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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 Application of ) ) LONG ISLAND LIGHTING COMPANY ) ) File No. 587509 Licensee of Industrial/Land Transportation ) Trunked System Call Sign WPCB998, ) Suffolk County, New York ) MEMORANDUM OPINION AND ORDER Adopted: July 1, 1999 Released: July 27, 1999 By the Commission: I. INTRODUCTION 1. On January 6, 1994, Friends Irrigation Systems, Inc., Newborn Construction, Inc., Mohawk Milling & Sweeping Corp., G.S. Energy Corp. d/b/a Faultless, Mayfair Power Systems, Inc., Tri Weld Industries, Inc., Antorino Sewer & Drain, Inc. and Local Cesspool, Sewer, & Drain (collectively, "the Applicants"), by their attorneys, filed an Application for Review of the former Private Radio Bureau's ("Bureau") grant of a license for Station WPCB998 to Long Island Lighting Company (LILCO). The Applicants seek to reverse the decision of the Land Mobile Branch of the Bureau's Licensing Division denying their Petition for Reconsideration of the grant of a license to LILCO for a "slow-growth" trunked 900 MHz Industrial Land Transportation system. The Application for Review is denied for the reasons set forth herein. II. BACKGROUND 2. LILCO is a public utility company that provides electric utility services in the Long Island, New York area. LILCO's service area spans several counties and includes portions of the densely populated New York metropolitan area as well as rural areas of eastern Long Island. On May 15, 1992, LILCO filed an application seeking an additional eight trunked channels in the 900 MHz Industrial/Land Transportation Category. LILCO proposed a system modification which would add several control points (fixed dispatch centers), up to 800 mobile transceivers (to be installed in LILCO's service vehicles), and base station transmitters (to be built at several tower sites). Before filing the application, LILCO subjected its proposal to the required frequency coordination process, which for private land mobile radio (PLMR) systems involves selecting a frequency that will most effectively meet the applicant's needs while minimizing interference to licensees already using that frequency. 3. The Applicants were collectively licensed to operate on the eight channels for which LILCO applied. On July 8, 1992, they filed a petition objecting to LILCO's application on the grounds that the application was not coordinated in compliance with Section 90.621(c) of the Commission's Rules. Section 90.621(c) of the Rules required frequency coordinators to attempt to provide a 40 dBę contour and to limit co- channel interference levels to 30 dBę over the applicant's requested service area. The Applicants argued that one of LILCO's proposed sites, Brentwood, would not meet this criterion. 4. While petitions to deny do not lie against PLMR applications, the Bureau, on its own motion, considered the petition as an informal request for Commission action and associated it with LILCO's application. Thereafter, as part of its determination whether a grant of LILCO's application would serve the public interest, the Bureau considered the Applicants' assertions that LILCO's application did not meet the Commission's Rules. Further, the Bureau returned the application to LILCO on November 24, 1992, with a request for additional information related to the concerns raised by the Applicants. In response to this informational request, on January 12, 1993, LILCO returned the application to the Bureau with additional engineering information, including a diagram describing the system design. 5. Based on the record associated with LILCO's application, which included the Applicants' assertions, the frequency coordinator's advisory recommendation, and the additional information submitted by LILCO, the Bureau determined that LILCO's proposed operation complied with the Commission's Rules. As a result, the Bureau granted LILCO's application on April 23, 1993, upon a determination that the grant would serve the public interest. 6. On May 21, 1993, the Applicants filed a petition for reconsideration. The Applicants raised several arguments on reconsideration. First, they asserted that LILCO's response to the Bureau's request for additional information was untimely. Second, they argued that the Bureau and LILCO violated the ex parte rules. Third, they asserted that LILCO should have had the burden of proof regarding the predicted contours pursuant to Section 556(d) of the Administrative Procedure Act (APA). Fourth, they argued that the Bureau failed to require the applicant to utilize a directional height above average terrain (DHAAT) analysis. Finally, the Applicants argued that the Bureau should have denied the applicant's system design. On December 9, 1993, the Bureau denied the Petition for Reconsideration, stating that the Applicants' filings were appropriately treated as informal objections, that the Applicants failed to provide technical evidence that LILCO's proposed system would pose a threat of harmful interference, that the height above average terrain analysis of the predicted contours was satisfactory as of the filing of the application, and that the DHAAT analysis was not required for use of Industrial Category frequencies in the 900 MHz band. 7. In their Application for Review, the Applicants contend that LILCO and the Bureau violated the ex parte rules by treating their "Petition to Dismiss or Deny" as an informal objection for purposes of Sections 1.1202 and 1.1204 of the Commission's Rules. They also contend that the 40 dBę/30 dBę predicted contours for the signal strengths of the proposed stations impermissibly overlap and that the engineering design of the system was irrational and violative of the Commission's Rules. They further contend that the Bureau failed to designate which of LILCO's stations was to be considered primary. Finally, they argue that, under Section 556 of the APA, the Bureau should have imposed the burden of proof on LILCO rather than on the Applicants. III. DISCUSSION 8. To prevail on an application for review, the petitioning party must demonstrate that the action taken pursuant to delegated authority (a) is in conflict with statute, regulation, case precedent or established Commission policy; (b) involves a question of law or policy not previously resolved by the Commission; (c) involves application of a policy or precedent that should be overturned or revised; (d) involves an erroneous finding as to an important or material question of fact; and/or (e) involves prejudicial procedural error. As discussed in further detail herein, we find that the Applicants have failed to make the requisite showing that grant of their Application for Review is warranted. Thus, we deny their Application for Review. 9. Ex Parte Violation. The Applicants argue that the Bureau and LILCO have violated the ex parte rules. They further argue that, as a result, the additional information provided by LILCO in response to the staff's information request should not have been considered in the Bureau's determination of whether to grant LILCO's application. For purposes of applying the Commission's ex parte rules, requests for Commission action were handled one of two ways at the time LILCO's application was filed: as informal requests for Commission action or as formal oppositions to applications. Although there are no rules permitting a formal petition to deny an application in this radio service, the Commission's ex parte rules then in effect provided that so long as an informal objection met the specific criteria for a formal opposition, the proceeding was restricted. We conclude that the Applicants' filing met the criteria for a formal opposition because the caption and text of the pleading were unmistakably intended to be a formal opposition to the application and because the pleading was served on the other party. Therefore, for purposes of our former ex parte rules, we believe that the Applicants' pleading should have been treated as a formal opposition to the LILCO application, thus making the proceeding a restricted proceeding and subjecting it to the ex parte restrictions, including service of all substantive documents on all parties. We find, therefore, that the Applicants are correct that the Bureau's Application Return Notice and LILCO's response (including the system design diagram) are communications that should have been served on the Applicants pursuant to the ex parte rules. 10. In view of the ex parte violation found above, we will, as explained below, take appropriate corrective action. Initially, we note that there is no basis to treat the ex parte violation as reflecting on LILCO's character or warranting dismissal of LILCO's application, since it essentially resulted from a good faith error by both the Bureau and LILCO as to the ex parte status of the proceeding. We will not, however, give further weight to the Bureau's decision. Under our rules, ex parte materials may be considered in determining the merits of a restricted proceeding only after the materials have been made part of the record and the parties so informed. The Bureau's decision, which was made without giving the Applicants notice of the ex parte presentations and an opportunity to respond, is therefore defective. Nevertheless, we are able to remedy any procedural defect in the Bureau's decision by conducting a de novo review of the pertinent evidence, including the Applicants' response to the ex parte presentations. By doing so, we are able to issue a decision untainted by the ex parte violation. We find that the Bureau's decision effectively made the ex parte part of the record and so informed the Applicants. The Applicants have now had a full opportunity to know that LILCO's supplemental showing has been made part of the record and have fully responded to it in their Petition for Reconsideration and Application for Review. We, therefore, do not believe that there is a need to give the Applicants yet another opportunity to respond to the showing before conducting our de novo review. As the following discussion indicates, pursuant to our independent review, we find that LILCO's operations are in compliance with the Commission's rules. We find specifically that: (1) LILCO's facilities would not create unacceptable co-channel interference, and (2) LILCO has proposed an adequate system design. We now address these matters in detail. 11. Interference. The Applicants assert that the predicted 40 dBę/30 dBę contours impermissibly overlap such that LILCO's proposed system would not be protected from existing systems. The Applicants do not allege that LILCO's system will interfere with their stations; rather, the fundamental premise for their participation in this proceeding rests on the novel theory that the coordinator failed to fully protect LILCO from interference from existing stations such as the Applicants' facilities. Given the absence of any allegations of harm to their own stations, we believe that the Applicants' argument regarding interference is without merit, as is their assertion that the frequency coordinator acted improperly. For trunked systems in the Industrial/Land Transportation Category, the Commission's Rules in effect at the time of the filing of LILCO's application required only that the coordinators "attempt to . . . limit co-channel interference levels to 30 dBę over an applicant's requested service area," and where a separation will be less than 70 miles "indicate that the protection criteria have been preserved." SIRSA indicated that the proposed application complied with this Rule, and the Applicants have not demonstrated that the frequency coordinator failed to make the requisite attempt at satisfying the interference criteria. 12. In addition, the Applicants allege that "[p]rior to the grant of LILCO's applications, the applicable rule changed" to require that a proposed station's 22 dBę interference contour not reach an existing co-channel station's 40 dBę contour. This assertion, however, is inaccurate. At the time LILCO's application was filed, the Commission had not yet imposed a requirement to apply a 40 dBę/22 dBę ratio to 800/900 MHz applications such as LILCO's. This requirement was imposed in the Above 800 MHz NPRM, where the Commission emphasized that after the document's adoption date, March 11, 1993, new 800/900 MHz applications would no longer be accepted unless they complied with 47 C.F.R.  90.621(b)'s SMR system distance separations or met short-spacing requirements reflecting the 40 dBę/22 dBę standard. However, LILCO's application was filed on May 15, 1992, well before that date, and thus the Commission's prospective requirement was not applicable to it. Moreover, the Commission did not adopt the separations standards based on 40 dBę/22 dBę for non-SMR systems until September 22, 1993, well after the grant of LILCO's application on April 23, 1993. Accordingly, we conclude that the Applicants' argument is without merit. 13. Engineering Design. The Applicants argue that LILCO's proposed system was irrational and violated Section 90.205 of our Rules, which provides that land mobile radio applications must specify no more power than actually necessary for satisfactory operation. The basis for the Applicants' position is that the service areas of some of LILCO's base stations overlap each other, but we find that this demonstrates neither irrationality nor excessive power. Such a design can, for example, allow for greater frequency reuse, which increases a system's capacity. Accordingly, we find that the public interest is served with regard to the engineering design of the system. Further, we will not retroactively apply additional engineering criteria to LILCO's application filing requirements. As a result, we are not persuaded by the Applicants' contention. 14. Site Designation and System Loading. In their Application for Review, the Applicants for the first time claim that the grant of LILCO's application was in error because neither LILCO nor the Bureau designated any of LILCO's sites as primary, and because LILCO's application did not demonstrate that it would meet the minimum loading requirement. First, we note that Power Radio Service licensees are not required to designate one primary station in a wide area system, and it has been the Bureau's practice to designate all of the stations in such a system as primary (though such information does not appear on the license). Second, the Applicants have misinterpreted the system loading requirement of seventy mobile units per channel. The Applicants contend that LILCO's proposed six-station system, using the same eight channels at each station, required 3,360 mobile units (70 x 8 x 6). However, the requirement is seventy mobile units per channel, not seventy mobile units per channel per base station. Therefore, LILCO's minimum loading requirement was 560 mobile units (70 x 8), which it exceeded. 15. Burden of Proof. Finally, the Applicants assert that Section 556(d) of the APA mandates that the burden of proof be placed upon the license applicant and that the Bureau erred in finding that the Applicants had failed to demonstrate that harmful interference likely would occur. We find that the Applicants' reliance on the APA in this instance is misplaced. Section 556 by its own terms is applicable only in proceedings which require resolution by a hearing on the record. In this case, the prospective licensee ultimately submitted an application which complied with the Commission's Rules. The Commission has ruled previously that a challenger to a prospective licensee carries the burden of demonstrating that the application is flawed. Thus, we conclude that the Bureau's approach with respect to the burden of proof regarding the subject LILCO application was fully consistent with this Commission precedent. Further, as discussed herein, we conclude that the Applicants have failed to meet this burden of proof regarding its opposition to LILCO's application. IV. CONCLUSION 16. In order to remedy the ex parte violation that occurred at the Bureau level, we have reviewed the Applicants' petition for reconsideration and related pleadings de novo. We conclude that grant of LILCO's application is in the public interest. V. ORDERING CLAUSE 17. Accordingly, IT IS ORDERED that the grant of an authorization for Station WPCB998 to Long Island Lighting Company IS AFFIRMED, and that pursuant to Sections 4(i) and 5(c) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 155(c), and Section 1.115(e) of the Commission's Rules, 47 C.F.R. 1.115(e), the Application for Review filed on January 6, 1994, by Friends Irrigation Systems, Inc., Newborn Construction, Inc., Mohawk Milling & Sweeping Corp., G.S. Energy Corp. d/b/a Faultless, Mayfair Power Systems, Inc., Tri Weld Industries, Inc., Antorino Sewer & Drain, Inc. and Local Cesspool, Sewer, & Drain IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary