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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 )
MEMORANDUM OPINION AND ORDER
Adopted: April 23, 2004 Released: April 27, 2004
By the Chief, Enforcement Bureau:
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
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
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,
FEDERAL COMMUNICATIONS COMMISSION
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.
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.
12 Id. at page 2. According to NOCC, Two-Way's principal,
Lester Boeihm, personally prepared NOCC's application.
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).
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