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A. 1. a.(1)(a) i) a)T,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#     X` hp x (#%'0*,.8135@8:<    #:}D4P XP#,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#Footnote9Íčfootnote tex#:'p #FxX  Pg9CXP#2^;ii\header;Ax 4 <D  #FxX  Pg9CXP# reference<;#FxX  Pg9CXP#itemizeX1=&V 8F ` hp xr#FxX  Pg9CXP#header2>I ` hp x`    #FxX  Pg9CXP# 2 b?^Q^@O_A `Rheading 3?F` hp x #FxX  Pg9CXP# footer!@!!#d\  PCP#CitatorFormat Secretary's Citator Output FileAW r5-#d6X@`7Ͽ@# XX  X B r5-S  B2=b X- X   )ޚ X-x  #XP\  P6Q DXP#Federal Communications Commission`*(# DA 961706 ă  yxdddy )#XP\  P6Q DXP#*2 Before the x Federal Communications Commission  X-Washington, D.C. 20554 ă In the Matter of:R) R) Teletrac License, Inc. R) Request for Waiver of SectionR) 90.363(a) of the Commission's RulesR)  X -; ORDER TP  X -X` hp x (#%'0*,.8135@8:is no room available at the Milwaukee site and that owner of site is not amenable to leasing  xspace. Teletrac submits that it is able to find only one site that had the technical attributes it  xNwanted and whose owner is willing to lease space. That site is 17.05 kilometers from the  xoriginally licensed site. Teletrac concedes that the site would increase its coverage area, but  xisubmits that because the site is near Milwaukee's shoreline, at least half of the increased footprint  xLwould be over Lake Michigan. In addition, the new site is 380 feet higher than the original site  X -because the new site is atop an office building.FX ү yO]&-ԍ Teletrac Petition at 710. F "!,))ZZ "Ԍ X-  x3. Teletrac's authorization for Orlando consists of three transmitter sites. Teletrac has  xdiscovered that one of the sites does not exist, and that no sites exist within two kilometers of  xthat site. It submits that it has located an alternate site and that the owner is willing to lease  xspace. That site is 3.78 kilometers away from Teletrac's original site. Teletrac asserts that this  X-site will provide coverage of Orlando similar to the originally licensed site.< {O-ԍ Id. at 1112.<   x4. In Sacramento, Teletrac's authorization consists of six transmitter sites. Teletrac  xasserts that one of the sites, at McClellan Air Force Base, is inaccessible due to the refusal of  xthe Air Force to lease space. Teletrac notes that most of the twokilometer radius of the original  x=site falls within the boundaries of the Air Force Base. It accordingly seeks to relocate to a site  X -4.9 kilometers away from the originally licensed site.< Z {O% -ԍ Id. at 1214.<  X -   x5. In opposition to Teletrac's waiver request, Metricom, Inc. submits that the Commission  xadopted the 2 km site restriction only after significant controversy and careful consideration. It  x-also notes that Teletrac filed a petition for reconsideration of the site relocation restriction, which  X - x.was denied, and that Teletrac has filed a petition for reconsideration of that denial.  yOD- xjԍ Opposition of Metricom, Inc. to Teletrac License, Inc. Petition for Waiver of Section 90.363(a) of the Commission's Rules, filed July 30, 1996, at 24, 4 n.6. Metricom  xKfurther argues that Teletrac has not presented unique circumstances sufficient to justify a waiver,  xas required by Section 90.151 of the Commission's Rules, 47 C.F.R.  90.151, particularly since  Xb- xthe Commission already addressed the issue of unavailability of transmitter sites in the First  XM- xOrder on Reconsideration in PR Docket 9361.+MD {OB-  ԍ Id. at 45 (citing Amendment of Part 90 of the Commission's Rules to Adopt Regulations for Automatic Vehicle  {O -Monitoring Systems, Order on Reconsideration, PR Docket No. 9361, FCC 96115 (released March 21, 1996)).+  Similarly, the Part 15 Coalition filed an  xjOpposition asserting that the waiver request mirrors Teletrac's petition for reconsideration and  X!- xthat the Teletrac proposal would undermine the Commission's grandfathering rules.! yOr- xԍ Opposition of the Part 15 Coalition to Teletrac License, Inc, Request for Waiver of Section 90.363(a) of the Commission's Rules, filed July 30, 1996, at 1. Teletrac  X - xisubmits in its Reply that it is uncontroverted that Teletrac's waiver request is de minimis, and that  xKMetricom does not attempt to address the detailed showings made in Teletrac's petition. Teletrac  xfurther argues that Metricom does not explain what harm it could suffer due to the proposed site  X-relocations.  yOp#-ԍ Reply of Teletrac License, Inc. to Opposition to Petition for Waiver, filed August 2, 1996, at 12.  X-  0x6. Discussion. In the First Order on Reconsideration, the Commission considered and  xdenied a request by Teletrac and others to expand the twokilometer site relocation restriction of  x/Section 90.363(a) to ten miles. The Commission noted that the twokilometer limitation was"m ,N(N(ZZ1"  X- x/based on the benchmark established in the CMRS Third Report and Order for determining  xwhether an application for a site change of a CMRS facility is to be treated as a modification  x.application or as an initial application for the purpose of determining eligibility for competitive  X- xKbidding procedures.~ ^ {O6- xԍ First Order on Reconsideration at para. 39 (citing Implementation of Sections 3(n) and 332 of the  {O- x;Communications Act Regulatory Treatment of Mobile Services, Third Report and Order, GN Docket No. 93252,  {O-9 FCC Rcd 7988 (1994) (CMRS Third Report and Order)).~ Because Teletrac's request is based on three specific sites out of more than  x65 for which it is authorized, we do not agree with Metricom and Pinpoint that the waiver  xpetition is a misplaced attempt at reconsideration of the rule. Indeed, our action on Teletrac's  xrequest in no way is intended as a precursor to our disposition of its petition for reconsideration  Xa-of the First Order on Reconsideration.  X5-  x7. Pursuant to Section 90.151 of the Commission's Rules, a Part 90 provider requesting  xa rule waiver must meet two criteria. First, it must show that unique circumstances are involved.  X - x>Second, it must show that there is no reasonable alternative solution within existing rules.    x|Further, a waiver of the Commission's Rules is, in general, appropriate "only if special  xcircumstances warrant a deviation from the general rule and such deviation will serve the public  X - xinterest."   {Oa- xԍ Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see also WAIT Radio v.  {O+-FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972). Teletrac contends that it made diligent efforts to find alternate sites in Milwaukee,  xOrlando and Sacramento, and that unique circumstances exist that prevent it from locating  xkacceptable alternative sites within the twokilometer radius required by Section 90.363(a). It  x=submits that the proposed alternate sites were selected to maintain adequate system coverage  xwhile avoiding overlap with auctionable territory, and that grant of the waiver would be in the public interest because it would facilitate construction and operation of Teletrac's LMS system.  X!-  _x8. We are satisfied that Teletrac has met the Part 90 waiver criteria with respect to  x>Orlando and Sacramento, and that such a waiver would be in the public interest as it would  x<facilitate service to customers in those areas. Pursuant to our own engineering analysis, we have  X- xdetermined that the proposed transmitter site relocations are de minimis in distance (3.78 km and  x\4.9 km, respectively) and will not have a significant effect on the coverage area of either the  x=Orlando or the Sacramento system. We do not believe, however, that a grant of the requested  xwaiver for Milwaukee is warranted. The proposed 17.05kilometer relocation would substantially  xchange the coverage area of Teletrac's system to include a much more populous area than  xMTeletrac would have been able to reach using its original transmitter site. Permitting such a  xjsignificant change would be contrary to our intention in grandfathering existing multilateration  xxLMS licenses that were not yet constructed, which was to give parties that had already conceived  xltheir systems a chance to build them out before the institution of widearea licensing via  xcompetitive bidding. Further, Teletrac has available to it the reasonable alternative of bidding  xfor new spectrum if it seeks to expand its Milwaukee system. While the same argument could  x=be made regarding the Orlando or Sacramento proposals, we believe that those relocations are  x=so minor that it would not be reasonable for us to require Teletrac to delay initiation of service" J ,N(N(ZZ"  xpending the outcome of competitive bidding for those areas. The Milwaukee proposal, however,  xLis distinguishable due to the distance of the move and the change in coverage, and we believe  xthat requiring Teletrac to engage in competitive bidding for that area is a reasonable alternative to granting the waiver.   x9. Accordingly, IT IS ORDERED that the Petition for Waiver filed by Teletrac License, Inc. is GRANTED to the extent outlined above and is otherwise DENIED.   x 10. This action is taken pursuant to authority delegated in Sections 0.241 and 0.331 of the Commission's Rules, 47 C.F.R.  0.241 and 0.331. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Michele C. Farquhar x` `  hh@Chief, Wireless Telecommunications Bureau