Federal Communications Commission da 00-933



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Federal Communications Commission DA 00-933


Before the

Federal Communications Commission

Washington, D.C. 20554
In the Matter of )

)

AMERICAN PRESIDENT LINES, ) File No. A028737



BERGEN BRUNSWICK DRUG COMPANY, ) File No. A036159

DIONEX CORPORATION, ) File No. A033104

FORT BRAGG UNIFIED SCHOOL DISTRICT, ) File No. A033105

ROWLAND UNIFIED SCHOOL DISTRICT ) File No. A027645

)

Petitions for Reconsideration of Grant of )



Private Land Mobile Radio Licenses at )

Various Locations Throughout the United States )


MEMORANDUM OPINION AND ORDER

Adopted: April 26, 2000 Released: April 28, 2000
By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:

I. INTRODUCTION
1. In this Memorandum Opinion and Order, we address petitions filed by various automobile clubs affiliated with the American Automobile Association (AAA) seeking reconsideration of the grant of private land mobile radio (PLMR) licenses to the above-captioned parties. The petitioners request that the above-captioned licensees be moved to other shared frequencies. Based on the record in this proceeding, we conclude that the petitions for reconsideration should be denied.

II. BACKGROUND
2. In 1996, the Commission consolidated the twenty existing PLMR services into two frequency pools, Public Safety and Industrial/Business (I/B), and determined that each of the frequency coordinators that were certified to provide coordination services in any of the radio services included in the I/B pool would be eligible to coordinate any frequency in the I/B pool.1 Frequencies that had been assigned to the Automobile Emergency Radio Service (AERS) and were exclusively coordinated by AAA were included in the I/B Pool.2 The Commission provided, however, that frequencies formerly allocated exclusively to the Power, Petroleum and Railroad radio services would continue to be coordinated only by the relevant coordinator.3 On reconsideration, the Commission expanded the exception (of exclusive coordination) to include frequencies formerly allocated to those services on a shared basis, and to frequencies formerly allocated on an exclusive or shared basis to the AERS.4 The rule change with respect to former AERS frequencies took effect on August 5, 1999.5
3. On November 6, 1998, American President Lines filed an application for authorization to operate on 452.525 MHz and 452.550 MHz, I/B Pool frequencies previously allocated to the AERS.6 The request was coordinated by the Personal Communications Industry Association (PCIA), one of the Commission-certified I/B Pool frequency coordinators. The application was granted, for Call Sign WPMW935, Los Angeles, California, on March 4, 1999. On March 26, 1999, the Automobile Club of Southern California (ACSC) filed a petition for reconsideration of the license grant.7
4. On November 15, 1998, Rowland Unified School District filed an application for authorization to operate on 452.5625 MHz and 452.6000 MHz, I/B Pool frequencies previously allocated to the AERS.8 The request was coordinated by PCIA. The application was granted, for Call Sign WPMW618, Rowland Heights, California, on February 25, 1999. On March 26, 1999, ACSC filed a petition for reconsideration of the license grant.9
5. On February 3, 1999, Fort Bragg Unified School District filed an application for authorization to operate on 150.905 MHz, an I/B Pool frequency previously allocated to the AERS.10 The request was coordinated by PCIA. The application was granted, for Call Sign WPNR635, Mendocino, California, on May 17, 1999. On June 15, 1999, the California State Automobile Association (CSAA) filed a petition for reconsideration of the license grant.11
6. On February 3, 1999, Dionex Corporation filed an application for authorization to operate on 452.550 MHz, an I/B Pool frequency previously allocated to the AERS.12 The request was coordinated by PCIA. The application was granted, for Call Sign WPNX331, Santa Clara, California, on July 23, 1999. On August 23, 1999, CSAA filed a petition for reconsideration of the license grant.13
7. On April 5, 1999, Bergen Brunswick Drug Company filed an application for authorization to operate on 452.550 MHz and 452.575 MHz, I/B Pool frequencies previously allocated to the AERS.14 The request was coordinated by PCIA. The application was granted, for Call Sign WPNV591, Sacramento, California, on July 6, 1999. On August 5, 1999, CSAA filed a petition for reconsideration of the license grant.15

III. DISCUSSION
8. The petitions for reconsideration make several similar or overlapping arguments, so for administrative convenience and efficiency we will address them collectively herein. The petitioners argue that the subject licensees should be moved to more suitable frequencies, to avoid an adverse impact on the petitioners’ operations. In support of this argument, the petitioners challenge the frequency coordination of each license, including failure to account for interference potential using the proper contours. They also argue that the licensees did not adequately justify the number of channels for which they applied and were authorized. Finally, the petitioners argue that the license grants should be rescinded because, as noted above, the Commission subsequently amended its Rules to provide that the former AERS frequencies should be coordinated exclusively by AAA.16
9. Interference Contours. Each petitioner states that a primary reason for seeking reconsideration of the subject license grants is that they will cause interference to the petitioner’s operations, because they were improperly coordinated. In this connection, we note that the subject licenses are for frequencies in either the 150-174 MHz or 450-470 MHz band, which are available only on a shared basis and not assigned for the exclusive use of any licensee absent a waiver.17 Additionally, we note that the Commission’s Rules in effect at the time of the subject license grants specified that stations are licensed in these bands based upon a recommendation from any Commission-certified I/B Pool frequency coordinator, but did not specify a method for accomplishing the required coordination, such as contour analysis.18 Therefore, we do not believe that any overlap between petitioners’ and respondents’ coverage areas19 is necessarily evidence of improper coordination or licensing.20 We find that the record in this proceeding is devoid of evidence that the subject license grants are inconsistent with or violative of the Commission’s Rules. Thus, we conclude that the petitioners must share these frequencies with respondents.21 In the event of actual harmful interference to petitioners’ operations (as opposed to potential interference based on predicted contours), we remind all parties involved of their mutual obligations to attempt to resolve the problem.22
10. Spectrum Efficiency Requirements. We note, as an initial matter, that American President Lines, Rowland Unified School District, Fort Bragg Unified School District, Dionex Corporation, and Bergen Brunswick Drug Company were already licensed on other frequencies before being authorized on the subject frequencies. Section 90.35(e) of the Commission’s Rules requires a satisfactory showing of need when applicants seek more than one frequency or pair of frequencies in a given area.23 The petitioners argue that the grant of multiple frequencies to the licensees was improper because the applicants did not adequately justify multiple frequencies.24 We find, however, that authorizing the licensees to operate on multiple frequencies actually ameliorates rather than contributes to the licensees’ impact on the petitioners’ operations; thus, we believe that the petitioners are not harmed by this aspect of the license grants. In light of the fact that the contested frequencies are shared, we believe that an assignment of multiple frequencies to a single entity in a given geographical area could be beneficial. The effect of multiple frequencies for a single entity is that there are more channels to choose from, which can deter congestion on otherwise singular conflicting channels. If these licensees have more channels to use, then the licensees are able to distribute their communications across more than one channel, thereby reducing the load on channels heavily used by others, including the petitioners.

IV. CONCLUSION
11. For the reasons set forth above, we deny the petitions for reconsideration. We are not persuaded that the automobile club petitioners have demonstrated any impediment to their shared use of spectrum that would exceed the limits contemplated by the Commission’s Part 90 Rules.

V. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the petition for reconsideration filed by Automobile Club of Southern California (ACSC) against American President Lines on March 25, 1999, IS DENIED.
13. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the petition for reconsideration filed by California State Automobile Association, Inc. (CSAA) against Bergen Brunswick Drug Company on August 5, 1999, IS DENIED.
14. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the petition for reconsideration filed by CSAA against Dionex Corporation on August 23, 1999, IS DENIED.
15. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the petition for reconsideration filed by CSAA against Fort Bragg Unified School District on June 15, 1999, IS DENIED.
16. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the petition for reconsideration filed by ACSC against Rowland Unified School District on March 25, 1999, IS DENIED.
17. This action is taken pursuant to delegated authority granted under the provisions of 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

1Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, Second Report and Order, PR Docket No. 92-235, 12 FCC Rcd. 14307, 14317 ¶ 20, 14328 ¶ 40 (1997).

2Id. at 14317 ¶ 20.

3Id. at 14330 ¶ 42.

4Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, Second Memorandum Opinion and Order, PR Docket No. 92-235, 14 FCC Rcd. 8642, 8651 ¶ 18 (1999) (Refarming Second MO&O). This decision has been stayed with respect to frequencies formerly allocated on a shared basis to the Power, Petroleum and Railroad radio services, pending resolution of petitions for reconsideration. Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, Fourth Memorandum Report and Order, PR Docket No. 92-235, FCC 99-203, ¶ 14 (rel. Aug. 5, 1999) (Refarming Fourth MO&O).

5See 64 Fed. Reg. 36528, 36528 (1999).

6FCC File No. A028737 (filed Nov. 6, 1998).

7Automobile Club of Southern California (ACSC) Petition for Reconsideration against American President Lines (filed Mar. 26, 1999).

8FCC File No. A027645 (filed Nov. 15, 1998).

9ACSC Petition for Reconsideration against Rowland Unified School District (filed Mar. 26, 1999).

10FCC File No. A033105 (filed Feb. 3, 1999).

11California State Automobile Association (CSAA) Petition for Reconsideration against Fort Bragg Unified School District (filed June 15, 1999).

12FCC File No. A033104 (filed Feb. 3, 1999).

13CSAA Petition for Reconsideration against Dionex Corporation (filed Aug. 23, 1999).

14FCC File No. A036159 (filed Apr. 5, 1999).

15CSAA Petition for Reconsideration against Bergen Brunswick Drug Company (filed Aug. 5, 1999).

16In addition, the petitioners argue that the subject licensees should be relocated to protect their operations because Congress has recognized automobile clubs as “quasi-public safety entities.” We recognize that the legislative history of the Balanced Budget Act of 1997 declares that automobile clubs provide a “valuable public safety service” protecting the safety of life, health and property. See H.R. Conf. Rep. No. 217, 105th Cong., 1st Sess. at 572 (1997). We disagree, however, with the petitioners’ suggestion that the Balanced Budget Act requires a reinterpretation of our PLMR frequency coordination procedures. See Landlinx Communications, Order on Reconsideration, DA 99-3038, at ¶ 5 (WTB PSPWD rel. Jan. 3, 2000). Indeed, the Wireless Telecommunications Bureau specifically informed the public that the enactment of the Balanced Budget Act would not change the effect of the rules consolidating the PLMR services. See Rules Adopted in the Refarming Second Report and Order (PR Docket No. 92-235) To Go Into Effect October 17, 1997, Public Notice, 13 FCC Rcd. 8040, 8040 (WTB 1997).

17See 47 C.F.R. § 90.173.

18See 47 C.F.R. §§ 90.173(f), 90.173(i).

19One licensee challenges its petitioner’s interference contour overlap study, based on the way that it was computed. Dionex Corporation Opposition at 3, 4 (filed Sept. 8, 1999). Because we decide this issue on other grounds, we need not resolve this dispute regarding computation of contour studies.

20See Douglas R. Thompson d/b/a Cara Enterprises, DA 00-272, ¶ 9 (WTB PSPWD rel. Feb. 14, 2000); Landlinx Communications, DA 99-3038, ¶ 4 (WTB PSPWD rel. Jan. 3, 2000).

21We disagree with petitioners’ contention that the Balanced Budget Act changes this conclusion. Section 309(j)(2) of the Communications Act pertains to the Commission’s competitive bidding authority, which is not an issue in this matter. 47 U.S.C. § 309(j)(2). We nonetheless note that implementation of the Balanced Budget Act is the subject of a current Commission rulemaking proceeding. See Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended, Notice of Proposed Rule Making, WT Docket No. 99-87, 14 FCC Rcd 5206 (1999).

22See 47 C.F.R. § 90.173(b).

2347 C.F.R. § 90.35(e).

24ACSC Petition against American President at 4; CSAA Petition against Bergen Brunswick at 6; CSAA Petition against Dionex at 8; CSAA Petition against Fort Bragg at 6; ACSC Petition against Rowland at 4.



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