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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of: ) ) TELETRAC LICENSE, INC. ) ) Petition for Clarification or, in the Alternative,) Waiver of Section 90.363(a) of the Commission's) Rules ) ORDER Adopted: December 18, 1997 Released: December 18, 1997 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The Wireless Telecommunications Bureau ("Bureau") hereby conditionally grants the above styled petition, permitting Teletrac License, Inc. ("Teletrac") to apply for authorizations to operate internal "fill-in" transmitting sites within the existing coverage areas of its grandfathered Automatic Vehicle Monitoring ("AVM") systems. This action will allow Teletrac to provide better service in the areas its grandfathered systems already cover, but will not extend the overall geographical coverage of those systems. The Bureau will continue to accept such fill-in applications until the Commission issues a Public Notice announcing the auction date and short-form application filing deadline for geographic area licenses for multilateration systems in the Location and Monitoring Service (LMS). Authorizations for fill-in transmitters will be granted only on the condition that Teletrac conducts cooperative testing in order to minimize unacceptable interference to systems of Part 15 devices. II. BACKGROUND 2. On November 20, 1996, Teletrac filed the captioned petition requesting a clarification or waiver of Section 90.363(a) of the Commission's rules to allow it to construct and operate internal (or "fill-in") transmitters within the existing coverage areas of its grandfathered AVM systems. Teletrac contends that fill-in transmitters are needed to provide reliable service to some areas within the overall coverage of its grandfathered locations where, because of terrain and other factors, mobile units do not receive sufficiently strong signals from the existing transmitters. Teletrac indicates that these areas of weak reception (and the consequent need for fill-in transmitters) became apparent only after construction and testing of its grandfathered AVM systems. Teletrac states that the supplemental fill-in transmitters will not expand the overall geographic coverage of its grandfathered systems, and thus will not affect future multilateration LMS licensees. 3. On January 15, 1997, the Commission gave public notice of the Teletrac petition, providing opportunity for comment by interested parties. In response to this notice, oppositions were filed by Comtrak, Itron, Inc. and the Part 15 Coalition, and comments were filed by Metricom, Inc. Teletrac submitted a reply to these filings on February 10, 1997. On February 24, 1997, the Harris Corporation filed reply comments. Teletrac submitted a reply to the Harris filing on March 4, 1997. 4. On May 8, 1997, Teletrac made an ex-parte presentation to Commercial Wireless Division ("Division") staff during which it presented an engineering report addressing the matter of coverage of Teletrac systems. On June 5, 1997, Teletrac filed location and radial effective antenna height and transmitting power data pertaining to all (133) of the existing sites in its grandfathered AVM systems. On June 17, 1997, Teletrac filed a supplemental engineering statement to the June 5 filing, noting that the Commission's mathematical formula method for determining the cellular service area boundaries appears also to provide a good representation of Teletrac system coverage. II. OPPOSITIONS, COMMENTS AND REPLIES 5. Comtrak, a manufacturer of LMS equipment and a prospective applicant for geographic area multilateration LMS licenses, asserts that the Commission's past LMS decisions indicate that the Commission is aware that grandfathered systems might not be capable of providing ideal coverage in some areas. It submits that, to mitigate this concern, the Commission adopted a rule permitting licensees of grandfathered AVM systems to relocate transmitter sites by as much as two kilometers. Comtrak contends that if the Commission had intended to allow licensees of grandfathered AVM systems to improve or optimize these systems, it would not have limited transmitter relocations to two kilometers. In addition, Comtrak asserts that a grant of Teletrac's waiver request would give Teletrac a competitive advantage over other LMS licensees. Comtrak notes that, with no standard for defining LMS service areas, it would not be possible to determine whether or not Teletrac was using the supplemental transmitters to expand its overall coverage. If the supplemental transmitters did in fact increase the overall geographic coverage of Teletrac's grandfathered AVM systems, Comtrak indicates that could decrease the values of multilateration LMS licenses for the surrounding geographic areas, which will be subject to auctions in the event mutually exclusive applications are filed for those areas. Comtrak also argues that the issue raised by Teletrac's waiver request is already pending before the Commission pursuant to Teletrac's petition for reconsideration and therefore the waiver should not be granted. 6. Likewise, the Part 15 Coalition submits that Teletrac's waiver request mirrors issues raised in Teletrac's petition for reconsideration of the LMS Order on Reconsideration. The Part 15 Coalition also notes that Teletrac has not specified how many supplemental transmitters it would need, nor where they would be located. It further contends that the addition of a significant number of transmitters will increase the noise floor of the 902-928 MHz band and would upset the balance struck by the Commission among the interests of existing and prospective users of the band. Like Comtrak, it asserts that grant of the waiver would give Teletrac an unfair advantage over other LMS operators. Itron, an operator of Part 15 devices argues that grant of the waiver request would increase interference. It submits that Teletrac is attempting to use the waiver process to redesign its grandfathered AVM systems. 7. Metricom, also an operator of systems of Part 15 devices, does not formally oppose Teletrac's waiver request. However, it notes that each multilateration LMS geographic area licensee will be required to conduct field testing to demonstrate that its system does not cause unacceptable interference to Part 15 devices. It submits that any supplemental transmitters requested by Teletrac should also be subject to such testing. Metricom also notes that Teletrac filed a petition for reconsideration of the LMS Order on Reconsideration that seeks the same relief sought under its current waiver request (i.e., the ability to construct and operate "fill-in" sites). It contends that because the waiver request is also the subject of a petition for reconsideration, the Commission cannot grant the waiver without making it subject to the final decision of the Commission on reconsideration. 8. In reply, Teletrac contends that coverage gaps undermine the ability of AVM systems to reliably track vehicles. Teletrac argues that, because the "interference contours" of its system would not be enlarged thereby, a grant of the requested waiver would neither contravene the Commission's plans to issue geographic area licenses for LMS multilateration systems nor harm other users. Teletrac asserts that because the fill-in transmitters will be within areas already covered by the Teletrac signal, there will be no diminution in the areas available for geographic area licenses, contrary to the assertions by Itron and The Part 15 Coalition. Further, Teletrac argues that grant of the waiver would not increase the potential for interference to Part 15 devices. It submits that the interference potential from fill-in sites will be no different from that which will exist once the geographic area licenses are issued. In response to the arguments of Itron and Comtrak that grant of the waiver would give Teletrac a competitive advantage vis-a-vis prospective geographic area licensees, Teletrac again emphasizes that the waiver it seeks would not allow it to expand its systems. Teletrac further submits that its current customers include law enforcement entities, ambulance service providers and school bus companies, and that permitting it to construct and operate fill-in sites would have public safety benefits. 9. Teletrac argues that allowing it to fill in coverage gaps will not diminish the value of geographic area licenses. It asserts that if a party other than Teletrac is ultimately licensed for a geographic area that includes a Teletrac grandfathered system, the existence of fill-in sites will not affect the ability of that licensee to operate a system. With respect to Metricom's comments, Teletrac agrees that the testing requirements should apply to the fill-in transmitters. It also submits that it was appropriate for Teletrac to file a waiver regardless of the fact that it requested a blanket rule for all grandfathered AVM systems earlier in the LMS proceeding. 10. Reply comments were also filed by Harris Corporation, a prospective applicant for multilateration LMS geographic area licenses. Harris agrees with Comtrak that Teletrac has not justified a waiver of Section 90.363(a). It submits that the two-kilometer relocation limitation was intended to enable licensees of grandfathered AVM systems to improve coverage in their service areas without compromising the availability of geographic areas for future licensing. Harris further contends that grant of the waiver request would give Teletrac an unfair competitive advantage over other LMS licensees because Teletrac would be poised to immediately expand the coverage areas of its new transmitters, while other operators will have to wait until after the geographic area licenses are issued to begin construction. Harris also agrees with Comtrak that there is no way to assess whether Teletrac will limit the signal coverage as promised because there is no technical standard for defining LMS coverage areas. Further, Harris contends that a Commission grant of the waiver would enable Teletrac to increase the density of its infrastructure so that it could provide in-building operation. 11. In its separate reply to the Harris filing, Teletrac reiterates its argument that grant of the waiver will not diminish adjacent licensable geographic area if someone other than Teletrac ultimately obtains that license, regardless of whether or not that other entity operates a system that is compatible with Teletrac's facilities. Teletrac also asserts that it does not contemplate offering in-building service. III. DISCUSSION 12. Section 90.151 of the Commission's rules sets forth requirements for a request to waive a provision of Part 90 of the Commission's Rules. This rule requires that requests for waiver of rules show that unique circumstances are involved and that there is no reasonable alternative solution within existing rules. When deciding whether grant of a particular waiver request is justified, the Commission looks to two criteria; namely that either (1) the underlying purpose of the rule would not be served or would be frustrated by its application to the instant case, and that a grant of the requested waiver would be in the public interest, or (2) in view of unique or unusual factual circumstances of the instant case, application of the rule would be inequitable, unduly burdensome or contrary to the public interest, and that the applicant has no reasonable alternative. 13. We find that these criteria are met with regard to the Teletrac request. First, we note that it appears from Commission records that Teletrac is the only entity that satisfied the conditions for grandfathering of AVM systems -- i.e., Teletrac is the only grandfathered AVM system licensee that had its facilities modified, constructed and operational by January 1, 1997. Furthermore, the Commission's AVM grandfathering rule does not address or provide for addition of fill-in transmitters. Therefore, Teletrac has no alternative available to it under existing rules. 14. By adopting Section 90.363 providing for the operation of licensed existing or unconstructed AVM systems, the Commission's intent was to permit licensees with substantial investment in the development of AVM technology a chance to complete and operate viable multilateration LMS systems under the new band plan. When the grandfathering rule was adopted, various different technologies had been proposed for multilateration LMS systems, which would have had differing requirements for coverage. No coverage data or maps from commercially operating systems using these technologies were available to the Commission at that time. Even now, it would be difficult to fashion a universally applicable rule allowing fill-in transmitters based on coverage calculations that would properly accommodate any technology that might be used. Although there is currently no provision in the rule allowing internal fill-in transmitters, it is not because the Commission intended that licensees of grandfathered AVM systems not be allowed to optimize or improve their facilities in order to provide a quality service to customers. It merely means that adopting a final rule to allow addition of fill-in transmitters, based on the circumstances and available information at that time, would have been inappropriate. 15. The question of whether to modify the grandfathering rule to allow additional transmitters within 30 miles of the existing sites of grandfathered AVM systems using wideband forward links was raised on reconsideration. However, that issue concerned comparability of coverage between systems that use wideband forward links and those which use narrowband forward links (such as Teletrac's system). It is a separate and distinct issue from that raised by Teletrac in this waiver request. Teletrac also requested fill-in authority as part of its petition for reconsideration of the LMS Order on Reconsideration. However, the Commission has since issued an order on reconsideration resolving that and several other LMS issues. In that order, the Commission decided that requests to add fill-in sites to grandfathered AVM systems should be handled on a case-by-case basis. That is what we are doing here. 16. Teletrac provided an engineering showing containing coverage data based on commercial operations in several cities. We find that this data supports the contention that coverage in the Teletrac system is comparable to that for equivalent cellular facilities. Because the method for determining coverage in cellular systems is already established by rule, is unambiguous, and is widely-used for regulatory purposes by the cellular industry, we find that its employment here will allow Teletrac to solidify its coverage by adding transmitters within its grandfathered AVM systems while ensuring that the overall coverage area is not increased by such additions. We find this to be a satisfactory response to the concerns expressed by Comtrak and Harris that allowing fill-in sites might increase overall coverage of the grandfathered AVM systems and decrease the value of the geographic area license. 17. The Part 15 Coalition and Itron observe that additional transmitters could increase both the noise floor and the interference potential to Part 15 devices in the 902-928 MHz band. However, we note that this situation is not different from that which will exist once geographic area multilateration LMS licenses are issued. We believe therefore that the interference testing condition that will attach to the geographic area licenses should also apply to Teletrac's fill-in transmitters. Accordingly, we will grant authority for fill-in transmitters subject to the condition that any unacceptable interference to systems of Part 15 devices is minimized, as determined by cooperative testing. 18. We disagree with Comtrak and other commenters that allowing Teletrac to install fill-in transmitters will provide it with an unfair competitive advantage over the eventual geographic area licensees. In fact, allowing Teletrac to install fill-in transmitters is consistent with the ultimate competitive environment the Commission seeks to establish because, upon licensing, geographic area licensees will be immediately able to place transmitter sites anywhere in their geographic areas, subject to cooperative sharing arrangements with grandfathered AVM systems. 19. Upon release of this Order, the Bureau will begin accepting applications from Teletrac for fill-in transmitters within their grandfathered AVM systems. As a condition of this Order, Teletrac is required to submit with its applications a FCC Form 600, Schedule C for each fill-in site applied for, completed in the same manner as it did for its existing grandfathered AVM sites. This will permit verification that coverage is not being expanded. Additionally, Teletrac must submit with each application a certification that (a) the proposed fill-in transmitter is necessary to fill in an actual gap in coverage in the grandfathered system, and (b) the proposed combination of antenna height and transmitting power is the minimum necessary to provide coverage in the gap. IV. ORDERING CLAUSES 20. Accordingly, IT IS ORDERED that the petition filed by Teletrac License, Inc. is GRANTED to the extent detailed herein, effective on the release date of this Order. Each authorization granted for one or more fill-in transmitters shall contain the following two conditions: (1) Operation of the additional transmitters authorized herein shall not increase the coverage of this grandfathered AVM system. (2) Upon commencement of operation, any unacceptable interference to systems of Part 15 devices must be minimized, as determined by cooperative testing. No fill-in applications will be accepted after the date when the Commission releases a Public Notice announcing the auction date and short-form application filing deadline for geographic area licenses for multilateration LMS systems. 21. This action is taken pursuant to authority delegated in Sections 0.241 and 0.331 of the Commission's Rules, 47 C.F.R.  0.241 and 0.331. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Chief, Wireless Telecommunications Bureau Federal Communications Commission