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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )
Replacement of Part 90 by Part 88 to Revise) PR Docket No. 92-235
the Private Land Mobile Radio Services and)  
Modify the Policies Governing Them)     )
                                )
and                             )
                                )
Examination of Exclusivity and Frequency)
Assignment Policies of the Private Land)
Mobile Services                 )


              FOURTH MEMORANDUM OPINION AND ORDER


   Adopted:  August 4, 1999             Released:  August 5, 1999

By the Commission:

                         I.  INTRODUCTION

     1.  On July 7 and 9, 1999, respectively, MRFAC, Inc. (MRFAC) and Forest Industries
Telecommunications (FIT) requested that the Commission stay the effective date of recent amendments to
Sections 90.35 and 90.175 of the Commission's Rules until the issues raised in their petitions for
reconsideration are addressed.  For the reasons stated herein, the requests are granted.

                         II.  BACKGROUND

     2.  Formerly, the Private Land Mobile Radio service frequencies in the bands below 512 MHz
were divided into twenty separate radio services, including the Power, Petroleum, Forest Products,
Manufacturers, and Railroad Radio Services.  For each service (with one exception not at issue here), the Commission certified one frequency coordinator to make frequency recommendations.  The certified
frequency coordinators for the services mentioned above were, respectively, UTC, the Telecommunications
Association (UTC), the American Petroleum Institute (API), FIT, MRFAC, and the American Association
of Railroads (AAR).  Coordination of a frequency that was shared by more than one service required the
concurrence of the frequency coordinator(s) of the other service(s).  

     3.  In the Second Report and Order in this proceeding, released March 12, 1997, the Commission
consolidated the twenty radio services into two broad frequency pools, Public Safety and
Industrial/Business.  All of the services listed above were consolidated into the Industrial/Business Pool. 
Generally, the Commission allowed coordination of any Industrial/Business frequency by any of the
coordinators of the services that were consolidated into that pool, who would then notify the other in-pool
frequency coordinators within one business day.  The introduction of competition into the frequency
coordination process was expected to result in lower coordination costs and better service to the public. 
The Commission provided, however, that frequencies formerly allocated solely to the Power, Petroleum, or
Railroad Radio Service could be coordinated only by the relevant frequency coordinator.  The
Commission made this exception in order to ensure that licensees in those services, who sometimes use
radio as a critical tool for responding to emergencies that could be extremely dangerous to the general
public, not incur harmful interference from other licensees.

     4.  API sought reconsideration of the Second Report and Order, on the grounds that this exception
did not provide sufficient protection to incumbent petroleum operations because most of the frequencies
formerly allocated to the Petroleum Radio Service were shared with other services.  API suggested that
the Commission require API's concurrence when another Industrial/Business Pool frequency coordinator
sought to coordinate a frequency that formerly was shared by the Petroleum Radio Service, and the
applicant's interference contour would overlap an existing co-channel station's service contour. 

     5.  In the Second Memorandum Opinion and Order in this proceeding, released April 13, 1999,
the Commission rejected API's proposal, because, inter alia, the issue of whether to provide protected
contours to Part 90 licensees is the subject of another aspect of this proceeding, and thus was beyond the
scope of the Second Memorandum Opinion and Order.  The Commission believed that API had raised a
legitimate issue concerning the frequencies that formerly were allocated to the Petroleum Radio Service on
a shared basis, however, and that the issue also related to frequencies formerly shared by the Power and
Railroad Radio Services.  Consequently, the Commission amended the rules to require that frequencies
formerly allocated to those services on an exclusive or shared basis be coordinated only by the frequency
coordinator of the relevant service, or, at the relevant frequency coordinator's discretion, with its written
concurrence.  The Second Memorandum Opinion and Order was published in the Federal Register on
July 6, 1999, so the rule changes are set to take effect on August 5, 1999.

     6.  MRFAC filed a Motion for Expedited Partial Stay on July 7, 1999, and a Petition for Partial
Reconsideration on July 8, 1999.  FIT filed both a Petition for Partial Stay and a Petition for Partial
Reconsideration on July 9, 1999.  MRFAC and FIT seek a stay of the requirement that frequencies
formerly allocated on a shared basis to the Power, Petroleum, or Railroad Radio Services be coordinated by
UTC, API, or AAR, respectively (or, at their discretion, with their written concurrence).  UTC and API
filed joint oppositions to the stay requests.  MRFAC and FIT filed replies.  In addition,
four entities using former Forest Products Radio Service frequencies submitted comments supporting FIT's
Petition for Partial Stay and Petition for Partial Reconsideration.

                         III.  DISCUSSION

     7.  Although the Commission has declined to adopt a single standard for requests for injunctive
relief, we generally consider four criteria:  (1) a likelihood of success on the merits, (2) the threat of
irreparable harm absent the grant of preliminary relief, (3) the degree of injury to other parties if relief is
granted, and (4) that a stay will be in the public interest.  These factors are balanced on a case-by-case
basis; a stay may be warranted if there is a particularly strong showing as to at least one of the factors,
even if there is no showing regarding another.  MRFAC and FIT argue that their petitions for
reconsideration are likely to prevail on the merits, that they will suffer irreparable harm if a stay is not
granted, that other interested parties will not be harmed by a stay, and that the public interest favors grant
of a stay.  We find that they have made a showing that a stay is appropriate.

     8.  Success on the merits.  MRFAC and FIT contend that the Second Memorandum Opinion and
Order was unlawful in that the Commission did not provide notice of, and an opportunity to comment on,
the possibility that the exception for exclusive power, petroleum, and railroad frequencies would be
extended to shared frequencies, as required by the Administrative Procedure Act.  UTC and API argue
that the amendment was permissible because it was a "logical outgrowth" of the actions taken in the Second
Report and Order.  MRFAC and FIT reply that nothing prior to the Second Memorandum Opinion and
Order gave adequate notice of the rule adopted therein.

     9.  MRFAC and FIT also contend that the new requirement is arbitrary and capricious, because,
inter alia, MRFAC and FIT have successfully coordinated those frequencies for years with no interference
complaints from API, UTC, or AAR.  UTC and API maintain that the Second Report and Order, by
allowing any in-pool frequency coordinator to coordinate the shared frequencies, increased the potential for
the licensing of incompatible systems.

     10.  Irreparable harm.  MRFAC and FIT contend that they will be irreparably harmed if a stay is
denied, because a significant portion of their frequency coordination business relates to frequencies that
formerly were allocated on a shared basis to the Power, Petroleum, or Railroad Radio Services.  They
suggest that they will lose not only this business, but also other coordination business, for licensees will use
other frequency coordinators (i.e., API and UTC) rather than try to keep track of which frequencies
MRFAC and FIT may coordinate, and which ones they may not.  They also state that their customers will
be harmed because API, UTC, and AAR will not make the same effort to find spectrum for them that
MRFAC and FIT will. Associated Oregon Loggers notes that radio systems used by the forestry industry
also protect safety, and argues that preempting FIT's ability to coordinate modifications to existing systems
could impair their effectiveness.

     11.  UTC and API respond that allegations of lost business are speculative, because the rules
provide that MRFAC and FIT may still coordinate these shared frequencies if they agree with UTC, API,
and AAR regarding a concurrence procedure.  They also point out that, even after the Second
Memorandum Opinion and Order, MRFAC and FIT can coordinate more frequencies than they could
before the Second Report and Order was adopted; and that any confusion among coordination customers
already exists, since there already are frequencies that can be coordinated by UTC, API, and AAR, but not
MRFAC or FIT.

     12.  Injury to other parties.  MRFAC contends that no other parties will be harmed by a stay,
because it demonstrated for years that it can coordinate these frequencies so as to prevent interference to
power, petroleum, and railroad operations.  FIT states that the current notification scheme is sufficient to
prevent the authorization of potentially incompatible systems.  UTC and API agree that MRFAC and FIT
have caused no problems, but contend that the notification requirement is nonetheless not sufficient, and
has resulted in some instances of interference to existing power and petroleum operations from licensees
coordinated by other frequency coordinators.

     13.  Public interest.  Finally, MRFAC and FIT contend that a stay will be in the public interest,
because it will preserve the pro-competitive benefits the Commission desired when it decided to permit all
Industrial/Business frequency coordinators to coordinate all Industrial/Business frequencies, except for the
exclusive power, petroleum, and railroad frequencies, and that maintaining this choice will spare
coordination customers confusion, delays, and added costs.  UTC and API argue that the public interest
would not be served by a stay that could increase the potential for interference to power, petroleum, or
railroad radio operations.

                         IV.  CONCLUSION

     14.  MRFAC and FIT have raised substantial issues regarding the propriety and utility of the rule
changes adopted in the Second Memorandum Opinion and Order.  It is likely that they will incur much
greater harm if the rules are permitted to take effect than might accrue to UTC and API if they are stayed. 
We conclude, therefore, on balance, that MRFAC and FIT have shown that it is in the public interest to
grant the requested stay while the Commission examines these issues, in order to permit frequency
coordinators to continue coordinating frequencies they have coordinated for years, and preserve
coordination customers' options.  We also find that limiting the stay to certain frequency coordinators or
certain frequencies would engender greater confusion than it would avoid.  Therefore, we shall stay in their
entirety the changes to Sections 90.35 and 90.175 of the Commission's Rules requiring that frequencies
formerly allocated on a shared basis to the Power, Petroleum, or Railroad Radio Services be coordinated by
UTC, API, or AAR, respectively (or, at their discretion, with their written concurrence).

                       V.  ORDERING CLAUSE

     15.  IT IS ORDERED that, pursuant to Sections 4(i), 11, 303(g), and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C.  154(i), 161, 303(g), 303(r), and Section 1.429(k)
of the Commission's Rules, 47 C.F.R.  1.429(k), the Motion for Expedited Partial Stay filed by MRFAC,
Inc. on July 7, 1999 and the Petition for Partial Stay filed by Forest Industries Telecommunications on July
9, 1999 ARE GRANTED, and the stay will be in effect until the Commission resolves their Petitions for
Reconsideration of the Second Memorandum and Order in this proceeding.

                              FEDERAL COMMUNICATIONS COMMISSION


                                                                                                    
                         Magalie Roman Salas
                              Secretary