******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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) ORDER ON RECONSIDERATION Adopted: January 20, 1999 Released: January 21, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we address petitions filed by Fred Daniel d/b/a Orion Telecom (Orion) seeking reconsideration of decisions by the Wireless Telecommunications Bureau, Public Safety and Private Wireless Division (Division) and the Wireless Telecommunications Bureau, Public Safety and Private Wireless Division, 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, the petitions for reconsideration are denied. II. BACKGROUND 2. On January 16, 1997, Orion, which currently provides AMTS service along the Atlantic, Pacific, and Hawaii coasts, and is licensed to provide service along the Great Lakes, 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. 3. 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 AMTSs, and not individual AMTS stations, to serve navigable inland waterways. 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, so the Tucker and Mountain Park applications, which both proposed service to Lake Acworth, also had to be denied. On August 5, 1998, the Branch dismissed the other applications on the grounds that they proposed construction and operation of individual AMTS coast stations or multiple coast stations serving a waterway that could be served by a single station, and thus were defective in light of the Inland Memorandum Opinion and Order. 4. On August 10, 1998, Orion submitted additional information to the Branch regarding the Pineridge, Modesto, and Bosifort applications. The Branch chose to treat those submittals as petitions for reconsideration, and on August 12, 1998, concluded that the Modesto and Bosifort applications should not have been dismissed pursuant to the Inland Memorandum Opinion and Order, 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 contour overlapped the system's composite contour over land only, and the station would not serve any waterway for which the rules permit AMTS service. 5. Orion petitioned for reconsideration of the Inland Memorandum Opinion and Order on August 24, 1998, and for reconsideration of the Branch Letter on September 2, 1998. North Central LPTV, Inc. (North Central), licensee of a low power Channel 13 television station in Columbus, OH, and VideoIndiana Inc., licensee of a Channel 13 station in Indianapolis, IN, each filed an opposition to the petition for reconsideration of the Branch Letter on September 14, 1998. Orion replied to the oppositions on September 22, 1998. III. DISCUSSION 6. Orion contends that the Inland Memorandum Opinion and Order misinterpreted the AMTS rules. It first argues that the Division misinterpreted Section 80.54 of the Commission's Rules, which provides, "AMTS licensees will be issued blanket authority for a system of coast stations and mobile units (subscribers). AMTS applicants will specify the maximum number of mobile units to be placed in operation during the license period." The Inland Memorandum Opinion and Order noted that the rule refers to "a system of coast stations," and concluded that the rules authorize only systems consisting of more than one station. Orion contends that "the purpose of Rule Section 80.54 was not to require that an AMTS system consist of more than one base station, but, rather, to provide for the authorization under one call sign of both subscriber mobile units and one or more base stations under a single license." One problem with this argument is that it is contrary to the plain language of Section 80.54, which refers to "stations," not "one or more stations." Also, Orion appears to ignore the other Commission AMTS rules, which are cited in the Inland Memorandum Opinion and Order, that provide only for multi-station systems. Finally, we reject Orion's argument that the word "system" in Section 80.54 should be interpreted to have the same meaning as the word "system" in Section 90.7 of the Commission's Rules, which defines "Specialized Mobile Radio system" as "[a] radio system in which licensees provide land mobile communications services (other than radiolocation services) in the 800 MHz and 900 MHz bands on a commercial basis." Orion argues that, because the Specialized Mobile Radio (SMR) rules have been interpreted to permit single-station systems, the AMTS rules also should be interpreted to permit such systems. We conclude that the SMR rules' definition of "system" without reference to how many stations are required, as contrasted with the AMTS rules' expressed requirement of more than one station, indicates that the rules were crafted differently. As a result, we do not believe that the SMR rules are instructive regarding interpretation of the AMTS rules. 7. The multi-station requirement also can be inferred from Section 80.475(a) of the Commission's Rules, which provides that "AMTS applicants proposing to serve inland waterways must show how the proposed system will provide continuity of service along more than 60% of each of one or more navigable inland waterways. Inland waterways less than 240 kilometers (150 miles) long must be served in their entirety." Orion argues that the Division read too broadly the Commission's statement that this rule "illustrates the system concept in the AMTS. An applicant cannot get a license on AMTS frequencies for just one station; the proposed system must provide continuity along more than 60% of a navigable waterway within the authorized service area of the AMTS." Orion states that this apparent prohibition on single-station systems for inland waterways should be read in the context of that case, which involved rivers that could not be covered by a single station, and should not be read to prohibit single-station systems that entirely cover waterways that are less than 240 kilometers long. We disagree. In this connection, we note that the quoted passage is part of a general discussion of AMTS, and there is no indication that it applies only to the case at issue. Moreover, Orion seemingly ignores other Commission decisions, which are cited in the Inland Memorandum Opinion and Order, that also indicate that the AMTS rules authorize only multi-station systems. 8. Orion also contests the Inland Memorandum Opinion and Order's interpretation of the Commission's statement, when it authorized AMTS service nationwide, that the purpose of Section 80.475(a) was "to provide for integrated systems that offer coverage over marine shipping routes and to exclude from the AMTS band individual VHF stations," which the Inland Memorandum Opinion and Order cited in support of its conclusion that the AMTS rules authorize service only along waterways that cannot be served by a single station. Orion argues that the statement, in the context of the Commission's decision to retain the rule, should be read only as precluding individual stations that would divide a single waterway among multiple AMTS providers, and not as prohibiting single stations on waterways that can be covered by single stations. We disagree. There is no express statement in the Commission's discussion of this matter that indicates any change in its decisions regarding the use of AMTS spectrum on inland waterways. Moreover, the interpretation adopted by the Division furthers even the goal that Orion claims was the Commission's purpose--namely, to prevent single-station systems from obstructing the construction and operation of multi-station systems along nearby larger waterways. For example, granting Orion's Worthington application to serve Williams Lake and Hoover Reservoir could make it difficult for another carrier to provide AMTS service to the Scioto River, and granting the San Antonio application to serve Woodlawn Lake would obstruct coverage of the San Antonio River on the same frequencies. 9. In addition, Orion argues that the proposed Tucker and Mountain Park stations would be part of its East Coast system, and therefore should have been granted, just as the Modesto and Bosifort applications were granted because they would be part of Orion's West Coast system. Upon review of this argument, we conclude that any overlap between the service areas of those stations and stations included in Orion's East Coast system would be over land; therefore, we do not consider them part of Orion's East Coast system. Moreover, we note that the nearest Orion station is in Tallahassee, FL, over two hundred miles away, so it appears that the proposed stations' service areas would not overlap at all with the East Coast system's composite contour, and would not appear to serve a waterway for which the rules permit AMTS service. 10. Finally, Orion argues that, because it could not have anticipated the Division's decision, it should have been given an opportunity to amend the applications, or file additional, related applications, in order to bring them into conformance with the rules. We conclude that no purpose would have been served by allowing Orion to amend the applications prior to denial, because Orion has not identified any appropriate waterways that would be served sufficiently by the proposed stations without proposing additional stations for which it had not yet submitted applications. IV. CONCLUSION 11. For the reasons stated above, we deny Orion's petition for reconsideration of the Division's decision denying Orion's applications for AMTS stations at Denver, Tucker, and Mountain Park. We also deny Orion's petition for reconsideration of the Branch's decision dismissing its other inland applications. V. ORDERING CLAUSES 12. Accordingly, IT IS ORDERED that, pursuant to the authority of Section 4(i), 309(d)(2), 310(d), and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d)(2), 310(d), 405, and Sections 1.106 and 1.958 of the Commission's Rules, 47 C.F.R.  1.106, 1.958, the Petition for Reconsideration of the Memorandum Opinion and Order filed by Fred Daniel d/b/a Orion Telecom on August 24, 1998 IS DENIED. 13. IT IS FURTHER ORDERED that Orion's Petition for Reconsideration of the Branch Letter IS DENIED. 14. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau