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National Science & Technology Network PLMR Modification Order

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Released: March 25, 2013

Federal Communications Commission

DA 13-541

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

NATIONAL SCIENCE AND TECHNOLOGY
)
NETWORK, INC.
)
)

Licensee of Stations WPMM274 and WPMP967

ORDER ON FURTHER RECONSIDERATION AND ORDER OF MODIFICATION

Adopted: March 22, 2013

Released: March 25, 2013

By the Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1.
We have before us a petition for reconsideration1 and a protest2 filed by National Science
and Technology Network, Inc. (NSTN) of an Order on Reconsideration and Order Proposing
Modification
(Order Proposing Modification)3 that proposed to modify NSTN’s licenses for land mobile
Stations WPMM274 and WPMP967. For the reasons set forth below, we deny NSTN’s petition for
reconsideration and protest, and modify NSTN’s licenses for Stations WPMM274 and WPMP967 as
proposed.

II.

BACKGROUND

2.
NSTN’s above-captioned private land mobile radio (PLMR) stations operate on 12.5 kHz
offset frequencies in the 470-512 MHz band (T-Band) at, inter alia, San Rafael Hills, Sunset Ridge, Oat
Mountain, Monte Nido, and Castro Peak, California. Mobile Relay Associates (MRA) asked the
Commission to modify NSTN’s licenses for Stations WPMM274 and WPMP967 by deleting certain
frequencies that MRA asserted were in conflict with MRA’s authorizations.4 MRA requested
modification of the licenses on the grounds that certain frequency pairs were not properly coordinated
because, inter alia, they did not satisfy the interference protection criteria of TIA/EIA/TSB-88 (TSB-88).5


1 National Science and Technology Network, Inc. (NSTN) Petition for Reconsideration filed on November 9, 2012
(Petition). Mobile Relay Associates (MRA) filed an Opposition to Petition for Reconsideration on November 27,
2012 (Petition Opposition). NSTN filed a Reply to Opposition to Petition for Reconsideration on December 5,
2012.
2 See NSTN Protest of Order to Initiate Modification Proceedings filed on November 9, 2012 (Protest). MRA filed
an Opposition to Protest of Order to Initiate Modification Proceedings on November 27, 2012 (Protest Opposition).
NSTN filed a reply to opposition to Protest of Order to Initiate Modification Proceedings on December 4, 2012.
3 Mobile Relay Associates and National Science and Technology Network, Inc., Order on Reconsideration and
Order Proposing Modification
, 27 FCC Rcd 12332 (WTB MD 2012) (Order Proposing Modification).
4 See MRA Request to Initiate Modification Proceedings filed on August 21, 2003, supplemented September 29,
2003, October 28, 2003, May 26, 2004, June 2, 2004, October 24, 2006, and April 12, 2012.
5 See Filing Freeze to Be Lifted for Applications under Part 90 for 12.5 kHz Offset Channels in the 421-430 and
470-512 MHz Bands, Public Notice, 13 FCC Rcd 5942, 5942 (WTB 1997) (citing Letter from Larry A. Miller,
President, Land Mobile Communications Council (LMCC), to Daniel B. Phythyon, Esq., Acting Chief, Wireless
Telecommunications Bureau (Sept. 10, 1997) (LMCC Consensus)). The LMCC Consensus was submitted by the
(continued….)

Federal Communications Commission

DA 13-541

MRA also argued that the applications associated with the licenses in question did not comply with
Sections 90.187 and 90.313 of the Commission’s Rules6 and should not have been certified by the
frequency coordinator.
3.
On February 22, 2012, President Obama signed into law the Middle Class Tax Relief and
Job Creation Act of 2012 (Spectrum Act),7 which, among other things, requires the Commission to
conduct an incentive auction to recover a portion of the television broadcast spectrum.8 Part of that
spectrum (UHF television channels 14-20) includes frequencies on which the above-captioned PLMR
licenses operate. In addition, Section 6103 of the legislation provides that, not later than nine years after
the date of enactment, the Commission shall “reallocate the spectrum in the 470-512 MHz band (referred
to in this section as the ‘T-Band spectrum’) currently used by public safety eligibles as identified in
section 90.303 of title 47, Code of Federal Regulations” and “begin a system of competitive bidding
under section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)) to grant new initial licenses
for the use of the spectrum.”9 It also provides that “relocation of public safety entities from the T-Band
spectrum” shall be completed not later than two years after completion of the system of competitive
bidding.10
4.
On April 26, 2012, the Wireless Telecommunications Bureau and the Public Safety and
Homeland Security Bureau (the Bureaus) suspended the acceptance and processing of Part 22 and 90
applications for new or expanded use of the T-Band.11 The Bureaus concluded that while the
Commission considered issues surrounding future use of the T-Band, solicited input from interested
parties, and worked to implement the directives of the Spectrum Act, prudent spectrum management
dictated that they should stabilize the existing spectrum landscape by suspending the acceptance and
processing of T-Band licensing applications that could alter the landscape and thereby make
implementing the Act more difficult or costly.12 The Bureaus also waived the January 1, 2013 deadline
for PLMR licensees in the 470-512 MHz band to migrate to narrowband (12.5 kHz or narrower)
technology.13
(Continued from previous page)


LMCC in response to the Commission’s direction that the PLMR service frequency coordinators reach a consensus on
the applicable coordination procedures for the 12.5 kHz offset channels in the 470-512 MHz frequency band. See
Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies
Governing Them and Examination of Exclusivity and Frequency Assignment Policies of the Private Land Mobile
Services, Second Report and Order, PR Docket No. 92-235, 12 FCC Rcd 14307, 14330-31 ¶ 43 (1997). The LMCC
Consensus provides that an application shall not be certified if an incumbent or the applicant has unacceptable
interference of more than five percent reduction of the calculated service area reliability using the interference
criteria of TSB-88. See LMCC Consensus, Attachment at 2.
6 47 C.F.R. §§ 90.187, 90.313.
7 Pub. L. No. 112-96, 126 Stat. 156 (2012).
8 Id., § 6403.
9 Id., § 6103(a).
10 Id., § 6103(b), (c).
11 See Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau Suspend the
Acceptance and Processing of Certain Part 22 and 90 Applications for 470-512 MHz (T-Band) Spectrum, Public
Notice
, 27 FCC Rcd 4218 (WTB/PSHSB 2012).
12 Id. at 4218.
13 See Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended, Order, WT
Docket No. 99-87, 27 FCC Rcd 4213, 4215 ¶ 7, on recon., 27 FCC Rcd 14770 (WTB/PSHSB/OET 2012).
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Federal Communications Commission

DA 13-541

5.
Later that day, the Wireless Telecommunications Bureau’s Mobility Division (Division)
denied MRA’s modification request. The Division noted that it has broad discretion regarding such
modification requests, and concluded that, in light of the T-Band licensing suspension and possible future
relocation of T-Band licensees under consideration by the Commission, the public interest would not be
served by initiating modification proceedings with respect to NSTN’s stations at that time.14
6.
On May 29, 2012, MRA sought reconsideration of the Division’s decision. MRA stated
that it was experiencing harmful interference from NSTN’s operations and that the Division erred in
denying the modification request on the basis of the T-Band licensing suspension.15
7.
On October 2, 2012, the Commission released a Notice of Proposed Rulemaking seeking
comment on proposals to implement the Spectrum Act mandate to conduct an incentive auction of
broadcast television spectrum, but made no proposals regarding the reallocation and auction of T-Band
spectrum.16 The Commission stated that the T-Band would be addressed in a subsequent Public Notice
intended to advance the record on issues related to the technical, financial, administrative, legal, and
policy implications of the Spectrum Act for T-Band licensees.17
8.
On October 10, 2012, the Division granted MRA’s petition for reconsideration and
proposed to modify NSTN’s above-captioned licenses. The Division concluded that, in light of the
indefinite timetable for Commission action regarding the T-Band, the public interest would be served by
addressing MRA’s request.18 Division staff studied the interactions of the NSTN stations with preexisting
MRA stations and concluded that, in certain circumstances, the NSTN stations are within forty miles of
the MRA stations, there is spectral overlap between the stations, and the NSTN frequencies do not satisfy
the TSB-88 analysis.19 The Division determined that the coordination and eventual grant of the NSTN
applications were defective and that modification of the NSTN licenses was appropriate.20 NSTN sought
reconsideration and protested the proposed modification on November 9, 2012.
9.
On February 11, 2013, the Bureaus released a Public Notice seeking comment on issues
related to the technical, financial, administrative, legal, and policy implications of the Spectrum Act for
T-Band licensees.21

III.

DISCUSSION

10.
NSTN argues that the Commission’s statement in the Notice of Proposed Rulemaking
with respect to future proceedings on the T-Band did not justify the Division’s reconsideration of its
initial decision to deny MRA’s request, and that any license modification prior to Commission action


14 See Letter dated April 26, 2012 from Scot Stone, Deputy Chief, Wireless Telecommunications Bureau, Mobility
Division to David J. Kaufman, at 2.
15 See MRA Petition for Reconsideration filed on May 29, 2012, at 2-6.
16 See Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Notice of
Proposed Rulemaking
, GN Docket No. 12-268, 27 FCC Rcd 12357 (2012).
17 See id. at 12365 ¶ 19.
18 See Order Proposing Modification, 27 FCC Rcd at 12335 ¶ 8.
19 See id. at 12335 ¶ 9.
20 See id. at 12335 ¶ 10.
21 See Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau Seek Comment on
Options for 470-512 MHz (T-Band) Spectrum, Public Notice, PS Docket No. 13-42, 28 FCC Rcd 1130
(WTB/PSHSB 2013). Comments are due May 13, 2013, and reply comments are due June 11, 2013.
3

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DA 13-541

regarding the T-Band would be premature.22 We disagree. The Commission’s decision not to address the
T-Band in the Notice of Proposed Rulemaking was a changed circumstance that justified reexamination of
whether Commission action was sufficiently proximate that a proceeding to modify NSTN’s licenses
would be appropriate. That the Bureaus are still compiling a record regarding options for the T-Band
further supports the Division’s decision to proceed with respect to MRA’s request.
11.
NSTN also argues that MRA’s request was untimely, and should have been raised within
thirty days of the grant of the relevant applications.23 The Commission rejected this argument in a
proceeding addressing a request for modification of a different NSTN license in 2008.24 We will not
address it further.
12.
NSTN posits that the standard for whether modification should be granted is not simply
whether NSTN’s licenses satisfy the TSB-88 analysis, but rather whether, considering other factors,
modification is in the public interest.25 We agree, but we note that the Division’s decision to modify
NSTN’s licenses was not based solely on the defective frequency coordination, but also took into account
interference to MRA’s operations.26 We continue to conclude that, under the circumstances, modifying
NSTN’s licenses as proposed will serve the public interest. While modification of the licenses will affect
NSTN’s end-users,27 leaving the licenses unmodified would affect MRA’s end users.28 In light of the
effort involved in reprogramming the mobile units, however, we will delay the effectiveness of the
modification of the licenses for Stations WPMM274 and WPMP967 until ninety days after release of this
Order on Further Reconsideration and Order of Modification.29
13.
We find that Section 316(a)(1) of the Communications Act of 1934, as amended,
provides the appropriate vehicle for resolving this matter.30 Section 316(a) permits the Commission to
modify a station license if the action will promote the public interest, convenience, and necessity.31 In
light of the defective coordination and grant of NSTN’s applications, modification of the NSTN licenses
is appropriate. Specifically, NSTN’s license for Station WPMM274 will be modified by deleting
locations 4, 12, 13 entirely; and deleting frequencies 471.4250 MHz and 471.5000 MHz at location 2;


22 See Petition at 2-3; Protest at 7-8. NSTN also argues that the January 1, 2013 deadline for PLMR licensees to
migrate to narrowband technology renders MRA’s request moot. See Petition at 6; Protest at 5-6. As noted above,
however, the Bureaus waived that deadline for T-Band licensees.
23 See Petition at 4; Protest at 2.
24 See National Science and Technology Network, Inc., Memorandum Opinion and Order, 23 FCC Rcd 3214, 3219
¶ 10 (2008).
25 See Petition at 3-4; Protest at 2.
26 NSTN asserts that MRA’s evidence of interference was procedurally defective. See Petition at 4-5; Protest at 4-5.
NSTN has not demonstrated that it could not have made this argument earlier. Consequently, it may not make the
argument at this stage of the proceeding. See 47 C.F.R. § 1.106(c).
27 See Petition at 7; Protest at 3. We agree with MRA, however, that NSTN overstates the effect of the proposed
modification on its operations by failing to consider NSTN’s other facilities at these locations. See Protest
Opposition at 7-8.
28 See Petition Opposition at 5-6; Protest Opposition at 5-6.
29 Cf. National Science and Technology Network, Inc., Order of Modification and Order, 26 FCC Rcd 2067, 2071
¶ 12 (WTB MD 2011).
30 See 47 U.S.C. § 316(a)(1).
31 Id.
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Federal Communications Commission

DA 13-541

frequencies 471.4250 MHz, 472.1500 MHz, 472.7500 MHz, 472.8000 MHz, 472.8500 MHz, and
472.8750 MHz at location 5; frequency pairs 471.4250/474.4250 MHz and 471.5000/474.5000 MHz at
locations 8 and 9; and frequency pairs 471.4250/474.4250 MHz, 472.1500/475.1500 MHz,
472.7500/475.7500 MHz, 472.8000/475.8000 MHz, 472.8500/475.8500 MHz, and 472.8750/475.8750
MHz at locations 14 and 15. In addition, NSTN’s license for Station WPMP967 will be modified by
deleting frequencies 471.4500 MHz32 and 471.6000 at location 1; frequency 471.8000 MHz at location 2;
frequencies 471.4250 MHz and 471.9750 MHz at location 4; frequencies 471.4500 MHz, 471.6000 MHz,
471.8000 MHz, and 472.8750 MHz at location 5; frequencies 471.4250 MHz, 471.6000 MHz, and
471.8000 MHz at location 6; frequency pairs 471.4500/474.4500 MHz and 471.6000/474.600 MHz at
location 7 and 8; frequency pair 471.8000/474.8000 MHz at locations 9 and 10; frequency pairs
471.4250/474.4250 MHz and 471.9750/474.9750 MHz at locations 13 and 14; frequency pairs
471.4500/474.4500 MHz, 471.6000/474.6000 MHz, 471.8000/474.8000 MHz, and 472.8750/475.8750
MHz at locations 15 and 16; and frequency pairs 471.4250/474.4250 MHz, 471.6000/474.6000 MHz, and
471.8000/474.8000 MHz at locations 17 and 18.

IV.

CONCLUSION AND ORDERING CLAUSES

14.
After consideration of the record in this proceeding, we deny NSTN’s petition for
reconsideration. Additionally, we conclude that NSTN’s licenses for Stations WPMM724 and
WPMP967 should be modified as proposed.
15.
Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, the Petition for Reconsideration
filed by National Science Technology Network on November 9, 2012 IS DENIED.
16.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 316(a) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316(a), and Section 1.87 of the
Commission’s Rules, 47 C.F.R. § 1.87, the license for Station WPMM724 BE MODIFIED by deleting
locations 4, 12, 13; and deleting frequencies 471.4250 MHz and 471.5000 MHz at location 2; frequencies
471.4250 MHz, 472.1500 MHz, 472.7500 MHz, 472.8000 MHz, 472.8500 MHz, and 472.8750 MHz at
location 5; frequency pairs 471.4250/474.4250 MHz and 471.5000/474.5000 MHz at locations 8 and 9;
and frequency pairs 471.4250/474.4250 MHz, 472.1500/475.1500 MHz, 472.7500/475.7500 MHz,
472.8000/475.8000 MHz, 472.8500/475.8500 MHz, and 472.8750/475.8750 MHz at locations 14 and 15.
The modification is effective ninety days after release of this Order on Further Reconsideration and
Order of Modification.

17.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 316(a) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316(a), and Section 1.87 of the
Commission’s Rules, 47 C.F.R. § 1.87, the license for Station WPMP967 BE MODIFIED by deleting
frequencies 471.4500 MHz and 471.6000 at location 1; frequency 471.8000 MHz at location 2;
frequencies 471.4250 MHz and 471.9750 MHz at location 4; frequencies 471.4500 MHz, 471.6000 MHz,
471.8000 MHz, and 472.8750 MHz at location 5; frequencies 471.4250 MHz, 471.6000 MHz, and
471.8000 MHz at location 6; frequency pairs 471.4500/474.4500 MHz and 471.6000/474.600 MHz at
location 7 and 8; frequency pair 471.8000/474.8000 MHz at locations 9 and 10; frequency pairs
471.4250/474.4250 MHz and 471.9750/474.9750 MHz at locations 13 and 14; frequency pairs
471.4500/474.4500 MHz, 471.6000/474.6000 MHz, 471.8000/474.8000 MHz, and 472.8750/475.8750
MHz at locations 15 and 16; and frequency pairs 471.4250/474.4250 MHz, 471.6000/474.6000 MHz, and


32 In a typographical error, the Order Proposing Modification misstated this frequency as 475.4500 MHz. See
Order Proposing Modification
, 27 FCC Rcd at 12332 ¶ 1, 12334 ¶ 10, 12335 ¶ 16. The reference clearly is to
frequency 471.4500 MHz, because frequency 475.4500 MHz is neither assigned to Station WPMP967 nor available
for base station operations. See 47 C.F.R. § 90.311(a).
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DA 13-541

471.8000/474.8000 MHz at locations 17 and 18. The modification is effective ninety days after release of
this Order on Further Reconsideration and Order of Modification.
18.
IT IS FURTHER ORDERED that this Order on Further Reconsideration and Order of
Modification SHALL BE SENT by certified mail, return receipt requested, to (1) National Science and
Technology Network, Inc., Attn: Ted S. Henry, 2050 S. Bundy Drive, Suite 285, Los Angeles, CA 90025;
and (2) Alan M. Lurya, 18662 MacArthur Blvd., Suite 200, Irvine, CA 92612.
19.
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
Scot Stone
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau
6

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