NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) Teletrac License, Inc. ) Request for Waiver of Section ) 90.363(a) of the Commission's Rules) ORDER Adopted: October 11, 1996; Released: October 15, 1996 By the Chief, Wireless Telecommunications Bureau: 1. On June 28, 1996, Teletrac License, Inc. filed a request for waiver of the two-kilometer site relocation provisions set forth in Section 90.363(a) of the Commission's Rules, 47 C.F.R.  90.363(a), to relocate its transmitter sites for its grandfathered Location and Monitoring Service (LMS) facilities in Milwaukee, Wisconsin (WPAP 222), Orlando, Florida (WPBY 764) and Sacramento, California (WPDJ 217). Teletrac seeks to move these sites beyond the two-kilometer radius of the originally licensed sites, which is the limit established in Section 90.363(a). Teletrac submits that in preparing to build out its grandfathered multilateration LMS system, it has determined that three of its originally licensed transmitter sites, located in the above cities, are unavailable, and it cannot locate acceptable alternative sites within a two-kilometer area. 2. With respect to Milwaukee, Teletrac is licensed for a single site. It claims that there is no room available at the Milwaukee site and that owner of site is not amenable to leasing space. Teletrac submits that it is able to find only one site that had the technical attributes it wanted and whose owner is willing to lease space. That site is 17.05 kilometers from the originally licensed site. Teletrac concedes that the site would increase its coverage area, but submits that because the site is near Milwaukee's shoreline, at least half of the increased footprint would be over Lake Michigan. In addition, the new site is 380 feet higher than the original site because the new site is atop an office building. 3. Teletrac's authorization for Orlando consists of three transmitter sites. Teletrac has discovered that one of the sites does not exist, and that no sites exist within two kilometers of that site. It submits that it has located an alternate site and that the owner is willing to lease space. That site is 3.78 kilometers away from Teletrac's original site. Teletrac asserts that this site will provide coverage of Orlando similar to the originally licensed site. 4. In Sacramento, Teletrac's authorization consists of six transmitter sites. Teletrac asserts that one of the sites, at McClellan Air Force Base, is inaccessible due to the refusal of the Air Force to lease space. Teletrac notes that most of the two-kilometer radius of the original site falls within the boundaries of the Air Force Base. It accordingly seeks to relocate to a site 4.9 kilometers away from the originally licensed site. 5. In opposition to Teletrac's waiver request, Metricom, Inc. submits that the Commission adopted the 2 km site restriction only after significant controversy and careful consideration. It also notes that Teletrac filed a petition for reconsideration of the site relocation restriction, which was denied, and that Teletrac has filed a petition for reconsideration of that denial. Metricom further argues that Teletrac has not presented unique circumstances sufficient to justify a waiver, as required by Section 90.151 of the Commission's Rules, 47 C.F.R.  90.151, particularly since the Commission already addressed the issue of unavailability of transmitter sites in the First Order on Reconsideration in PR Docket 93-61. Similarly, the Part 15 Coalition filed an Opposition asserting that the waiver request mirrors Teletrac's petition for reconsideration and that the Teletrac proposal would undermine the Commission's grandfathering rules. Teletrac submits in its Reply that it is uncontroverted that Teletrac's waiver request is de minimis, and that Metricom does not attempt to address the detailed showings made in Teletrac's petition. Teletrac further argues that Metricom does not explain what harm it could suffer due to the proposed site relocations. 6. Discussion. In the First Order on Reconsideration, the Commission considered and denied a request by Teletrac and others to expand the two-kilometer site relocation restriction of Section 90.363(a) to ten miles. The Commission noted that the two-kilometer limitation was based on the benchmark established in the CMRS Third Report and Order for determining whether an application for a site change of a CMRS facility is to be treated as a modification application or as an initial application for the purpose of determining eligibility for competitive bidding procedures. Because Teletrac's request is based on three specific sites out of more than 65 for which it is authorized, we do not agree with Metricom and Pinpoint that the waiver petition is a misplaced attempt at reconsideration of the rule. Indeed, our action on Teletrac's request in no way is intended as a precursor to our disposition of its petition for reconsideration of the First Order on Reconsideration. 7. Pursuant to Section 90.151 of the Commission's Rules, a Part 90 provider requesting a rule waiver must meet two criteria. First, it must show that unique circumstances are involved. Second, it must show that there is no reasonable alternative solution within existing rules. Further, a waiver of the Commission's Rules is, in general, appropriate "only if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest." Teletrac contends that it made diligent efforts to find alternate sites in Milwaukee, Orlando and Sacramento, and that unique circumstances exist that prevent it from locating acceptable alternative sites within the two-kilometer radius required by Section 90.363(a). It submits that the proposed alternate sites were selected to maintain adequate system coverage while 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. 8. We are satisfied that Teletrac has met the Part 90 waiver criteria with respect to Orlando and Sacramento, and that such a waiver would be in the public interest as it would facilitate service to customers in those areas. Pursuant to our own engineering analysis, we have determined that the proposed transmitter site relocations are de minimis in distance (3.78 km and 4.9 km, respectively) and will not have a significant effect on the coverage area of either the Orlando or the Sacramento system. We do not believe, however, that a grant of the requested waiver for Milwaukee is warranted. The proposed 17.05-kilometer relocation would substantially change the coverage area of Teletrac's system to include a much more populous area than Teletrac would have been able to reach using its original transmitter site. Permitting such a significant change would be contrary to our intention in grandfathering existing multilateration LMS licenses that were not yet constructed, which was to give parties that had already conceived their systems a chance to build them out before the institution of wide-area licensing via competitive bidding. Further, Teletrac has available to it the reasonable alternative of bidding for new spectrum if it seeks to expand its Milwaukee system. While the same argument could be made regarding the Orlando or Sacramento proposals, we believe that those relocations are so minor that it would not be reasonable for us to require Teletrac to delay initiation of service pending the outcome of competitive bidding for those areas. The Milwaukee proposal, however, is distinguishable due to the distance of the move and the change in coverage, and we believe that requiring Teletrac to engage in competitive bidding for that area is a reasonable alternative to granting the waiver. 9. 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. 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. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar Chief, Wireless Telecommunications Bureau