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 Requests for Waiver of the 800 MHz Specialized Mobile Radio Application Freeze ) ) ) ) ORDER Adopted: October 23, 1996 Released: October 23, 1996 By the Chief, Wireless Telecommunications Bureau: I. Introduction 1. In this Order, we address approximately 3,300 waiver requests by 800 MHz Specialized Mobile Radio ("SMR") licensees seeking to waive our freeze on acceptance of applications for 800 MHz SMR category channels. The requests were filed pursuant to the waiver procedure established by the CMRS Third Report and Order for adding sites within a licensee's existing coverage area during the application freeze. We direct the Bureau's Licensing Division to grant waiver requests to the extent that the applicants seek to modify their systems within their respective aggregate geographic footprints established by previously constructed facilities with loading of at least seventy mobiles per channel ("aggregate loading"). Thus, applications associated with the waiver requests will be granted to the extent that they are for sites within an existing geographic footprint and are on aggregately loaded channels otherwise licensed to the applicant at constructed facilities within that footprint. To the extent that these requests for waiver of the application freeze are for geographic expansion beyond the applicants' existing footprint, or for use of channels that are not aggregately loaded, we direct the Licensing Division to deny the requests. II. Background 2. In the CMRS Third Report and Order, adopted August 9, 1994, the Commission concluded that the 800 MHz SMR service should be licensed on a geographic area basis, with competitive bidding used to resolve mutually exclusive applications. It reasoned that geographic licensing of 800 MHz SMR services would promote competition among CMRS licensees, and thus that, it should replace the Commission's traditional site-by site licensing approach. In light of the fundamental changes proposed for the licensing of the service, the Commission concurrently suspended acceptance of new applications for 800 MHz SMR category channels pending adoption of new service and auction rules. 3. In establishing the application freeze, however, the Commission also created a waiver mechanism by which licensees could obtain additional authorizations notwithstanding the freeze. Specifically, the Commission stated that it would consider requests for waiver of the freeze upon a showing that the particular application affected coverage "solely within a geographic area and on a frequency channel that already is licensed permanently to the applicant(s), i.e. there is no infringement of new spectrum or previously uncovered geographic areas." III. Discussion 4. We have received approximately 3,300 waiver requests pursuant to the procedure established in the CMRS Third Report and Order. The majority of these requests are by SMR licensees who had previously obtained extended implementation authority to construct wide-area systems pursuant to the Commission's 1991 Fleet Call decision and the 1992 Private Radio Bureau's Weisman Letter or under Section 90.629 of the Commission's rules, and were in the midst of implementing their systems at the time the freeze was imposed. As a result of the application freeze, these licensees were unable to continue filing applications to replace existing high-powered sites with multiple low-powered sites. As discussed further below, we grant the waivers to the extent required to allow these licensees to modify their systems within the aggregate geographic footprints established by constructed facilities with aggregate loading. 5. In granting the waivers, we apply the standards established in Fleet Call and the Weisman Letter, which defined the rights of licensees developing wide-area SMR systems at the time of the CMRS Third Report and Order. Under the criteria set forth in these decisions, the Commission allowed SMR licensees to apply for channels needed to develop wide-area systems provided that such channels were within the geographic footprint established by the licensee's previously constructed stations, and that the licensee had aggregate loading. In processing such applications, the Bureau considered the footprint to be the geographic area defined by aggregating the contiguous and overlapping service areas of stations that were (1) constructed and placed in operation, and (2) currently licensed to or managed by the applicant. 6. As a result of the Fleet Call/Weisman policy, SMR licensees who were granted extended implementation authority obtained the de facto right for the duration of the construction period to add sites anywhere within their geographic footprint on any channel with aggregate loading previously licensed at an operating site within the footprint. However, any site or channel that ultimately became part of the licensee's system would ultimately require a separate authorization. Thus, the freeze prevented SMR licensees in the midst of implementing their systems from applying for permanent authorizations needed to operate systems in their final configuration. 7. The CMRS Third Report and Order established a waiver policy under which 800 MHz licensees would be allowed to make system modifications provided that such modifications did not expand the licensee's coverage into "new spectrum or previously uncovered geographical areas." In so doing, the Commission expressly noted that the waiver mechanism could be used by licensees seeking to reconfigure existing systems by replacing single high-power sites with multiple low power sites in the same area. We conclude that the requests for waiver of the application freeze should be granted to the extent that they request system modifications consistent with the standards set forth in the Fleet Call and Weisman orders. Accordingly, we direct our Licensing Division to process these applications based on the Fleet Call/Weisman criteria. 8. We note that since the filing of these waiver requests the Bureau has processed over 40,000 SMR applications that were pending at the time the freeze was imposed. In addition, on December 15, 1995, the Commission adopted the First Report and Order, Eighth Report and Order and Second Further Notice of Proposed Rule Making in PR Docket 93-144, which set forth a new framework for licensing of the 200 contiguous 800 MHz SMR category channels, and sought comment on proposed service and competitive bidding rules for the lower 80 SMR and General Category channels. In the 800 MHz First Report and Order, the Commission provided that on the upper 200 channels, incumbent licensees could add new sites without prior notice to the Commission, provided that such sites are located within the 22 dBu contour of an existing site and that operation of the new site does not expand that contour. In addition, the Commission sought comment on similar proposals for the lower 80 and General Category channels. 9. Because we are processing the waiver requests under the rules in effect at the time of the CMRS Third Report and Order, we will use the service area definition in the Fleet Call/Weisman orders, not the 22 dBu contour definition established by the 800 MHz First Report and Order, to define the footprint of these applicants. We note however, that SMR licensees on the upper 200 channels may now modify their facilities within the 22 dBu contour without a waiver. Finally, because the processing of the backlog and the decisions in the 800 MHz First Report and Order have provided SMR operators with relief from the freeze that was not available at the time of the CMRS Third Report and Order, we conclude that no further waiver requests will be entertained under the waiver procedures established therein. IV. Conclusion 10. For the reasons stated above, we direct the Licensing Division to process the pending applications consistent with this Order. V. Ordering Clauses 11. Authority for issuance of this order is contained in Section 4(i), 257 and 303 (r) of the Communications Act of 1934, as amended, 47 U.S. C.  154 (i), 257, and 303(r), and pursuant to authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331; 12. IT IS HEREBY ORDERED that the Licensing Division is directed to process the pending requests by 800 MHz SMR licensees for waiver of the application freeze in accordance with this Order. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar, Chief, Wireless Telecommunications Bureau