********************************************************    
                                         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

ComTech Petition for Declaratory Ruling that
Licensees of Nationwide 220 MHz Mobile
Communications Systems Are Not Required to License
Separately Each of the Systems' Base Stations
)
)
)
)
)
)
)


File No. WTB/Pol 96-1




                  MEMORANDUM OPINION AND ORDER



Adopted: July 29, 1999
Released: August 3, 1999



By the Commission:

                         I.INTRODUCTION

     1.   In this Order, we address a Petition for Declaratory Ruling filed by ComTech, Inc. (ComTech) on
     October 31, 1995.  ComTech requests a declaratory ruling that under current Commission rules,
     Phase I nationwide 220 MHz licensees do not have to obtain separate authorizations for each of
     their systems' base stations.  In lieu of deciding ComTech's declaratory ruling request, we
     conclude that the relief requested by ComTech can be more readily addressed under the
     Commission's authority to forbear from regulation pursuant to Section 10 of the Communications
     Act.  Therefore, for the reasons discussed below, we will forbear from requiring Phase I
     nationwide 220 MHz licensees to obtain separate authorizations for individual base stations in their
     systems, provided that these licensees maintain site data as part of their station records and they
     provide these data to other licensees or the Commission upon request.  Our grant of forbearance,
     however, does not extend to those situations where individual site licensing is required for
     environmental, international coordination, or other similar purposes, and each Phase I nationwide
     licensee also remains subject to the construction and notification requirements applicable to its
     system under Section 90.725(d) of the Commission's rules.

                         II.BACKGROUND

2.     ComTech is one of four 220 MHz Phase I nationwide commercial system licensees (Phase I
nationwide licensees) operating in the 220 MHz band.  In its petition, ComTech requests a declaratory
ruling that the Commission's 220 MHz rules do not require Phase I nationwide licensees to obtain separate
authorizations for each of their systems' base stations.  ComTech acknowledges that in the 220 MHz
Report and Order, the Commission stated that Phase I nationwide licensees would have to file separate
applications and obtain individual authorizations for each base station.  However, ComTech contends that
this statement conflicts with and is superseded by Section 90.725(d) of the Commission's rules, which
requires that Phase I nationwide licensees file system progress reports after two, four, six, and ten years,
demonstrating compliance with the relevant construction benchmark criteria.  ComTech also argues that a
site-specific licensing requirement for nationwide 220 MHz systems is unnecessary and inconsistent with
the Commission's approach in licensing of other Commercial Mobile Radio Services (CMRS).

3.     The Commission sought public comment on ComTech's petition on January 19, 1996.  A
total of six parties filed comments and reply comments, all of which were supportive of ComTech's
petition.  In 1997, the Commission adopted service and auction rules for Phase II 220 MHz licensing in
the 220 MHz Third Report and Order, but did not address the ComTech petition.  Several parties filed
reconsideration petitions urging the Commission to take up the ComTech petition in the 220 MHz
proceeding, but in the Memorandum Opinion and Order on Reconsideration, we deferred consideration of
the issue.  On December 14, 1998, ComTech requested that the Commission act on the petition, or in the
alternative, that the petition be treated as a request for forbearance under Section 10 of the
Communications Act.  In a similar vein, Global Cellular Communications, another Phase I nationwide
licensee, filed comments in WT Docket No. 98-182 urging action on ComTech's petition.
     
                      III.DISCUSSION

4.     We conclude that it is unnecessary to address the declaratory ruling issues raised in
ComTech's petition, because the relief requested by ComTech can be granted under our authority to
forbear from regulation pursuant to Section 10 of the Communications Act.  Section 10 confers authority
on the Commission to forbear from applying any regulation or provision of the Act to a telecommunications
carrier if the Commission determines that:
     
       (1)  enforcement of such regulation or provision is not necessary to ensure that the charges,
       practices, classifications or regulations by, for or in connection with that telecommunications
       carrier or telecommunications service are just and reasonable, and are not unjustly or
       unreasonably discriminatory;
       
       (2)  enforcement of such regulation or provision is not necessary for the protection of consumers;
       and
       
       (3) forbearance from applying such provision or regulation is consistent with the public interest.

5.     We conclude that the statutory standard is met in this instance.  With respect to the first prong,
individual site-based licensing of Phase I nationwide licensees is neither necessary nor relevant to ensuring
that the rates and practices of these licensees are just and reasonable.  Similarly, with respect to the second
prong, requiring site-based licensing is not necessary to protect consumers.  The Commission has already
passed on the qualifications of these licensees when it granted their nationwide licenses, and their licenses
are subject to rules, such as height and power limits, that govern operations at all system sites, whether or
not such sites are individually licensed.  In addition, as discussed below, we will retain site-based
licensing procedures where prior approval, coordination, or notification of individual sites is required due
to environmental considerations, international coordination requirements, or similar factors.  However,
where these circumstances are not present, there is no consumer protection benefit from a generalized site-
based licensing requirement.

6.     We also find that forbearance from site-based licensing requirements for Phase I nationwide
licensees meets the "public interest" prong of Section 10.  Under their nationwide authorizations, ComTech
and the other three Phase I nationwide licensees must file progress reports with the Commission at the two,
four, six, and ten year anniversaries of their license grants demonstrating that they have met the phased
buildout requirements of Section 90.725(a) of the rules.  These reports must include, inter alia, a listing
of all sites at which base stations have been constructed, including the height and antenna power of each
site.  This reporting requirement is sufficient to meet the Commission's objective of ensuring that Phase I
nationwide licensees use their spectrum efficiently, without the additional need for these licensees to obtain
individual authorizations for each site.  In addition, forbearance will eliminate a significant filing burden for
the affected licensees and conserve the time and resources of Commission staff previously required to
process such applications.

7.     We find that the public interest prong of Section 10 implicates more than the efficient use of
spectrum in this case.  An essential condition of our decision is that other licensees have reasonable access
to Phase I nationwide licensee site information if they require it.  Because Phase I nationwide licensees are
the only entities in the nation licensed on their respective channels, there is no risk of co-channel
interference to other licensees from their operations.  However, licensees on adjacent channels and sub-
bands in the 220 MHz service may need access to Phase I nationwide licensee site information in order to
identify possible sources of adjacent channel interference or to configure their own systems to avoid such
interference.  Therefore, we condition our grant of forbearance on the requirement that Phase I nationwide
licensees maintain site data as part of their station records and provide these data to other licensees or the
Commission upon request.  The requirement to maintain and provide site data is also consistent with our
treatment of Phase II 220 MHz geographic licensees, who are subject to the same requirement.

8.     Our decision to forbear from site-specific application and licensing procedures for Phase I
nationwide licensees does not extend to existing requirements for prior notification, coordination, or
approval of individual sites that apply to all licensees, including not only site-specific licensees but also
geographically licensed CMRS licensees.  In particular, all geographically licensed CMRS licensees,
including PCS and Phase II 220 MHz licensees, are subject to site-specific licensing requirements for sites
that have an environmental impact or that require international coordination.  Similarly, geographic
licensees must comply with FAA notification requirements for sites that affect aviation safety and with
notification procedures for sites in proximity to radio quiet zones.  Notwithstanding the forbearance
otherwise granted by this order, these site-based licensing and notification requirements continue to apply
to all Phase I nationwide licensees.

9.     In light of these facts, we conclude that it is in the public interest to forbear from requiring
Phase I nationwide licensees to file for site-specific authorizations.  Therefore, except as provided in
paragraph 8, Phase I nationwide licensees need not file applications or obtain separate licenses for
individual base stations in their systems, provided that they maintain site information in their station
records and make it available upon request by other licensees or the Commission.  Each Phase I nationwide
licensee is still subject to the construction and notification requirements applicable to its system under
Section 90.725(d) of the Commission's rules.

                       IV.ORDERING CLAUSE

10.    ACCORDINGLY, IT IS ORDERED that the Petition for Declaratory Ruling filed by
ComTech, Inc. is hereby GRANTED to the extent stated herein and otherwise DENIED.

                         FEDERAL COMMUNICATIONS COMMISSION




                         Magalie Roman Salas
                         Secretary