WPC 2B1J CourierTimes New RomanLetter GothicLetter Gothic BoldP"|j 0_1HPLAS4.PRS 4x  @\_)^X@26 Fw "|j omanLetter GothicLetter Gothic Bold06-09-94 09:05a  26 Z9KJHP LaserJet 4_230_1HPLAS4.PRS 4o\  PC\_)^XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdTimes New RomanLetter Gothic  P6G;XP, 6mmm,/Xm H@7@j 5mmm,"LXm `7, c!BBB,?ijB H@7@2Xh%{\7jC:,Xj\  P6G;XP, 6mmm,RXm H@7@j 5mmm,Xm `7, c!BBB,jB H@7@ 6<#&mRg@QR&@#  $// Regional Communications, Inc., FCC 94342//$ $/ 90.615(b)(2)(ii) Frequencies Available in General Category/$ $/ 90.621(c) Selection and assignment of frequencies/$ "RECORD ONLY  5KX01Í ÍX01Í Í "Before the Federal Communications Commission FCC 94342 =Washington, D.C. 20554  68 < In the Matter of  5 K Regional Communications, Inc.  6 < Licensee of SMR Station WNVA721 Application to take assignment of Frequency 853.1875 MHz from Dale Walsh and convert the  6.<frequency to trunked use.  6<  6K  MEMORANDUM OPINION AND ORDER ă Adopted: December 23, 1994 Released: February 9, 1995 By the Commission:  6K^ INTRODUCTION ă  6<x1. Mobile Communications Service of Miami, Inc. ("Mobile") filed an Application for Review (the "Application") on September 8, 1992. In the Application, Mobile asks the Commission to set aside a grant of authority to Regional Communications, Inc. ("Regional") allowing Regional to take assignment of a single channel conventional station and then to combine that channel with other existing conventional  6<stations to form a trunked SMR system.h3 6!<ԍ Mobile's Petition for Reconsideration relating to these issues was denied by letter from Terry Fishel, Chief, Land Mobile Branch, Licensing Division, Private Radio Bureau to John Prendergast, dated August 7, 1992.  6^ <x2. In order to decide this case, we explain our policies on enforcement of our rules requiring certain licensees to be in operation within specified periods in light of clarified "placed in operation"""0*0*0*("  6<requirements adopted on October 24, 1991.B 6j< x5%<ԍ See Paragraphs 410, Report and Order adopted October 24, 1991,  xq%<PR Docket No. 90481, 6 FCC Rcd. 7297, 729899 (1991). We amended Rule  x%<Sections 90.631 and 90.633, 47 CFR  90.631 and 90.633, to clarify that  x%<an end user has to be operating by an SMR station's construction/ placed in operation deadline. We also explain the interaction between former rule  90.615(b)(2)(ii) and former rule " 0*0*0*6$"  6<90.621(c) of the Commission's Rules.mB 6j<ԍ 47 C.F.R.  90.615(b)(2)(ii) and 90.621(c). The former versions of these sections were adopted on June 14, 1990 by Report and Order, P.R. Docket No. 87213, 5 FCC Rcd. 4016 (1990). These rules were revised by Report and Order, 8 FCC Rcd 7293 (1993) and a correction thereto published at 58 Fed. Reg. 61843 (1993).m For the reasons that follow, the Application is denied.  6hK" BACKGROUND  6C<  6<x3. Mobile objects to the grant of authority to Regional to acquire station WNUX405 from Dale Walsh and combine that station, with  6<others, to form a trunked SMR system under call sign WNVA721.(h 6E<ԍ The Licensing Division of the Private Radio Bureau granted Regional this authority on May 19, 1992. On June 18, 1992, Mobile filed a Petition For Reconsideration of this grant. The Licensing Division denied this petition by letter dated August 7, 1992.( x  6<x4. Mobile and Regional both operate on 853.1875 MHz in Florida. Their base stations are approximately 52 miles apart. Both licensees utilize this channel in trunked SMR systems.  6 <x5. Mobile makes three arguments why the grant of authority to Regional is improper. The first argument concerns Regional's predecessor, Dale Walsh. Mobile claims that Walsh failed to timely construct his station and place it in operation, and as a result his license cancelled automatically. Mobile bases this claim on the assertion that no end users were licensed by Walsh's construc 6 <tion/placedinoperation deadline.   6<ԍ See 47 C.F.R. 90.633. Conventional licensees such as Walsh are required to construct their stations and place them in operation within eight months of the license grant.  6<x6. Mobile also argues that because it operates a cochannel facility 52 miles from the Regional system, former rule 90.615(b)(2)(ii) required that Mobile obtain its written consent  6K<prior to being permitted to trunk this channel. See 10, infra.  6<x7. Finally, Mobile argues that Regional's technical showing was inadequate. Mobile points out that confusion existed regarding the height of the building on which Regional's repeater was mounted, thus causing Regional to rely on erroneous data when filing its application"X 0*((K" for authority to trunk the channel in question.  6K" DISCUSSION ă  6i<x8. Mobile's first argument is that the Walsh license cancelled automatically because no end users applied for licenses on his system until several weeks after his construction/placedinoperation dead 6<line. By Report and Order (Order) adopted October 24, 1991, 6 FCC Rcd. 7297 (1991), we amended our rules, 90.631 and 90.633, to clarify that for conventional systems, the licensee must construct the base station and place one mobile in operation eight months from the date of  6_ <licensing. Id. at 7299, 7316. At that time, we directed that enforcement of these provisions begin with systems having construction dates  6 <falling on or after the effective date of the Order, January 21, 1992.  6} <ԍ In paragraph 8 of the October 24, 1991 Order, we stated: XxX` ` We will begin enforcement of both rules (as per paragraphs 9 and 10) for licensees with eightmonth or oneyear construction/placedinoperation deadlines falling on or after the effective date of this proceeding.x` 6 FCC Rcd. at 7299 (footnotes omitted). Because the Walsh construction deadline was August 13, 1991, his system predates the start of our enforcement of the revised construction and  6 <placed in operation requirement.9h :  6}<ԍ With Walsh's license issued on December 13, 1990, his construction/placedinoperation deadline was August 13, 1991. Regional provided convincing evidence, including receipts and Walsh's certification of construction, that Walsh constructed his station by that date.9  6U<x9. We provided this prospective enforcement schedule due to the significant confusion which, at that time, surrounded the "placed in operation" requirement. Having announced this schedule, we find that Mobile's assertions that Walsh's license cancelled automatically are not well taken. It would be unfair to enforce the clarified requirement given the misunderstanding over what constituted placing a station  6q<into operation. Having constructed his station which was capable of being operated, Walsh apparently believed that he had satisfied all  6%<necessary requirements. The Commission, in its Order, clarified that constructing a station and placing it in operation are two separate actions, each of which must be taken to satisfy the construction/placed in operation requirement. "j 0*((-"Ԍ 6<x 10. Mobile's second argument asserts that the grant of authority for Regional to combine the General Category channel obtained from Walsh with other channels to form a trunked system was improper because former 90.615(b)(2)(ii) required that the written consent of cochannel users within 70 miles be obtained prior to trunking a General Category channel. Mobile, however, does not discuss the qualifying language contained in former 90.615(b)(2)(ii), which stated: XxX` ` Each application must include a written signed statement from each cochannel licensee located within 70 miles of the primary site of the trunked system verifying that each such licensee  68 Khas agreed to the proposed trunked use (see  6 K90.621(c)) . The statement should include each  6 <licensee's call sign. (emphasis added).Uh  6X<ԍ The bolded parenthetical has been revised to read, "(see  62<exceptions at 90.621(b))". 58 Fed. Reg. 61843 (1993), in accordance  6 <with the Commission's revised shortspacing policy. See, Report and Order, PR Dkt. No. 9360, 8 FCC Rcd 7293 (1993).Ux`  6 <x 11. The parenthetical reference in former 90.615(b)(2)(ii) to  6 <former 90.621(c) qualified the 70 mile requirement.0 h  6<<ԍ This interpretation has the logical result that the process of combining conventional channels to form a trunked system mirrors the process of obtaining a General Category channel to expand a trunked system in accordance with 47 C.F.R.  90.621 (c) and (g). 0 Seventy miles is the typical separation required to prevent overlap between the predicted 40 dBu/30 dBu contours for typical cochannel systems. The separation necessary to provide this protection varies with terrain and other factors, and the rule recognizes the possibility of variance by its reference to former 90.621(c), which provides in pertinent part: XxX` ` Trunked systems authorized on frequencies in the  6rK... General categories will be protected solely  6MKon the basis of predicted contours . Coordinators will attempt to provide a 40 dBu contour and to limit cochannel interference levels to 30 dBu over an applicant's requested service area. This would result in mileage separation of 70 miles for typical system parameters. Applicants should  6j<be aware that in some areas, e.g., Seattle, Los Angeles, and northern California, separations greater than 70 miles may be appropriate. Separations may be less than 70 miles where the requested service areas, terrain, or other factors"( 0*((U#"  6Kwarrant reduction. In the event that separation is less than 70 miles, the coordinator must indicate that the protection criteria have been preserved or that the affected licensees have agreed  6iKin writing to the proposed system . (emphasis added). x` The former rule alerts applicants that protection from cochannel users was based solely on predicted contours.  6<x 12. Comparing this section with former 90.621(b), which provided for fixed mileage separation criteria of 70 miles (with enumerated exceptions) without reference to the contour protection criteria, supports this interpretation. If 90.615(b)(2)(ii) meant that trunked systems such as Mobile's were to receive protection solely on the basis of fixed mileage separation criteria, it would contradict former  90.621(c), which states that Mobile is entitled to protection solely on the basis of predicted contours. The Commission has amended its short spacing criteria and made the new criteria found in  90.621(b), 47 C.F.R.  90.621(b), applicable to all Subpart S sta 6 <tions operating over 800 MHz. See also, 58 Fed. Reg. 61843 (1993). The rules for allowing trunked use of General Category frequencies requires the written consent of all cochannel licensees within a protected zone. This zone is generally 70 miles unless a demonstration is made that the area of operation, terrain, or other factors warrant a different zone of protection. While the size of this zone has recently been changed, the policy remains unchanged.  6<x 13. The spacing between Regional and Mobile, while less than 70 miles, provides for the zone of protection described in former 90.621(c). Regional demonstrated that 40 dBu/30 dBu protection exists here, and the frequency coordinator so certified. Mobile has not contested the grant on the basis that 40 dBu/30 dBu protection is not present.  6<x 14. Further, in a Report and Order adopted June 24, 1990, PR Docket No. 87213, 5 FCC Rcd 4016, 4021 (1990), we stated our intention that the rule requiring written consent of cochannel users is to  6^ <protect licensees who share the use of a particular channel. See, Id., paragraph 44, and footnote 61. Mobile and Regional, because they are separated by a 40 dBu/30 dBu predicted contour, were not considered to be sharing this channel under the standards applicable at the time Regional's application was granted. Therefore, the text of the June 24th Order adopting former 90.615(b)(2)(ii) supports the result we are adopting today.  6.'<x15. Mobile also contests the grant of authority to Regional".' 0*((-" claiming that Regional's licensed antenna height was in error. Initially, Regional's application reflected a building height of 323 feet, which was based on information in the Commission's antenna tower database. Because the Commission returned other applications involving antennas on the same building to Regional's counsel stating that the height of the building was 299 feet, Regional amended its application to reflect the corrected information. After being alerted to the possibility that the building height was in error, Regional reviewed the building plans with the building manager and discovered that the building is 358 feet tall. Regional has applied for proper FAA clearance and to modify its license to reflect the appropriate height and  6^ <reduced power limitation to maintain the same contours.` ^  6 <ԍ See Letter from Regional dated October 20, 1992.`  6 <x16. The Licensing Division granted Regional's license modification on December 16, 1992. Mobile's arguments do not demonstrate that this inadvertent error that arose from faulty information in the Commission's database provides sufficient grounds to set aside the Regional license.  6.<x17. IT IS ORDERED THAT, for the reasons stated, the Application for Review filed by Mobile Communication Service of Miami, Inc. in the abovecaptioned matter IS DENIED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@h@Secretary