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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 Request of Paging Network of ) Michigan, Inc. and/or Paging ) File Nos. 657785 Network of Cleveland, Inc. for ) 657786 Regional Exclusivity on the ) PCP Frequency 929.7375 MHz ) In and Around Michigan ) ORDER Adopted: October 15, 1999 Released: October 15, 1999 By the Deputy Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. On April 13, 1994, the Detroit Newspaper Agency (Agency) submitted a letter to the Commercial Wireless Division's Land Mobile Branch (April 13 Letter Request), requesting that the Commission investigate Paging Network of Cleveland, Inc.'s (PageNet) request for "grandfathered" regional exclusivity with respect to frequency 929.7375 MHz. Specifically, the Agency alleges that PageNet did not meet the requirements for a grandfathered regional system, which would include the captioned applications for two sites in the state of Michigan. PageNet filed a response to the Agency's letter on May 6, 1994 (Response), and the Agency replied on May 25, 1994 (Reply). For the reasons discussed below, we conclude that, while PageNet met the requirements for regional exclusivity, it did not meet the requirements for "grandfathered" regional exclusivity. 2. On November 17, 1993, the Commission adopted rules that paging licensees in the 929 MHz band were required to meet to qualify for local, regional and nationwide exclusivity. Under those rules, a regional system was required to consist of 70 or more transmitters located in no more than 12 adjacent states in the continental United States. In the PCP Exclusivity Order, the Commission determined that all incumbent licensees would be grandfathered with respect to their existing systems, and those who met the Commission's criteria would be granted exclusivity. Specifically, paging licensees were able to obtain grandfathered exclusivity for stations that had been authorized on or prior to October 14, 1993, or for stations that were subsequently authorized based on applications filed on or prior to October 14, 1993, by showing that the stations constituted part of a paging system that met the exclusivity criteria. Applications filed for new licenses after October 14, 1993, would be accepted only if the resulting system qualified for exclusivity under the Commission's rules and did not violate minimum separation requirements for other systems that had previously qualified for exclusivity on the same frequency. 3. PageNet claims that, on July 14, 1993, it sent two applications for nine sites in Michigan to the National Association of Business and Educational Radio, Inc. (NABER) for coordination. Those applications were filed pursuant to the rules in effect prior to the PCP Exclusivity Order. PageNet further states that the applications originally sought authorizations on 929.8125 MHz, but that NABER substituted 929.7375 MHz and submitted the applications to the Commission on October 6, 1993. The applications were assigned file numbers 635862 and 635863. Upon NABER's request, however, the Commission returned the applications to NABER on November 23, 1993. PageNet states that NABER's return form indicated that the antenna information for one site did not correspond to the Commission's data files for that location. Relying in part on these two applications, PageNet submitted a request for exclusivity on January 24, 1994, for 929.7375 MHz in a six state region, including Michigan. On February 8, 1994, NABER resubmitted the returned applications to the Commission and the applications were assigned the captioned file numbers, 657785 and 657786. 4. Under the rules in effect prior to the PCP Exclusivity Order, 929-930 MHz frequencies were divided into two pools. Frequencies listed in Pool 1 were available for shared use by non-commercial carriers. Frequencies listed in Pool 2 were available for commercial use. For locations above Line A, however, five of the frequencies listed in Pool 2, including 929.7375 MHz, were available only for non-commercial use. The Agency alleges in its April 13 Letter that PageNet's original applications were defective because, at the time of filing, the frequency 929.7375 MHz above Line A was restricted to non-commercial use. We concur with the Agency that PageNet's original applications (File Nos. 635863 and 635862) failed to comply with the Commission's rules applicable to the use of that frequency at that time because PageNet is a commercial licensee. As PageNet acknowledges, NABER resubmitted the applications after the Commission changed its rules regarding 929-930 MHz applications filed for locations above Line A. Specifically, in the PCP Exclusivity Order, the Commission amended its rules to allow conditional operation of 929-930 MHz stations above Line A, provided that all other requirements of the Commission's rules were met. These new rules permitted PageNet to operate on 929.7375 MHz on a commercial basis above Line A. Because the applications were filed after October 14, 1993, the Branch processed PageNet's captioned applications on a first-come, first-served basis in accordance with the rules set forth in the Commission's PCP Exclusivity Order. Moreover, we are not persuaded by PageNet's arguments that it should not be held responsible for the assignment of 929.7375 MHz to its applications because NABER, not PageNet, substituted the frequency originally requested in PageNet's applications with frequency 929.7375 MHz. PageNet apparently concurred with that substitution when it filed its exclusivity request on January 24, 1994, for the 929.7375 MHz frequency. Accordingly, we find that PageNet's exclusivity request for 929.7375 MHz in the six state region meets our requirements for regional exclusivity, but not grandfathered regional exclusivity. 5. Finally, based upon seven transmitters licensed to the Agency on the frequency 929.7375 MHz in the Detroit area prior to October 14, 1993, the Agency qualified for grandfathered local exclusivity rights. As the Commission explained in the PCP Exclusivity Order, "a non-grandfathered nationwide licensee may not encroach on an area where another licensee has previously qualified for local or regional exclusivity." This prohibition applies to any non-grandfathered licensee. We therefore find that the Agency's local system is entitled to protection from interference by PageNet's regional system in the state of Michigan. 6. Accordingly, IT IS ORDERED that, pursuant to the authority delegated by section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i), and section 0.331 of the Commission's rules, 47 C.F.R.  0.331, the request filed by the Detroit Newspaper Agency on April 13, 1994, to find that Paging Network of Cleveland, Inc. does not have grandfathered regional exclusivity in the six state region IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Cynthia S. Thomas Deputy Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau