WPC 2?B JCourier4#Xj\  P6G;9XP#3|xix6X@`7X@eX@CourierCourier Bold#Xj\  P6G;+XP#2,q ZXCourierTimes New RomanHP LaserJet 4M (PCL) LPT2-8010l)HL4MPCAD.PRSx  @\KeX@|D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd<?xxx,ix6X@`7X@?xxx,x `7X<R&HHH,>K,H6X@`7h@ #)/5;AGMS2^Zn +3|x HP LaserJet 4Si/4Si MXlpt2HPLA4SMX.WRSx  @,,XSX@Courier New (TT)Courier New (Bold) (TT)2X/;T?xxxXVbXx6X@DQX@6?xxxXoXx `NQXR&HHHXhH6X@DQh@2@+P +3|x Courier 2    $//Order,Viking Dispatch waiver,DA 9515 m 46//$ m  $/90.621 Selection and assignment of frequencies/$ m   ?< m ' Before the 0 FEDERAL COMMUNICATIONS COMMISSION  ? <LWashington, D. C. 20554 ă DA 951546 In the Matter of ) ) Requests of Viking Dispatch ) Services, Inc. for Rule Waiver ) and Associated Applications. )  ? <H5 ORDER  ?H <Adopted: July 7, 1995 Released: July 7, 1995  ?< xBy the Chief, Wireless Telecommunications Bureau:  ?h<,  I. INTRODUCTION ă  ?< x 1. On December 7, 1994, Viking Dispatch Services, Inc., (Viking) filed (i) a request for waiver (Waiver Request I) of certain Part 90 rule sections and (ii) associated applications. It proposes to construct up to forty 900 MHz Business Radio (Business) and Industrial/Land Transportation (I/LT) channels at each of fortytwo locations in the United States. On March 29, 1995, Viking filed a second waiver request (Waiver Request II) to expand the proposed systems to fiftyone additional markets. On April 14, 1995, the Commission released a Public Notice inviting  ?<interested parties to comment on Viking's requests for waiver.\qI ?X<ԍ Public Notice, DA 95826, released April 14, 1995.\ Ten comments and four replies were filed in response to the  ?<Public Notice.` XqI ?x<ԍ Industrial Communications and Electronics, Inc., OneComm Corporation, Motorola, Inc., Fisher Communications, Inc., Industrial Telecommunications Association, Inc., Geotek Communications, Inc., Nextel Communications, Inc., UTC The Telecommunications Association, Potomac Corporation, and AnheuserBusch Companies, Inc. filed timely comments in the proceeding. Timely reply comments were filed by the American Petroleum Institute, Spectrum Resources, Inc., and Viking. Viking also filed Further Reply Comments. Reply comments submitted by the American Mobile Telecommunications Association, Inc. were not timely filed, and are not being considered in this proceeding. All commenters opposed the grant of Viking's requests for waiver. For the reasons indicated below, Viking's waiver requests are denied.  ?<h II. DISCUSSION ă "x ,,,$"Ԍ ?x< x2. Requests for Waiver. Viking intends to be the licensee"x ,,,$" of the proposed systems. The users, however, would be Part 90"x ,,,$" eligibles. Viking proposes to operate the systems on a nonprofit, costshared basis. Viking requests the waiver of three Part 90 rules in order to permit its operation of the contemplated system. First, Viking states that a waiver of 47 C.F.R.  90.621(a)(1)(iii) is needed because Viking desires to be  ?<the licensee for greater than twenty channels per market.\ ?@<ԍ Waiver Request I at 2, and Waiver Request II at 3.\ Second, Viking requests a waiver of 47 C.F.R.  90.617(b) so that  ?x<all channels could be shared by Business and I/LT eligibles.\xX ?` <ԍ Waiver Request I at 3, and Waiver Request II at 3.\  ?@<Finally, Viking requests a waiver of 47 C.F.R.  90.631(g)x@ ? <ԍ Under Section 90.631(g), only remote stations of wide area systems licensed in the Police, Fire, Local Government, Highway Maintenance, Forestry Conservation, Special Emergency, Telephone Maintenance and Power Radio Services may be authorized on a primary basis. Remote stations of wide area systems in all other services will be authorized only on a secondary, noninterference basis to cochannel licensees. so that it can have primary site protection for its initial  ?<authorization in each geographic area.@(  ?<ԍ Waiver Request I at 3.@ Viking urges the Commission to grant the waiver requests so that it can provide dispatch services to a wide geographic area. Viking believes  ?( <that there is a demand for such dispatch services.w(  ?p<ԍ Waiver Request I at 2, 1112, and 20, and Waiver Request II at 1112 and 17.w  ? <x3. Because of the proposed system's size and complexity, Viking also seeks an extended implementation schedule for construction of its facilities and confirmation that it may load  ?<its systems over a greater period of time than 5 years.\ ?<ԍ Waiver Request I at 2, and Waiver Request II at 3.\ Viking states that the proposed systems will be a private mobile radio service (PMRS), not a commercial mobile radio service(CMRS), because the systems will not be interconnected with the public switched network, will not be available to the general public,  ?<and will not be for profit.\  ?(#<ԍ Waiver Request I at 5, and Waiver Request II at 5.\ The costsharing arrangements will be evidenced by written agreements between the users and Viking.  ?P< x4. Comments. At the crux of the Viking proposal is its request to operate on up to forty Business and I/LT channels per market. The commenters were unanimous in their opposition to allowing a single licensee, such as Viking, access to such a substantial portion of spectrum. The arguments can be divided into four general categories: lack of adequate showing,"80 ,**" depletion of Business and I/LT pools, similarity to a CMRS, and motive. x5. Representative of the commenters who argue that Viking has not made an adequate showing is Industrial Communications &  ?<Electronics, Inc. (IC&E). IC&E asserts that Viking has failed to adequately show that there is a demand for the subject dispatch  ?x<service.= x ?<ԍ IC&E Comments at 3.= Viking's proposal, IC&E alleges, is not predicated on any documented, current, unsatisfied demand for 900 MHz dispatch  ?<capacity.D X ? <ԍ IC&E Comments at 11.D In particular, it notes that Viking has not  ?<specified a single potential user.C  ?H <ԍ IC&E Comments at 3.C Commenters, such as Motorola, Inc. (Motorola), allege that the proposal is purely speculative as Viking appears to hope that given large quantities of spectrum, and an extended implementation period, sufficient  ? <numbers of customers can be enlisted.` x ?<ԍ Motorola Comments at 8, and IC&E Comments at 12.` In Motorola's view, Viking has not explained why it cannot proceed in accordance with existing policies and rules and acquire one channel per market, load that channel and seek additional channels when warranted. Potomac Corporation (Potomac) raises objections, similar to  ?<Motorola's, concerning enlisting potential customers.C ?p<ԍ Comments of Potomac at 6.C UTC, The Telecommunications Association (UTC) contends that no need at all has been demonstrated for the proposed shared system in the 93  ?0<specified markets.<0 ?X<ԍ UTC Comments at 5.<  ?< x6. Several commenters raise the spectre of depletion of the Business and I/LT frequency pools, if the Viking waiver requests are granted. Industrial Telecommunications Association, Inc.  ?<(ITA), alleges that Viking's proposal raises the possible depletion of a band that is instrumental in serving the current and future spectrum requirements in the land mobile radio  ?p<services.<p(  ?(#<ԍ ITA Comments at 7.< It contends that permitting the use of forty 900 MHz channels by one licensee would essentially deplete the remaining Business and I/LT frequency pools leaving only a handful of  ?<these channels available.N  ?'<ԍ ITA Comments at 7.N The American Petroleum Institute  ?<(API) voices the same concerns.EH  ?h)<ԍ Reply Comments of API at 3.E AnheuserBusch Companies, Inc.",**" (Anheuser), also is concerned that Viking's occupation in the designated markets could unfairly reduce or eliminate the ability  ?<of licensees, like itself, to build and expand its systems.A ?<ԍ Anheuser Comments at 4.A x7. Several commenters such as Nextel Communications, Inc. (Nextel) argue that granting Viking's request would authorize a CMRS system on channels which are allocated for private, internal communications use while avoiding regulation as a common  ?@<carrier.C@X ?( <ԍ Comments of Nextel at 11.C OneComm Corporation (OneComm) states that Viking's request, taken as a whole, demonstrates that the proposed system may actually involve CMRS and that it is not just a private,  ?<notforprofit venture.C ?<ԍ Comments of OneComm at 4.C Spectrum Resources, Inc. (Spectrum) also argues the Viking proposed system would be the functional  ?( <equivalent of a CMRS.J( x ?0<ԍ Reply Comments of Spectrum at 1.J x8. Motive is also a concern raised by those commenting on  ? <the waiver request. IC&E asserts that Viking has not provided a rational explanation as to why it would undertake to construct systems involving large amounts of capital without any  ?<possibility of reaping any profit from the enterprise.C ?p<ԍ IC&E Comments at 8.C  ?<Opponents allege that Viking is in some way affiliated with the E.F. Johnson Company (EFJ), and that this relationship has a  ?0<questionable effect on Viking's proposal.l0 ?X<ԍ Comments of Nextel at 5 and 6, and comments of OneComm at 3 and 4.l Nextel, in particular, sees the EFJ affiliation as a forprofit sale or lease of EFJ radio equipment to those entities sharing the system. Nextel alleges that it is an opportunity to gain an  ?P<equipment monopoly.AP  ? <ԍ Nextel Comments at 67.A In its reply comments, Viking affirms that it has an affiliation with EFJ a radio equipment manufacturer and that its intention is to use EFJ's analog and digital  ?<equipment in its systems.M  ?$<ԍ Viking's Reply Comments at 5 and 6.M Viking believes that the use of such equipment will cause many entities with existing and future communications requirements to share the system that it will construct. x9. The commenters also oppose Viking's other requests. IC&E, for example, states that the Commission should not give"X,** "  ?<Viking full cochannel protection for every site.A ?X<ԍ Comments of IC&E at 15.A Motorola opposes Viking's proposed extended implementation schedule saying  ?<that Viking does not plan to implement novel technology.DX ?x<ԍ Comments of Motorola at 8.D  ? <x10. Decision. The record in this case does not support granting Viking's waiver requests. To obtain a waiver of our rules, a petitioner must demonstrate that its circumstances are unique, that good cause exists to justify the requested relief, and there is no reasonable alternative solution(s) within the  ?<existing rules.  ? <ԍ 47 C.F.R.  90.151. See Northeast Cellular Telephone Company v. FCC, 897 F. 2d 1164 (U.S. App. D. C. 1990), in which the Court held that granting a waiver in the absence of good cause is improper. These criteria have not been met. x11. At the crux of Viking's proposed system is the request for waiver of Section 90.621 (a)(1)(iii) to permit it to use up to 40 channels per market. This section states that authorizations may be granted for up to 20 channels at a time. Its purpose is to prevent warehousing of channels in order to ensure that spectrum is used in an efficient manner. x12. The Commission does not automatically assign to license applicants for trunked or other PMRS systems the maximum number of channels available under the rules. Rather, assignments are made on the basis of a loading criterion of 100 mobile stations  ?0<per channel.C0 ?<ԍ 47 C.F.R.  90.631(a).C Viking does not provide any information regarding mobile loading data that would warrant assigning even the twenty channels allowed under our rules, let alone twice the permitted level of channel assignments. Rather, Viking indicates that currently it does not know to which markets it will provide service, nor does it know how many channels it will use in those  ?<markets.F`  ? <ԍ Rule Waiver Request II at 6.F x13. Viking asserts that its system would assist Part 90 eligibles in meeting their dispatch communications requirements  ?<in an economical and efficient fashion.N   ?%<ԍ Rule Waiver Request I at 11 and 12. N It contends that the proposal is superior to the authorization of individual systems  ?<to individual licensees.F!  ?(<ԍ Rule Waiver Request I at 12.F However, Viking provides no evidence to buttress the validity of these assertions. In fact,"X!,** " commenters dispute both the need for and the wisdom of Viking's proposed communications system. As noted by several commenters, many private entities have no interest in sharing their internaluse only communications with third parties. These private entities often need to establish and control their own communications facilities, in part, to ensure the security of their business communications. Further, the record indicates that private users have significant concerns about the proposal's costeffectiveness. Viking proffers no documentation indicating that any individuals or entities exist that need or, for that matter, want the dispatch services envisioned by Viking; let alone an appropriate showing of need to satisfy our loading  ?` <rules.C"`  ? <ԍ 47 C.F.R.  90.631(a).C No affidavits indicating interest in Viking's proposal  ?( <are offered.# ( X ?<ԍ See Hope Broadcasting Co., 56 FCC 2d 65, 67 (1975), in which the Commission, in denying a waiver request, stated that the request failed to show how the public interest would be served by the grant of an exemption from the rules. Further, even though public notice of the waiver requests was given, no support, from industry or otherwise, for Viking's proposal has been forthcoming. In fact, commenters were  ? <unanimous in opposing the rule waiver requests.  ?<x 14. Spectrum available for private internal radio communications is both scarce and valuable. It is for that reason that many channels allocated for PMRS use are assigned on a shared, rather than on an exclusive, basis. Particularly troublesome in this context is the number of markets specified by Viking because grant of the waivers would adversely affect other users who would find few channels remaining for private internal communications systems. For example, one commenter contends that if the applications and waivers were granted, two major markets, Boston and South Florida, would have very few remaining 900 MHz  ?<channels available for the use of other licensees.@$@ ?<ԍ Comments of IC&E at 3.@ Further, favorable action based on the sparse information submitted could result in a flood of similar requests. This in turn could further reduce or eliminate 900 MHz spectrum for traditional PLMR systems. x15. Waivers of Commission rules are warranted where there are unique circumstances present. No such showing has been made in this case. Viking has failed to indicate why its situation is different from other license applicants seeking to operate private dispatch services. Neither uniqueness in technological capabilities nor in any other aspect of the proposal has been shown. Furthermore, if we grant Viking's request for forty channels, it desires an extension of the implementation schedule in constructing its facilities, as well as relief from current loading requirements. Based on these additional requests, it "!$,**P(" appears that Viking is not currently prepared to commence its proposed endeavor. x16. In addition, there are alternatives to Viking's proposal that could meet its needs. Current rules permit the assignment of additional channels when mobile loading indicates a need. Also, as Fisher Communications, Inc. (Fisher) suggests, 900 MHz dispatch service can be provided in markets throughout the country on a gradual basis by organizing trunked community  ?<repeaters wherever demand is identified.B% ?` <ԍ Comments of Fisher at 5.B Finally, Viking could obtain the amount of spectrum it needs in the 900 MHz Specialized  ?<Mobile Radio band through the Commission's auction process.&XX ? <ԍ Second Report and Order and Second Further Notice of  ?H <Proposed Rule Making, PR Docket No. 89553, FCC 95159, adopted April 14, 1995 and released April 17, 1995. Viking has not addressed why one or more of these alternatives could not be used. x17. In view of spectrum scarcity, there is a substantial burden on any petitioner, seeking waiver of the rules concerning the number of channels assigned on either a shared or an  ?<exclusive basis, to show why the rule should be waived.'Xx ?<ԍ See Industrial Broadcasting Co. v. FCC, 437 F. 2d 680 (D.C.) (1970), for a discussion of the heavy burden imposed on one seeking a rule waiver. Viking does not meet this burden. Neither good cause nor uniqueness of circumstances has been shown to exist in this case. Since the public interest would not be served by grant of the waiver request, it is denied. In view of our decision with respect to a waiver of Section 90.621(a)(1)(iii), there is no need to rule on Viking's other requests for rule waiver as they were contingent on a favorable outcome on the request for waiver of Section 90.621(a)(1)(iii). Nor, in light of this decision, is there any "P',**`" need to consider the significance, if any, of the relationship between Viking and EFJ or if, as argued, the proposed system is the functional equivalent of CMRS.  ? < III. ORDERING CLAUSE ă x18. Accordingly, in view of the foregoing, the requests for waiver filed by Viking Dispatch Services, Inc. ARE DENIED and the  ?@<associated applications ARE DISMISSED.  ?<  FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney  ? < Chief, Wireless Telecommunications Bureau  ?H < "h)',**1"ԌMJDePont/FLThyden:cg:pwd j:\ssd\per\waivers\part90.wai\vo3.wai