conditions: Midport shall (1) utilize a four-meter antenna, (2) limit
its output power to 80 watts TPO or its equivalent 220 watts ERP, (3)
have as a condition on its license be prohibited from any modification
to raise the proposed antenna height and TPO/ERP, and (4) be licensed on
a secondary basis to Federal Government users.  For the reasons stated
herein, we therefore grant Midport’s request for waiver.

V. ORDERING CLAUSES

22. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), and Section
1.925 of the Commission’s Rules, 47 C.F.R. § 1.925 the Waiver Request of
Midport Electronics, Inc., for waiver of Section 90.273(c), 47 C.F.R. §§
90.273(c), is GRANTED to the extent described above and, on our own
motion, we waive Section 2.106 US 230 of the Commission's Rules, 47
C.F.R. §§ 2.106 US 230.

23. IT IS FURTHER ORDERED, that pursuant to Sections 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), the
associated license application for frequency pairs in the 421-430 MHz
band, FCC File No. 0000998539, SHALL BE PROCESSED in accordance with
this Order.

24. This action is taken under delegated authority pursuant to Section
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 Critical Infrastructure Division
Wireless Telecommunications Bureau

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-2439A1.doc

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