NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Order,Viking Dispatch waiver,DA 95-1546//$ $/90.621 Selection and assignment of frequencies/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 DA 95-1546 In the Matter of ) ) Requests of Viking Dispatch ) Services, Inc. for Rule Waiver ) and Associated Applications. ) ORDER Adopted: July 7, 1995 Released: July 7, 1995 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On December 7, 1994, Viking Dispatch Services, Inc., (Viking) filed (i) a request for waiver (Waiver Request I) of certain Part 90 rule sections and (ii) associated applications. It proposes to construct up to forty 900 MHz Business Radio (Business) and Industrial/Land Transportation (I/LT) channels at each of forty-two locations in the United States. On March 29, 1995, Viking filed a second waiver request (Waiver Request II) to expand the proposed systems to fifty-one additional markets. On April 14, 1995, the Commission released a Public Notice inviting interested parties to comment on Viking's requests for waiver. Ten comments and four replies were filed in response to the Public Notice. All commenters opposed the grant of Viking's requests for waiver. For the reasons indicated below, Viking's waiver requests are denied. II. DISCUSSION 2. Requests for Waiver. Viking intends to be the licensee of the proposed systems. The users, however, would be Part 90 eligibles. Viking proposes to operate the systems on a non-profit, cost-shared basis. Viking requests the waiver of three Part 90 rules in order to permit its operation of the contemplated system. First, Viking states that a waiver of 47 C.F.R.  90.621(a)(1)(iii) is needed because Viking desires to be the licensee for greater than twenty channels per market. Second, Viking requests a waiver of 47 C.F.R.  90.617(b) so that all channels could be shared by Business and I/LT eligibles. Finally, Viking requests a waiver of 47 C.F.R.  90.631(g) so that it can have primary site protection for its initial authorization in each geographic area. Viking urges the Commission to grant the waiver requests so that it can provide dispatch services to a wide geographic area. Viking believes that there is a demand for such dispatch services. 3. Because of the proposed system's size and complexity, Viking also seeks an extended implementation schedule for construction of its facilities and confirmation that it may load its systems over a greater period of time than 5 years. Viking states that the proposed systems will be a private mobile radio service (PMRS), not a commercial mobile radio service(CMRS), because the systems will not be interconnected with the public switched network, will not be available to the general public, and will not be for profit. The cost-sharing arrangements will be evidenced by written agreements between the users and Viking. 4. Comments. At the crux of the Viking proposal is its request to operate on up to forty Business and I/LT channels per market. The commenters were unanimous in their opposition to allowing a single licensee, such as Viking, access to such a substantial portion of spectrum. The arguments can be divided into four general categories: lack of adequate showing, depletion of Business and I/LT pools, similarity to a CMRS, and motive. 5. Representative of the commenters who argue that Viking has not made an adequate showing is Industrial Communications & Electronics, Inc. (IC&E). IC&E asserts that Viking has failed to adequately show that there is a demand for the subject dispatch service. Viking's proposal, IC&E alleges, is not predicated on any documented, current, unsatisfied demand for 900 MHz dispatch capacity. In particular, it notes that Viking has not specified a single potential user. Commenters, such as Motorola, Inc. (Motorola), allege that the proposal is purely speculative as Viking appears to hope that given large quantities of spectrum, and an extended implementation period, sufficient numbers of customers can be enlisted. In Motorola's view, Viking has not explained why it cannot proceed in accordance with existing policies and rules and acquire one channel per market, load that channel and seek additional channels when warranted. Potomac Corporation (Potomac) raises objections, similar to Motorola's, concerning enlisting potential customers. UTC, The Telecommunications Association (UTC) contends that no need at all has been demonstrated for the proposed shared system in the 93 specified markets. 6. Several commenters raise the spectre of depletion of the Business and I/LT frequency pools, if the Viking waiver requests are granted. Industrial Telecommunications Association, Inc. (ITA), alleges that Viking's proposal raises the possible depletion of a band that is instrumental in serving the current and future spectrum requirements in the land mobile radio services. It contends that permitting the use of forty 900 MHz channels by one licensee would essentially deplete the remaining Business and I/LT frequency pools -- leaving only a handful of these channels available. The American Petroleum Institute (API) voices the same concerns. Anheuser-Busch Companies, Inc. (Anheuser), also is concerned that Viking's occupation in the designated markets could unfairly reduce or eliminate the ability of licensees, like itself, to build and expand its systems. 7. Several commenters such as Nextel Communications, Inc. (Nextel) argue that granting Viking's request would authorize a CMRS system on channels which are allocated for private, internal communications use while avoiding regulation as a common carrier. OneComm Corporation (OneComm) states that Viking's request, taken as a whole, demonstrates that the proposed system may actually involve CMRS and that it is not just a private, not-for-profit venture. Spectrum Resources, Inc. (Spectrum) also argues the Viking proposed system would be the functional equivalent of a CMRS. 8. Motive is also a concern raised by those commenting on the waiver request. IC&E asserts that Viking has not provided a rational explanation as to why it would undertake to construct systems -- involving large amounts of capital -- without any possibility of reaping any profit from the enterprise. Opponents allege that Viking is in some way affiliated with the E.F. Johnson Company (EFJ), and that this relationship has a questionable effect on Viking's proposal. Nextel, in particular, sees the EFJ affiliation as a for-profit sale or lease of EFJ radio equipment to those entities sharing the system. Nextel alleges that it is an opportunity to gain an equipment monopoly. In its reply comments, Viking affirms that it has an affiliation with EFJ -- a radio equipment manufacturer -- and that its intention is to use EFJ's analog and digital equipment in its systems. Viking believes that the use of such equipment will cause many entities with existing and future communications requirements to share the system that it will construct. 9. The commenters also oppose Viking's other requests. IC&E, for example, states that the Commission should not give Viking full co-channel protection for every site. Motorola opposes Viking's proposed extended implementation schedule saying that Viking does not plan to implement novel technology. 10. Decision. The record in this case does not support granting Viking's waiver requests. To obtain a waiver of our rules, a petitioner must demonstrate that its circumstances are unique, that good cause exists to justify the requested relief, and there is no reasonable alternative solution(s) within the existing rules. These criteria have not been met. 11. At the crux of Viking's proposed system is the request for waiver of Section 90.621 (a)(1)(iii) to permit it to use up to 40 channels per market. This section states that authorizations may be granted for up to 20 channels at a time. Its purpose is to prevent warehousing of channels in order to ensure that spectrum is used in an efficient manner. 12. The Commission does not automatically assign to license applicants for trunked or other PMRS systems the maximum number of channels available under the rules. Rather, assignments are made on the basis of a loading criterion of 100 mobile stations per channel. Viking does not provide any information regarding mobile loading data that would warrant assigning even the twenty channels allowed under our rules, let alone twice the permitted level of channel assignments. Rather, Viking indicates that currently it does not know to which markets it will provide service, nor does it know how many channels it will use in those markets. 13. Viking asserts that its system would assist Part 90 eligibles in meeting their dispatch communications requirements in an economical and efficient fashion. It contends that the proposal is superior to the authorization of individual systems to individual licensees. However, Viking provides no evidence to buttress the validity of these assertions. In fact, commenters dispute both the need for and the wisdom of Viking's proposed communications system. As noted by several commenters, many private entities have no interest in sharing their internal- use only communications with third parties. These private entities often need to establish and control their own communications facilities, in part, to ensure the security of their business communications. Further, the record indicates that private users have significant concerns about the proposal's cost-effectiveness. Viking proffers no documentation indicating that any individuals or entities exist that need or, for that matter, want the dispatch services envisioned by Viking; let alone an appropriate showing of need to satisfy our loading rules. No affidavits indicating interest in Viking's proposal are offered. Further, even though public notice of the waiver requests was given, no support, from industry or otherwise, for Viking's proposal has been forthcoming. In fact, commenters were unanimous in opposing the rule waiver requests. 14. Spectrum available for private internal radio communications is both scarce and valuable. It is for that reason that many channels allocated for PMRS use are assigned on a shared, rather than on an exclusive, basis. Particularly troublesome in this context is the number of markets specified by Viking because grant of the waivers would adversely affect other users who would find few channels remaining for private internal communications systems. For example, one commenter contends that if the applications and waivers were granted, two major markets, Boston and South Florida, would have very few remaining 900 MHz channels available for the use of other licensees. Further, favorable action based on the sparse information submitted could result in a flood of similar requests. This in turn could further reduce or eliminate 900 MHz spectrum for traditional PLMR systems. 15. Waivers of Commission rules are warranted where there are unique circumstances present. No such showing has been made in this case. Viking has failed to indicate why its situation is different from other license applicants seeking to operate private dispatch services. Neither uniqueness in technological capabilities nor in any other aspect of the proposal has been shown. Furthermore, if we grant Viking's request for forty channels, it desires an extension of the implementation schedule in constructing its facilities, as well as relief from current loading requirements. Based on these additional requests, it appears that Viking is not currently prepared to commence its proposed endeavor. 16. In addition, there are alternatives to Viking's proposal that could meet its needs. Current rules permit the assignment of additional channels when mobile loading indicates a need. Also, as Fisher Communications, Inc. (Fisher) suggests, 900 MHz dispatch service can be provided in markets throughout the country on a gradual basis by organizing trunked community repeaters wherever demand is identified. Finally, Viking could obtain the amount of spectrum it needs in the 900 MHz Specialized Mobile Radio band through the Commission's auction process. Viking has not addressed why one or more of these alternatives could not be used. 17. In view of spectrum scarcity, there is a substantial burden on any petitioner, seeking waiver of the rules concerning the number of channels assigned on either a shared or an exclusive basis, to show why the rule should be waived. Viking does not meet this burden. Neither good cause nor uniqueness of circumstances has been shown to exist in this case. Since the public interest would not be served by grant of the waiver request, it is denied. In view of our decision with respect to a waiver of Section 90.621(a)(1)(iii), there is no need to rule on Viking's other requests for rule waiver as they were contingent on a favorable outcome on the request for waiver of Section 90.621(a)(1)(iii). Nor, in light of this decision, is there any need to consider the significance, if any, of the relationship between Viking and EFJ or if, as argued, the proposed system is the functional equivalent of CMRS. III. ORDERING CLAUSE 18. Accordingly, in view of the foregoing, the requests for waiver filed by Viking Dispatch Services, Inc. ARE DENIED and the associated applications ARE DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, Wireless Telecommunications Bureau MJDePont/FLThyden:cg:pwd j:\ssd\per\waivers\part90.wai\vo3.wai