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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 ) ) BLACK DIAMOND ASPHALT, INC. ) ) for Special Temporary Authority to operate) under Call Sign WRV898 to operate in the ) 450 - 470 MHz band ) ORDER ON RECONSIDERATION By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: Adopted: August 30, 1999 Released: August 31, 1999 I. Introduction 1. In this Order on Reconsideration, we consider the request for reconsideration of Black Diamond Asphalt, Inc. (Black Diamond) for reinstatement of Special Temporary Authority (STA) to operate under Call Sign WRV898. Black Diamond seeks to operate on Channel 460.725 MHz to transmit land mobile communications in support of its operations involving the transportation of construction materials. For the reasons indicated below, we deny Black Diamond's request for reconsideration. II. Background 2. Black Diamond asserts that its license for frequency 460.725 MHz in Modesto California expired when it failed to timely renew the license. Black Diamond further asserts that the Personal Communications Industry Association (PCIA) refuses to provide Black Diamond with a frequency coordination recommendation for frequency 460.725 MHz in Modesto, California. Consequently, on July 28, 1998, Black Diamond requested an STA to operate on the channel pending Commission consideration of its application to restore its regular license. Currently, no application for a permanent authorization for Channel 460.725 MHz in Modesto, California from Black Diamond is on file with the Commission. On July 30, 1998, the Licensing and Technical Analysis Branch (Branch) conditionally granted the STA with an expiration date of January 30, 1999. The Branch placed the following seven conditions on the STA: (a) the STA is authorized on a secondary non-interference basis; (b) if the station is not constructed in accordance with original deadlines or the Commission is unable to authorize this station at the STA location on a permanent basis, any and all authorizations will be deemed to have cancelled automatically; (c) the applicant will be billed for the request; (d) if the station is not constructed in accordance with original deadlines or the Commission is unable to authorize this station at the STA location on a permanent basis, any and all authorizations will be deemed to have cancelled automatically; (e) the Commission reserves the right to terminate this authority prior to expiration without further notice or hearing upon notification of actual interference to authorized co-channel or adjacent-channel users of the above mentioned frequencies; (f) the STA is granted consistent with [Section] 90.145(d). Any request for extension will be dependent upon the receipt of an application for regular authorization or a demonstration of extraordinary circumstances; and (g) submission of the STA request bearing the original signature of the applicant. 3. On August 6, 1998, the Branch granted an application filed by Columbia Communications, Inc. (Columbia) seeking modification of its authorized facilities to operate on Channel 460.725 under Call Sign WNEC557 at Mt. Lewis, Miwuk Village, Toulumne, California. Additionally, the Branch granted a renewal application for Call Sign WNPH394 to Columbia to use channel 460.725 in Mt. Lewis, Miwuk Village, Toulumne, California. 4. On September 9, 1998, Columbia submitted a letter notifying the Branch of interference to its system from Black Diamond's operations. Columbia requested that the Branch rescind the STA. On September 9, 1998, the Branch's Technical Analysis Section rescinded the STA issued to Black Diamond on July 30, 1998 under Call Sign WRV898 in response to the September 9, 1998 letter received from Columbia. On September 24, 1998, Black Diamond requested reconsideration of the rescission of its STA. 5. Black Diamond requests reconsideration of the termination of its STA for three reasons. First, Black Diamond asserts that Channel 460.725 is a shared channel and is not available for use on an exclusive basis. Second, Black Diamond argues that Columbia is authorized to operate in excess of the 20 watt maximum contained in Section 90.35(c)(48) of the Commission's Rules with an output power of 40 watts. Finally, Black Diamond asserts that Columbia has alternative frequencies that it may use because it is also authorized to use four other frequencies, namely, 460.825, 460.875, 461.625, 461.700, under its license for Station WNEC557. Consequently, Black Diamond asserts that it should not be denied the use of frequency 460.725 MHz III. Discussion 6. The Branch authorized Black Diamond, under STA, to operate on Channel 460.725 MHz as long as Black Diamond satisfied seven conditions. In P&R Temmer v. FCC, the D.C. Circuit held that "a licensee whose right to the use of a frequency is contingent on satisfying specified conditions has no right to use of the frequency when the conditions are not met". In addition, we note that acceptance of an authorization, whether permanent or temporary, constitutes accession to all such conditions. Thus, generally, if a holder of an authorization has failed to meet any of the conditions of its authorization, the holder must cease its use of the frequency. 7. The first condition on the STA authorized Black Diamond to operate on channel 460.725 MHz on a secondary non-interference basis. Section 90.7 of the Commission's Rules defines secondary operation as radio communications which may not cause interference to operations authorized on a primary basis and which are not protected from interference from primary operations. The fifth condition on the STA authorizes the Commission to terminate the STA prior to expiration without further notice or hearing upon notification of actual interference to authorized co-channel or adjacent-channel users of frequency 460.725 MHz. On September 9, 1998, the Branch received a letter from Columbia indicating that actual interference was being caused to its licensed facilities by Black Diamond's operations on frequency 460.725 MHz. Consequently, pursuant to the express language of the first and fifth conditions on Black Diamond's STA, the Branch terminated the STA and required Black Diamond to cease all operations immediately. Thus, we believe that the Branch's actions was both warranted and proper under the circumstances. 8. However, our review of the objections raised by Black Diamond to the termination of its STA requires further analysis of the basis for the conditions that were placed on Black Diamond's STA. First, the Industrial/Business Pool Frequency Table in Section 90.35(b)(3) of the Commission's Rules indicates the limitations that are placed upon the frequencies available for assignment to Industrial/Business Pool stations. The following limitations relevant to this proceeding are placed on frequency 460.725 MHz: operation is limited to a maximum output power of 20 watts and the frequency may be assigned to fixed stations in the Industrial/Business Pool in accordance with Section 90.261 of the Commission's Rules. After review of our licensing database, it appears that Station WNEC557 was authorized to operate at 40 watts in violation of section 90.35(c)(48) of the Commission's Rules. Accordingly, concurrently with the release of this Order, we are releasing an Order of Modification, in accordance with Section 316 of the Communications Act of 1934, as amended, concerning Columbia's authorization for Station WNEC557. 9. Second, we agree with Black Diamond that Channel 460.725 MHz is a shared frequency and that there is no regulatory basis under which Columbia may claim exclusive use of Channel 460.725 MHz. Section 90.173(a) of the Commission's Rules states that except as otherwise specifically provided in this part, frequencies assigned to land mobile stations are available on a shared basis only and will not be assigned for the exclusive use of any licensee. Thus, we believe that Columbia cannot object to interference from a properly licensed station on frequency 460.725 MHz. However, in this instance, Black Diamond is not a Commission licensee and does not have an application pending with the Commission. 10. Although we agree that upon review of Black Diamond's petition that Columbia may not claim exclusive use of frequency 460.7250 MHz, we do not agree that Columbia may not request interference-free use with regards to an entity who is not a permanent licensee. We note Black Diamond's assertion that it could not receive a frequency coordination recommendation from PCIA in order to file its application for a permanent authorization. However, Black Diamond possesses other options to obtain a permanent authorization for frequency 460.725 MHz. Thus far, Black Diamond has not pursued such options and thus we cannot take any further action on this matter at this time. Finally, we find that Black Diamond's speculation as to the number of alternative frequencies that Columbia has available to it, without more, is not a sufficient reason to reinstate Black Diamond's STA. IV. Ordering Clauses 11. Accordingly, IT IS ORDERED, pursuant to Section 4(i), 309(f) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(f), 405 and Sections 1.106, 1.931, 2.105 and 90.7 of the Commission's Rules, 47 C.F.R.  1.106, 1.931, 2.105, 90.7, the request for reconsideration filed by Black Diamond Asphalt, Inc. on September 24, 1998 to reinstate its Special Temporary Authority IS DENIED. 12. This action is taken under delegated authority pursuant to 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