******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) TECHNOLOGY FOR COMMUNICATIONS ) INTERNATIONAL ) ) Request for Waiver of Sections 80.207 and ) 80.453 of the Commission's Rules ) ORDER Adopted: September 30, 1999 Released: October 1, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On December 24, 1997, Technology for Communications International (TCI) filed an application for authorization to operate a public coast station at Promontory, Utah, using high frequency (HF) public correspondence facsimile frequencies. Accompanying the application was a request for a waiver of Sections 80.207 and 80.453 of the Commission's Rules to permit TCI to use data and telemetry emissions, and to serve fixed and mobile transceivers on land in addition to maritime units. We conclude that the requested relief should be denied. II. BACKGROUND 2. Public coast stations are commercial mobile radio service (CMRS) providers that allow ships to send and receive messages and to interconnect with the public switched network. They may use very high frequency (VHF) band frequencies to serve a port or coastal area, or HF or lower band frequencies to serve vessels on the high seas, often hundreds or even thousands of miles from land. Some HF bands are unusable at certain times of the day or night due to varying atmospheric and solar conditions, so HF coast stations must obtain frequencies in several bands in order to provide communications services under constantly changing conditions. Maritime frequencies are allocated internationally by geographic region and type of communication in order to facilitate interoperable radio communications among vessels of all nations and stations on land worldwide. 3. TCI seeks to use seventy-six 3 KHz telegraphy-facsimile frequencies in the 4, 6, 8, 12, 16, 19, and 22 MHz bands. While TCI proposes to provide traditional facsimile service to maritime vessels, the proposed system's focus would be a nationwide tracking and messaging service for the commercial trucking industry. TCI estimates that 300,000 of the 48,000,000 commercial vehicles in the United States would use its proposed service. 4. TCI proposes to provide service to units on land under the conditions imposed by Section 80.123 of the Commission's Rules, which governs service to units on land by VHF public coast stations. Specifically, TCI proposes that its service to units on land would be provided on a secondary, non-interference basis to maritime services, and priority would be afforded to marine-originating communications. Each associated land station would be provided with a letter acknowledging that it may operate under the authority of the coast station's license, would be identified by the coast station's call sign followed by a unique alphanumeric identifier, would communicate only with the coast station, and would cease operation upon written notice by the Commission of harmful interference to marine communications. Transmitter power and antenna height of land stations would be limited to that permissible for ship stations, though TCI plans to use a much lower power level (one hundred watts rather than two kilowatts). 5. In addition, the system would use special technology to determine which frequency band had the best propagation between TCI's coast station and each region of the United States. The system also would regularly transmit the current frequency plan to each land mobile transceiver, which would then tune to the frequencies identified for the region in which it was located. TCI thus would know to what frequencies each transceiver was tuned at a particular time. Further, the system would be able to maintain a log of all transmissions, and to cause any transceiver to cease transmissions. III. DISCUSSION 6. To obtain a waiver of the Commission's Rules, a petitioner must demonstrate either (a) that grant of the waiver would be in the public interest and the underlying purpose of the rule(s) would be frustrated or not served by application of the rule to the present case; or (b) that, in view of unique or unusual factual circumstances, application of the rule(s) would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative. TCI submits that it has satisfied the first alternative standard. We disagree and our basis for this determination is set forth below. A. Public Interest 7. TCI argues that letting it serve land units on maritime HF frequencies is in the public interest for the same reasons that the Commission allows VHF public coast stations to provide service to units on land. First, TCI suggests that the Commission's goal in allowing VHF public coast stations to serve land units was to create additional competition among CMRS providers. However, when the Commission proposed permitting service to units on land, its primary goal was to assist and sustain stations providing maritime service by allowing them to utilize capacity not needed for maritime service to provide other types of services. The possibility that such flexibility might promote additional CMRS competition was but a subsidiary benefit, and the Commission did not contemplate such competition beyond coastal areas. The rule was not intended to stimulate the use of maritime frequencies chiefly for land mobile service. 8. Moreover, we believe that it is significant that the rule permitting service to units on land by maritime radio facilities applies only to VHF public coast stations. In this connection we note that the Commission initially declined to permit land mobile service on maritime frequencies generally due to concern about harmful interference to marine communications. In fact, only after eleven years of individual waivers resulted in no interference complaints did the Commission ultimately adopt Section 80.123. Because HF signals can propagate for thousands of miles (compared to twenty to thirty miles for VHF signals), we believe interference to international communications is a possibility associated with service to units on land using HF frequencies not presented by VHF land mobile service. Indeed, TCI's predicted service contour -- and its interference contour -- covers most of Canada and almost all of Mexico. In addition, the HF facsimile bands are shared between the maritime mobile service and the federal government, so we also are concerned that interference to Government operations must be avoided. Globe Wireless, which operates a worldwide network of HF public coast stations, contends that TCI's proposed operations would cause co-channel or adjacent channel interference to foreign stations operated by itself and other providers, and to military communications of the United States, Canada, and the Netherlands. TCI states that it lacks information regarding Government and foreign stations, and it consents to the substitution of alternate frequencies in the same bands to avoid any such problems. We find that the reasons underlying permitting land mobile service on VHF maritime frequencies are not present in the context of allowing such service on HF frequencies. We also find that TCI has failed to demonstrate that its proposed operations would not adversely affect other maritime operations, both domestic and international. 9. TCI also argues that its proposed service would fill a need, because nobody offers the trucking industry an economical, reliable, nationwide tracking and massaging service. Nextel Communications, Inc. (Nextel), a land mobile radio service provider, contends that it and many other providers offer services comparable to what TCI proposes. The American Mobile Telecommunications Association (AMTA), a land mobile radio service trade association, and SEA, Inc., a supplier of maritime HF equipment, agree. We also note that the Commission recently completed the competitive bidding and authorization process for licenses in the Location and Monitoring Service (LMS). LMS is used to locate vehicles or other objects throughout a wide geographic area. As a result, we conclude that TCI has not demonstrated that there are no existing service alternatives for the trucking industry. Consequently, we are not persuaded that this factor alone would justify a waiver under the circumstances presented here. 10. Finally, we note that the Commission has an open proceeding seeking to promote innovative telecommunications services, improve communications capabilities, and reduce regulatory burdens in the Maritime Services. Pending proposals in such proceeding include redistributing public coast spectrum to private coast stations and resolving mutually exclusive applications by competitive bidding procedures. TCI argues that these proposals do not relate to the spectrum at issue, because the sharing proposal relates only to medium frequency bands; and, because no mutually exclusive application was filed, no competitive bidding procedure is needed to resolve TCI's application. TCI recognizes, however, that granting its waiver request would establish a precedent that would apply to any similar request, in effect opening the HF maritime public correspondence to land mobile service by rule waiver, particularly given the lack of unique or unusual circumstances associated with TCI's proposal. Consequently, we agree with Nextel that granting the request while these proposals are pending would be premature. B. Underlying Purpose 11. The Maritime Services provide for the unique distress, operational, and personal communications needs of vessels at sea and on inland waterways. They provide a vital emergency radio link, similar to the terrestrial 911 system, to ensure safety of life and property in the marine environment. In addition to serving a critical safety function, maritime radio is used for commercial operational communications and general purpose communications. Such uses include ordering ships' stores, inquiring about berthing facilities, and changing schedules -- in short, providing a means of communication for the day-to-day activities of a multi-billion dollar industry. 12. MMR, a public coast station operator using HF and other frequencies, argues that HF telegraphy-facsimile frequencies are too scarce to be, in effect, reallocated for a land mobile radio service, because existing maritime stations will need increased capacity to keep pace with the rise in the use of electronic mail and other data transmissions. Globe Wireless agrees that these frequencies already are heavily used for the allocated purpose and should not be opened up to other uses at this time. TCI replies that granting the waiver would actually increase the overall capacity available to ship stations, by adding another station providing maritime service. It also states that no new station will begin operating unless it is permitted to serve land units, because the maritime market alone is not sufficient to justify the costs of constructing and operating a new HF network. SEA, Inc. disagrees with this conclusion, and adverts to the fact that the Commission recently authorized a new public coast station providing data transmission services to vessels at sea. We conclude that TCI has not established that application of the maritime rules in this case would frustrate or not serve their underlying purpose. IV. CONCLUSION 13. We find that TCI has not met the requirements for obtaining a waiver of the Commission's Rules. Specifically, it has not shown that granting the waiver would be in the public interest, nor has it shown that application of the rules in this case would frustrate or not serve the underlying purpose of the subject Part 80 Rules. V. ORDERING CLAUSES 14. IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 1.925 of the Commission's Rules, 47 C.F.R.  1.925, the waiver request and application filed by Technology for Communications International on December 24, 1997 ARE DENIED. 15. 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