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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 Applications of) ) FRED DANIEL D/B/A ORION TELECOM ) File Nos. 850290-850292, 850294-850305, ) 850442, 850443, 851661, 851664, 851822, For Automated Maritime Telecommunications) 851823, and 851827-851829) System Stations at Various Inland Locations) MEMORANDUM OPINION AND ORDER Adopted: November 18, 1999 Released: November 24, 1999 By the Commission: I. INTRODUCTION 1. On February 19, 1999, Fred Daniel d/b/a Orion Telecom (Orion) filed an Application for Review of a decision by the Wireless Telecommunications Bureau's Public Safety and Private Wireless Division (Division). The Division denied reconsideration of decisions by the Division and the Division's Licensing and Technical Analysis Branch (Branch) dismissing Orion's applications for authorization to construct and operate Automated Maritime Telecommunications System (AMTS) stations at various inland locations. For the reasons discussed below, we affirm the Division's decision and deny Orion's Application for Review. II. BACKGROUND 2. An AMTS is a specialized system of public coast stations providing integrated, interconnected marine voice and data communications, somewhat like a cellular phone system, for tugs, barges, and other commercial vessels as they move along a waterway. AMTS offers improved services over those available from individual VHF public coast stations, by relieving vessel operators from having to change frequencies and contact new coast stations (which may have different call set-up and billing procedures) during their travel along waterways. The Commission allocated spectrum for AMTS use on the Mississippi River system in 1981, and expanded the authorized service area to the Gulf Intracoastal Waterway in 1982, the Gulf of Mexico in 1984, and nationwide in 1991. In 1997, the Commission adopted rules to permit VHF and AMTS public coast stations to also serve units on land. 3. On January 16, 1997, Orion, which currently provides AMTS service along the Atlantic, Pacific, and Hawaii coasts, and also is licensed to provide service along the Great Lakes, Erie Canal, and west coast of Florida, filed license applications for AMTS stations at Denver, CO; Henderson, NV; Nashua, MO; Yuma, Phoenix, and Tucson, AZ; San Antonio, Pittsville, El Paso, Fort Worth, and Dallas, TX; Tucker and Mountain Park, GA; Dayton and Worthington, OH; Indianapolis, IN; and Minneapolis, MN. On February 19, 1998, Orion filed applications for AMTS stations at Magna, UT, and Pineridge, CA. On March 16, 1998, it filed license applications for AMTS stations at Hillsborough, Brevard, and Gastonia, NC; Danbury, CT; Modesto, CA; Bosifort, WA; and Albuquerque, NM. On March 19, 1998, the Branch requested additional information about the proposed stations' service areas, which Orion provided on April 13, 1998. 4. On July 29, 1998, the Division denied the Denver, Tucker, and Mountain Park applications. The Division concluded that the AMTS rules, and the Commission proceedings underlying the promulgation of those rules, provide only for the licensing of multi-station AMTS, and not individual AMTS stations. The Denver application therefore could not be granted. The Division also concluded that the rules do not authorize AMTS service along waterways that can be served in their entirety by a single station. Thus, the Tucker and Mountain Park applications, which both proposed multiple, redundant stations to serve Lake Acworth, were denied. 5. On August 5, 1998, the Branch dismissed the other applications on the grounds that they proposed construction and operation of individual AMTS stations or of multiple stations serving waterways that could be covered by a single station, and thus were defective in light of the Division Dismissal. 6. On August 10, 1998, Orion submitted additional information to the Branch regarding the Pineridge, Modesto, and Bosifort applications, which the Branch chose to treat as petitions for reconsideration. On August 12, 1998, the Branch concluded that the Modesto and Bosifort applications should not have been dismissed pursuant to the Division Dismissal, because they would be part of Orion's existing West Coast system. The Branch upheld the dismissal of the Pineridge application, however, because the proposed station's predicted service contour overlapped the system's composite contour over land only, so it would not be deemed part of the West Coast system. 7. Orion petitioned for reconsideration of the Division Dismissal on August 24, 1998, and for reconsideration of the Branch Dismissal on September 2, 1998, on the grounds that the Division Dismissal misinterpreted the AMTS rules. The Division denied the petition on January 21, 1999. It adhered to its decision that the AMTS rules, and Commission proceedings underlying the promulgation of those rules, provide only for the licensing of multi-station AMTS serving waterways that cannot be covered by a single station. The Division also rejected Orion's argument that the Tucker and Mountain Park applications should not have been dismissed because they would be part of Orion's existing East Coast system. The Division disagreed because the proposed stations were over two hundred miles inland from the nearest East Coast system station, so it appeared unlikely that the service contours overlapped, and, moreover, any overlap was over land only, so the proposed stations were not deemed part of the East Coast system. 8. Orion filed an Application for Review of the denial of reconsideration on February 19, 1999. North Central LPTV, Inc. (North Central), licensee of a low power Channel 13 television station in Columbus, OH, filed an opposition to the Application for Review on March 5, 1999. VideoIndiana Inc., licensee of a Channel 13 station in Indianapolis, IN, filed an opposition to the Application for Review on March 9, 1999. Orion replied to the oppositions on March 17, 1999. III. DISCUSSION 9. We find no justification for reversing the Division's decision denying reconsideration of the dismissal of Orion's applications. Orion offers three arguments for reversing the decision. First, it argues that the Division's conclusion that the rules do not authorize AMTS service along waterways that can be served in their entirety by a single station was erroneous because the Commission intended for AMTS service to be available nationwide. Second, it maintains that even if this limitation is correct, the Commission should accept an applicant's judgment that adequate service to a given waterway requires more than one station. Finally, Orion contends that an inland AMTS station should be deemed part of another system even if its signal overlaps the system's composite contour over land only. 10. Orion notes that the AMTS Nationwide Order authorized service "on a nationwide basis," and did not specifically exclude waterways that can be covered by one AMTS station. However, the Commission in the same order decided to retain the AMTS coverage requirement for inland waterways, in order to sustain the rule's purpose "to provide for integrated systems that offer coverage over marine shipping routes and to exclude from the AMTS band individual VHF stations." It also adopted a coverage requirement for coastlines of a "substantial navigational area." Generally, a "substantial navigational area" is greater than what can be covered by a single station, otherwise the requirement would be superfluous. Because the Commission viewed this requirement as analogous to the coverage requirement for inland waterways, it is reasonable for the Division to conclude that the inland requirement also requires more than a single station. Because the exclusion of individual stations from the AMTS band necessarily includes the exclusion of single stations along waterways that can be served by a single station, we reject Orion's suggestion that the exclusion applies only to single stations along waterways that would require multiple stations for full coverage. Thus, we conclude that the AMTS Nationwide Order does not stand for the proposition that AMTS service may be offered on every navigable waterway in the United States; rather, it upholds the requirement that AMTS systems serve waterways too long to be served by an individual coast station. This conclusion accords with the Commission's Rules and statements elsewhere barring single AMTS stations. 11. Orion also argues that, even if the Commission prohibits single AMTS stations, it should permit multi-station systems on any waterway. It contends that the Commission should not try to determine how many stations are required to provide adequate service to a given waterway, as the Division did with respect to Lake Acworth, because such decisions are better left to the technical and business judgment of AMTS operators, who are more familiar with the waterway's physical and commercial conditions. We agree that, in a close case, the operator's judgment that multiple stations are appropriate is entitled to some deference, but we do not believe that this is such a case. Lake Acworth is completely within the predicted service contour of both the proposed Tucker and Mountain Park stations. Moreover, Orion has not suggested that terrain or other obstructions, or the volume of maritime traffic on the lake, would prevent either station from adequately serving the approximately twenty-mile long lake. We agree with the Division's decision that, on the record before us, Lake Acworth can be served by a single coast station. 12. Finally, Orion contends that, even if an AMTS must serve a waterway that cannot be served by a single station, a station should be deemed to be part of such an AMTS so long as the station's service contour overlaps the composite contour of the system, even if such overlap is over land only. Based on this argument, Orion contends that the Tucker, Mountain Park, and Pineridge applications should not have been dismissed. It further contends that the Commission's goal in allowing VHF and AMTS public coast stations to provide service to land units was to create additional competition among commercial mobile radio service (CMRS) providers, and that requiring that the signals overlap over the served waterway frustrates this goal because it prevents AMTS operators from duplicating the service area of other CMRS providers. We are not persuaded by this argument. As set forth above, our Rules limit which waterways are eligible for AMTS service. Under Orion's reading of the rule permitting service to units on land, however, an AMTS station could be placed absolutely anywhere, so long as its service contour overlapped (even over land only) the service contour of a station serving an eligible waterway, or overlapped the service contour of a station with a service contour overlapping the service contour of a station serving an eligible waterway. Moreover, we note that the Commission proposed permitting service to units on land primarily to assist and sustain stations providing maritime service, many of which had lost revenue due to competition from other CMRS providers and were in danger of closing, by allowing them to put their unused capacity to profitable use. The possibility that such flexibility might promote additional CMRS competition in coastal areas was but a subsidiary benefit, and Orion has failed to provide any objective evidence that the Commission contemplated such competition beyond those areas. 13. We also reject Orion's suggestion that the Division denied Orion's applications in order to preserve the Commission's inventory for a contemplated auction of AMTS spectrum. The record in this proceeding reflects that the Division's decision was based on an extensive review of the AMTS rules and rulemaking proceedings. Further, Orion's concern that limiting the waterways on which AMTS service can be offered might in fact reduce the federal government's revenues in the event such an auction is conducted is premature, because we anticipate initiating a rule making proceeding regarding changes to the licensing and service rules for AMTS spectrum and adoption of AMTS competitive bidding rules and procedures. Moreover, we do not take action simply to maximize auction revenues. IV. CONCLUSION 14. For the reasons stated above, we deny Orion's Application for Review of the Division's decision denying reconsideration of the Division's and Branch's dismissal of Orion's applications for inland AMTS stations. The AMTS rules and the underlying Commission decisions do not authorize stations serving only waterways that can be served by a single coast station. V. ORDERING CLAUSE 15. Accordingly, IT IS ORDERED that, pursuant to the authority of Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, the Application for Review filed by Fred Daniel d/b/a Orion Telecom on February 19, 1999 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary