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

In the Matter of                 )
New Orleans Convention Center    )    File No. EB-03-TS-134
Licensee of Station WPJS469,     )
New Orleans, Louisiana           )


   Adopted:  April 23, 2004             Released:  April 27, 2004

By the Chief, Enforcement Bureau:

                         I.   INTRODUCTION

     1.   In this Memorandum  Opinion and  Order (``Order''),  we 
conclude that  the  New  Orleans  Convention  Center  (``NOCC''), 
licensee of  public safety  radio station  WPJS469, New  Orleans, 
Louisiana, has  violated Sections  90.1791 and  1.903(a)2 of  the 
Commission's Rules (``Rules'') by leasing mobile units  operating 
on its public safety frequencies to end users.  We admonish  NOCC 
for these violations.  However, we deny the request filed by Two-
Way Communications, Inc. (``Two-Way'') for an Order to Show Cause 
(``Request''), which  seeks  revocation  of  NOCC's  license  for 
station WPJS469.  

                          II.  BACKGROUND

     2.   The New Orleans Convention Center is a registered trade 
name  of  the  Ernest  N.  Morial  New  Orleans  Exhibition  Hall 
Authority (``Authority'').3   The  Authority  is  a  public  body 
created by the Louisiana Legislature and is charged with creation 
and  operation  of  the  NOCC.   NOCC  does  not  receive  public 
subsidies.  It finances its operations  by the sale of goods  and 
services.4  The Convention Center building is a concrete and iron 
structure of 3,500,000  square feet, with  11 exhibit halls  that 
are approximately 100,000 square feet each.  The building is  0.9 
mile long and 0.3  mile wide.  NOCC holds  a license for  station 
WPJS469  in  the  Public  Safety/Special  Emergency  service  for 
operations  in  and  immediately  around  the  Convention  Center 
building.  Station  WPJS469 is  authorized  to operate  on  eight 
channel pairs in the 800 MHz band.    

     3.   Two-Way   holds   radio   station   licenses   in   the 
Business/Industrial service that  encompass the area  surrounding 
the New Orleans Convention Center.5  On January 21, 2003, Two-Way 
filed a Request for an Order to Show Cause, seeking revocation of 
NOCC's license  for station  WPJS469.   In  its Request,  Two-Way 
argues  that  NOCC  is  using  station  WPJS469  for   commercial 
purposes.  Two-Way asserts  that NOCC has  contracted with  Tomba 
Communications and Electronics, Inc. (``Tomba'') to manage NOCC's 
public safety radio system and  to lease handheld radios on  that 
system to NOCC's  customers and contractors  for a fee.   Two-Way 
also charges that the ``misuse of this public safety license  was 
conceived prior to the Convention Center's submitting its initial 
application'' for the license.6  In this regard, Two-Way  asserts 
that the  initial  application requested  authorization  for  900 
mobile units, too  many for  the ``small coverage  area'' of  3.5 
million square feet  of the interior  of the Convention  Center.7  
Accordingly, Two-Way charges that  NOCC misrepresented facts  and 
demonstrated lack of candor in filing its license application.

     4.   Two-Way further states that  anyone wishing to use  any 
other wireless device within the Convention Center building  must 
acquire prior  approval from  an engineering  company with  which 
NOCC has contracted to ensure  that the proposed wireless  device 
will not interfere  with its internal  antenna systems.   Two-Way 
provides  a  document  entitled  ``Radio  Frequency  Coordination 
Procedure'' in which NOCC requires that ``[a]ny person or  entity 
propagating radio  signals  within the  [Convention  Center],  or 
receiving signal from  any source not  served by the  [Convention 
Center] antenna system, must apply for prior approval....There is 
a charge for this engineering review....''8  Accordingly, Two-Way 
argues,  NOCC  has usurped  the  Commission's authority  for  the 
purpose of engaging in anti-competitive practices.

     5.   The Spectrum  Enforcement  Division  (``SED'')  of  the 
Enforcement Bureau issued a letter of inquiry to NOCC on July  8, 
2003.    In  its  response,  NOCC denied  that  it  uses  station 
WPJS469 for  commercial purposes.   It states  that it  uses  the 
station in a  manner consistent with  Section 90.20(a)(1) of  the 
Rules,9 and makes its system  available to customers on a  ``user 
fee sharing basis styled in the form of a lease.''10

     6.   NOCC states  that it  has  a public  safety  department 
employing 66  officers, and  provides for  a medical  staff  that 
operates out  of  three  offices  spread  evenly  throughout  the 
building.  NOCC  also states  that  it hosts  conventions,  trade 
shows and other events  that require installation, operation  and 
demolition with  extensive use  of  heavy machinery  in  confined 
quarters, construction of  large structures  with heavy  elements 
and rapid transportation  of a  large number of  people over  the 
length of the building. NOCC  states that these activities  would 
be  extremely   hazardous  and   inefficient  without   excellent 
coordination of the  customers, Convention  Center staff,  public 
safety personnel and medical subcontractors.11  

     7.   NOCC  explains  that   communications  throughout   the 
Convention Center  building  originally  were  accomplished  with 
handheld radios but  without a  wired antenna  system to  support 
mobile communications.  Eventually, NOCC contracted with  Two-Way 
to install a radio  network in the  building that supported  Two-
Way's  radio  station  frequencies.   NOCC  states  that  Two-Way 
subsequently made application on NOCC's behalf for NOCC''s public 
safety radio  station license.12   Two-Way's contract  was  later 
terminated and  its  network  removed and  replaced  with  a  new 
trunking and distributed antenna system belonging to NOCC,  which 
uses NOCC's public safety frequencies and also provides  cellular 
telephone coverage.  NOCC allows its customers and contractors to 
use the  public safety  radio system  by providing  preprogrammed 
radios at  a  ``nominal  cost.''13  NOCC  issued  a  request  for 
proposal (``RFP'')  for  a  contractor  to  manage  the  internal 
trunked system,  equipment, and  rental of  the mobile  units  to 
visiting conventioneers and contractors and subsequently selected 
Tomba to manage the system.  NOCC  argues that this use does  not 
qualify as ``commercial'' and is consistent with the rules  under 
which the license was issued.14

                         III.   DISCUSSION

     8.   Section 1.903(a) of the Rules provides that stations in 
the Wireless Radio Services may  be used only in accordance  with 
the rules applicable  to their  service.  Section  90.179 of  the 
Rules describes the manner  in which licensees  may share use  of 
private radio stations.    

     9.   The record before us indicates NOCC's use of its Public 
Safety/Special  Emergency   radio  station,   WPJS469,   violates 
Sections  1.903(a)  and  90.179  of  the  Rules.   Public  safety 
licensees on frequencies in the 800 MHz band may not operate as a 
for-profit  private  carrier.15   NOCC  is  permitted  under  its 
station authorization  to  enter  into  non-profit  cost  sharing 
agreements with other entities;  however, entities entering  into 
such agreements  with  NOCC must  themselves  be eligible  to  be 
licensed for  public safety  frequencies.16  Further,  our  rules 
require NOCC to have  a written agreement  with each such  entity 
that sets out (1) the method of operation, (2) the components  of 
the system that are covered by the sharing arrangements, (3)  the 
method  by  which   costs  are   to  be   apportioned,  and   (4) 
acknowledgement that all shared  transmitter use must be  subject 
to the licensee's control.17  

     10.  In addition,  stations licensed  in the  public  safety 
frequency bands may transmit only communications related directly 
to imminent  safety-of-life  or  property  and/or  communications 
directly related  and necessary  to  activities that  ``make  the 
licensee eligible for  the station license  ...,'' including  all 
communications provided under cooperative sharing arrangements.18  
Finally, our rules hold NOCC directly responsible for the  proper 
operation and use of each transmitter for which it is licensed.19  
NOCC must exercise whatever direction and control is necessary to 
assure that  all  authorized facilities  are  used (1)  only  for 
permissible purposes, (2) only in  a permissible manner, and  (3) 
only  by  persons   with  authority  to   use  and  operate   the 
equipment.20  The Commission holds NOCC directly responsible  for 
the compliance of its operations  with all laws and  regulations, 
notwithstanding that  it may  have contracted  management of  its 
system to a third party.21

     11.  The record indicates that NOCC, through its  contractor 
Tomba, is leasing mobile units for use on its public safety radio 
system to  customers and  contractors in  the Convention  Center.  
While NOCC claims that it leases its mobile units at a  ``nominal 
cost,'' we do not believe that such leases qualify as non-profit, 
cost sharing agreements within the meaning of Section  90.179(a).  
In this regard, there is  no demonstrated nexus between the  cost 
of the mobile units to  NOCC's customers and contractors and  the 
actual cost of the  system.  In addition,  NOCC rents its  mobile 
units with  no apparent  effort to  ensure that  only  authorized 
users (i.e.,  entities  themselves  eligible to  be  licensed  on 
public safety  frequencies)  have  mobile  units  and  that  only 
authorized communications (i.e., communications directly  related 
to  imminent  safety-of-life   or  property  and   communications 
directly related to  activities that make  the licensee  eligible 
for the license) take place on the system.  Finally, while it  is 
permissible for NOCC to hire Tomba to manage its system, it  does 
not appear that NOCC is exercising direct responsibility for, and 
control over, all actions taken by its contractor.   

     12.  Notwithstanding our findings with regard to NOCC, we do 
not believe that issuance of an Order to Show Cause is warranted.  
Two-Way has  not established  that NOCC  misrepresented facts  or 
lacked candor  in its  application for  the public  safety  radio 
station.22   From the facts in  the record before us, it  appears 
that NOCC arrived at its decision to make overly broad use of the 
public safety  system  after  its contract  with  Two-Way  ended.  
Moreover, the record  evidence does  not support  a finding  that 
NOCC intentionally  used its  public safety  radio system  in  an 
anti-competitive manner.  Accordingly, we deny Two-Way's Request.

     13.  As a result of our  review of this matter, we  conclude 
that Two-Way has not provided justification for our initiation of 
a revocation proceeding.  However, the record indicates that NOCC 
is in violation of Sections 1.903(a) and 90.179 of the Rules, and 
we believe that an admonishment is warranted.

     14.  Finally, we require, pursuant to Section 308(b) of  the 
Communications Act  of 1934,  as amended  (``Act''),23 that  NOCC 
submit a report to the Enforcement  Bureau within 30 days of  the 
release date of this Order demonstrating that it has brought  its 
activities with regard  to station WPJS469  into compliance  with 
the Commission's rules as  discussed herein.  NOCC's report  must 
be submitted in the form of an affidavit or declaration signed by 
a duly authorized representative of NOCC.24   

                       IV.  ORDERING CLAUSES 

     15.  Accordingly, IT IS ORDERED that NOCC IS ADMONISHED  for 
violating Sections 90.179 and 1.903(a) of the  Rules.

     16.  IT IS FURTHER  ORDERED that  the Request  for Order  to 
Show Cause filed by Two-Way Communications, Inc. IS DENIED.

     17.  IT IS FURTHER ORDERED that, pursuant to Section  308(b) 
of the Act, NOCC must submit the report described in paragraph 14 
no later than thirty (30) days  from the date of release of  this 
Order to:  Federal Communications Commission, Enforcement Bureau, 
Spectrum Enforcement Division, 445 12th Street, S.W., Washington, 
D.C. 20554, Attention:  Susan Magnotti. 

     18.  IT IS FURTHER ORDERED that, a copy of this Order  shall 
be sent  by  first  class  and  Certified  Mail,  Return  Receipt 
Requested, to counsel for New Orleans Convention Center,  Matthew 
P. Chenevert,  Office of  Legal  Counsel, 900  Convention  Center 
Boulevard, New Orleans, Louisiana, 70130, and to counsel for Two-
Way Communications,  Inc.,  Garret  R.  Hargrave,  Schwaninger  & 
Associates, P.C., 1331 H Street, N.W., Suite 500, Washington, DC, 


                         David H. Solomon
                         Chief, Enforcement Bureau

1  47 C.F.R.  90.179.
2  47 C.F.R.  1.903(a).
3  Letter to Kathy Berthot, FCC Enforcement Bureau, from  Matthew 
P. Chenevert,  Ernest  N.  Morial  New  Orleans  Exhibition  Hall 
Authority, July 25, 2003 (``Response to LOI'')
4  Response to LOI at page 2.
5  Two-Way is  the licensee of  radio stations WPRK456,  WPMM676, 
WPGI277, WPFZ997, and WPIT544.
6  Two-Way's Request at 5.
7  Id.
8  Two-Way's Request, Attachment E at page 1.
9  47 C.F.R.  90.20(a)(1).  
10 Response to LOI at page 3. 
11  Id.
12  Id.  at page  2.   According  to NOCC,  Two-Way's  principal, 
Lester Boeihm, personally prepared NOCC's application.  
13  Id.
14  Id.  at page  3.  NOCC  states that  the license  was  issued 
pursuant to 47 C.F.R.   90.20(a), which  provides in part   that 
governmental entities  are  eligible to  hold  a license  in  the 
Public Safety Service to operate radio stations for  transmission 
of  communications  essential  to  official  activities  of   the 
15  47 C.F.R.  90.179(f).
16  47  C.F.R.   90.179(a).   See  also 47  C.F.R.    90.179(g) 
(permitting licensees  authorized  to operate  radio  systems  on 
Public Safety Pool  frequencies designated  in   90.20 to  share 
their frequencies  with Federal  Government  entities on  a  non-
profit, cost sharing basis).  
17  47 C.F.R.  90.179(d).  The  agreements must be kept as  part 
of the station records.
18  47 C.F.R.  90.405(a)(1) and (2).  Testing is also  permitted 
under  90.405(3).
19  47 C.F.R.  90.403(a).
20  Id.
21  47 C.F.R.  90.403(b).
22      Indeed,  we  note  that  Two-Way's  principal  apparently 
prepared the application on behalf of NOCC.  Thus, any finding of 
misrepresentation or  lack of  candor by  NOCC might  also  raise 
questions as  to  Two-Way's  qualifications to  be  a  Commission 
23  47 U.S.C.  308(b).
24 Such affidavit or declaration should comply with Section  1.16 
of Rules, 47 C.F.R.  1.16, and be substantially in the form  set 
forth therein.