******************************************************** 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. In the matter of ) ) Greenline Partners, Inc. ) File Nos. 688143-51 ) 688157-62 Request for Waiver of ) 688180-82 Section 90.495(a)(3) ) 688214-15 Relating to Qualification Requirements for ) Nationwide Exclusivity for 929 MHz ) Paging Systems ) ORDER Adopted: October 8, 1999 Released: October 8, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. In this order, we address a request for a waiver, filed on April 21, 1994 (Waiver Request), by Greenline Partners, Inc. (Greenline), a 929 MHz paging operator. Greenline seeks a waiver of section 90.495(a)(3) of the Commission's rules, which required a nationwide system to consist of 300 transmitters. Greenline is seeking this waiver to obtain nationwide exclusivity on frequency 929.6875 MHz. For the reasons discussed below, we deny the Waiver Request. 2. On November 17, 1993, the Commission adopted rules that paging licensees in the 929 MHz band were required to meet in order to qualify for nationwide exclusivity. Under section 90.495(a)(3), a 929 MHz nationwide system must consist of 300 or more transmitters, and provide service to at least 50 markets listed in Section 90.741, including 25 of the top 50 markets and two markets in each of seven regional bell operating company regions. 3. On April 21, 1994, Greenline requested a temporary waiver of the "300 transmitter rule" so that it can develop a system with nationwide exclusivity on the 929.6875 MHz band. Beepage, Inc. (Beepage) and Radiofone, Inc. (Radiofone) filed oppositions to the Waiver Request. On September 16, 1994, Greenline filed an Emergency Motion for Stay and Objection to Pending Applications (Motion for Stay), requesting that the Private Radio Bureau set aside and deny any PCP applications that the National Association of Business and Education Radio (NABER) may have already coordinated on the 929.6875 MHz channel subsequent to Greenline's filing of its Waiver Request. Following the filing of the Waiver Request, Greenline filed over 100 applications on October 12, 1994, for transmitter sites on the 929.6875 MHz frequency. 4. Under Section 1.925 of the Commission's rules, the Commission may grant a request for waiver if it is shown that (i) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (ii) in view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. 5. We will not grant Greenline a waiver in this case because we find that it fails to satisfy the waiver criteria. Greenline states that a waiver is necessary because it intends to use a nationwide system to distribute LabAlert, a service that would provide time-critical medical information to health care providers. Greenline argues that the service it intends to provide is a "unique system of data delivery and retrieval." Greenline fails to support its claim that LabAlert is a unique system, however, because its assertions are conclusory and largely unsubstantiated. Furthermore, other parties to this proceeding provide evidence that there are reasonable alternatives to the service that Greenline proposes to provide over its proposed nationwide system. 6. Greenline also argues that a waiver of the "300 transmitter rule" is necessary because it "simply cannot install its transmitters at just any location in a given community; it must first determine where the health care provider customer need a transmitter most." Greenline fails, however, to adequately support its claim that the circumstances governing its transmitter siting warrant a waiver. As noted by Beepage in its Opposition, in the period between August, 1992 and January, 1993, Greenline applied and was subsequently authorized for approximately 75 individual transmitter sites in a variety of markets. In addition, Greenline states that it is licensed for approximately 150 sites in the top 34 markets. In light of its success in entering into agreements with such a large number of medical facilities during that two-year period, it is unclear why Greenline was unable to fulfill the requirements of this rule. We also note that many applicants are faced with some type of "business" issue when seeking sites for transmitter placement and that Greenline is far from unique in sharing these concerns. We, therefore, deny Greenline's Waiver Request and dismiss, as defective, all of Greenline's pending applications for transmitter sites on the 929.6875 MHz frequency. 7. In its Motion for Stay, Greenline requested that the Commission set aside and deny any PCP applications that NABER may have already coordinated on the 929.6875 MHz frequency subsequent to the filing of Greenline's Waiver Request and that NABER be ordered to cease any future coordinating of PCP applications on the 929.6875 MHz frequency. In a series of letter decisions issued after Greenline filed its Motion for Stay, the Land Mobile Branch of the Private Radio Bureau dismissed all applications forwarded by NABER which sought authorizations for transmitter sites on the 929.6875 MHz frequency because they failed to meet the Commission's frequency coordination requirements. Accordingly, Greenline's Motion for stay is dismissed as moot. 8. Accordingly, IT IS ORDERED that, pursuant to authority delegated by section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i), and by sections 0.331 and 1.925 of the Commission's rules, 47 C.F.R.  0.331, 1.925, the Request for Rule Waiver filed by Greenline Partners, Inc. on April 21, 1994, is DENIED. 9. IT IS FURTHER ORDERED that, pursuant to authority delegated by section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i), and by sections 0.331, 1.925(c), and 1.934(a) of the Commission's rules, 47 C.F.R.  0.331, 1.925(c), 1.934(a), the associated applications filed of Greenline Partners, Inc. ARE DISMISSED. 10. IT IS FURTHER ORDERED that, pursuant to authority delegated by section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i), and by section 0.331 of the Commission's rules, 47 C.F.R.  0.331, the Emergency Motion for Stay and Objection to Pending Applications filed by Greenline Partners, Inc. on September 16, 1994, is DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau