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N.Y. Dept. of Health Petition for Licensing Reconsideration Granted

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Released: May 4, 2011

Federal Communications Commission

DA 11-623

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
NEW YORK DEPARTMENT OF HEALTH
)
File Nos. 0004525958 and 0004525959
AND MENTAL HYGIENE
)
)
Petition for Reconsideration of Grant of Licenses
)
for Station Call Signs WQNE923 and WQNE927
)

ORDER ON RECONSIDERATION

Adopted:

April 6, 2011

Released:

April 6, 2011
By the Chief, Policy Division, Public Safety and Homeland Security Bureau:
1.
Introduction. On February 11, 2011, the Port Authority of New York and New Jersey
(Port Authority) filed a petition for reconsideration1 of a Commission action granting two applications2
for authority to operate Stations WQNE923 and WQNE927 filed by the New York Department of Health
and Mental Hygiene (Health Department). For the reasons set forth below, we grant the petition for
reconsideration in part, set aside the Health Department's authorizations to operate Stations WQNE923
and WQNE927, and return the Health Department's applications to pending status.
2.
Background. At the time of the September 11, 2001, terrorist attacks on the World Trade
Center, the Port Authority was licensee for a number of stations located at the World Trade Center,
including microwave Stations WNEE495, WNEE496 and WPNI363.3 Pending reconstruction of the
World Trade Center, the Port Authority has requested a series of consecutive waivers of the one-year
construction period and of the Commission's rules governing discontinuance of operations4 for its
stations located at the World Trade Center. In each instance, the Commission has granted the Port
Authority's requests.5


1 Port Authority Petition for Reconsideration (filed Feb. 11, 2011) (Petition).
2 See File Nos. 0004525958 and 0004525959.
3 For a list of these stations, see the attachment to Port Authority of New York and New Jersey, Letter Order, 25
FCC Rcd 17555 (PSHSB PD 2010) (December 2010 Letter Order).
4 47 C.F.R. 90.157, 101.65(b).
5 See Port Authority of New York and New Jersey, Order, 17 FCC Rcd 16784 (WTB PSPWD 2002); Port
Authority of New York and New Jersey, Order, 18 FCC Rcd 19243 (WTB PSPWD 2003); Letter dated Nov. 10,
2004 from Michael J. Wilhelm, Chief, Public Safety and Critical Infrastructure Division, to Jeffrey S. Green, Esq.,
General Counsel, Port Authority of New York and New Jersey; Letter dated Aug. 10, 2006 from Michael J.
Wilhelm, Chief, Public Safety and Critical Infrastructure Division, to Darrell Buchbinder, General Counsel, Port
Authority of New York and New Jersey; Port Authority of New York and New Jersey, Letter Order, 23 FCC Rcd
1753 (PSHSB PD 2008); Port Authority of New York and New Jersey, Letter Order, 23 FCC Rcd 16622 (PSHSB
PD 2008); Port Authority of New York and New Jersey, Letter Order, 24 FCC Rcd 14426 (PSHSB PD 2009);
Port Authority of New York and New Jersey, Letter Order, DA 10-2384 (PSHSB PD Dec. 20, 2010).

Federal Communications Commission

DA 11-623

3.
The Port Authority filed its most recent petition for waiver extension on September 9,
2010.6 On November 5, 2010, Micronet Communications, Inc. (Micronet), then the frequency
coordinator for the Health Department, submitted a Prior Coordination Notice (PCN) to, among others,
the Port Authority, regarding a proposed 11.2 GHz system between Cortlandt and Gotham Center in New
York City.7
4.
On November 29, 2010, responding to the PCN, Comsearch, the frequency coordinator for
the Port Authority, notified Micronet that: "Potential direct interference case(s) have been found in our
analysis. ... Your proposal will not be acceptably coordinated with our client until these cases are
resolved. Our client has the right to object to any FCC filing that has not been acceptably coordinated."8
Comsearch's letter indicated that the affected Port Authority stations were WNEE495, WNEE496 and
WPNI363.
5.
By letter of the same date, Micronet replied to Comsearch in relevant part as follows: "On
September 9th 2009 your client ... was granted a one year extension of their Waiver ... to construct the
frequencies assigned to WNEE495 (2 WTC). This waiver expired September 10, 2010. No applications
have been filed for this license since it's [sic] renewal in 2008 and there are no current coordination
notices for this call sign. Therefore we consider these cases resolved."9
6.
On December 7, 2010, the Health Department submitted two applications for the proposed
Cortlandt/Gotham Center New York 11.2 GHz system.10 The attached "Supplemental Showing Part
101.103(d)" stated: "There were no unresolved interference objections."11 On December 9, 2010,
Comsearch wrote Micronet in relevant part as follows: "Our client Port Authority of New York & New
Jersey has an ongoing agreement with the FCC to hold these frequencies because of the event on
September 11... [w]e are requesting your client to immediately withdraw their applications."12
7.
On December 15, 2010, the Health Department's application appeared on public notice as
accepted for filing.13 On December 20, 2010, the Bureau granted the Port Authority's most recent waiver
request, nunc pro tunc, extending Port Authority's construction period until September 11, 2011, for all
of its World Trade Center facilities, including stations WNEE495, WNEE496 and WPNI363.14 On


6 See Request for Extension of Waiver of Sections 90.157 and 101.65(b) of the Commission's Rules (dated Sept. 9,
2010).
7 See Petition, Exhibit 1 (Letter, Brad Youngblood to Comsearch, Inc. (Nov. 5, 2010)).
8 See Petition, Exhibit 2 (Letter, David L. Wiggens to Brad Youngblood (Nov. 29, 2010)).
9 See Petition, Exhibit 3 (Letter, Brad Youngblood to David L. Wiggens (Nov. 29 2010)).
10 See FCC Universal Licensing System, Microwave Public Safety Pool - 0004525958 - New York Department of
Health and Mental Hygiene, available at
http://wireless2.fcc.gov/UlsApp/ApplicationSearch/applAdminHistory.jsp?applID=5880944
, and Microwave
Public Safety Pool - 0004525959 - New York Department of Health and Mental Hygiene, available at
http://wireless2.fcc.gov/UlsApp/ApplicationSearch/applAdminHistory.jsp?applID=5880943
.
11 Id. at http://wireless2.fcc.gov/UlsApp/ApplicationSearch/applMain.jsp?applID=5880944 and
http://wireless2.fcc.gov/UlsApp/ApplicationSearch/applMain.jsp?applID=5880943.
12 See Petition, Exhibit 4, (Letter, David L. Wiggens to Brad Youngblood (Dec. 9, 2010)).
13 See Public Notice, Report No. 6448 (rel. Dec. 15, 2010).
14 See December 2010 Letter Order, supra note 3.
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DA 11-623

January 13, 2011, the Bureau granted the Health Department's applications under Call Signs WQNE923
and WQNE927.15
8.
On February 11, 2011, the Port Authority filed a timely petition for reconsideration
requesting that the Commission "deny" the Health Department's authorizations.16 On February 18, 2011,
Micronet filed a timely Response to the petition for reconsideration.17 The Port Authority filed a timely
reply on February 28, 2011.18
9.
Discussion. In its Petition, the Port Authority alleges that the Health Department's
applications for Stations WQNE923 and WQNE927 were "defective as a matter of law because [the
Health Department] failed to advise the Commission that there were unresolved issues between the Port
Authority and [Health Department] regarding ... interference, in contravention of the prior notice
coordination requirements."19 Specifically, the Port Authority alleges a violation of section 101.103(d)
of the Commission's rules,20 which provides in relevant part:
(1) Proposed frequency usage must be prior coordinated with existing licensees ... All applicants
and licensees must cooperate fully and make reasonable efforts to resolve technical problems and
conflicts that may inhibit the most effective and efficient use of the radio spectrum ...
(2)(i) ... To be acceptable for filing, all applications ... must certify that coordination, including
response, has been completed.
10.
In response, Micronet states that it "saw no need to note unresolved interference issues,
because the technical details were not disputed here only license status."21 Micronet further states that at
the time it issued the PCN to the Port Authority, the ULS administrative tab for license WNEE495
contained the Commission's 2009 extension order [2009 FCC Order] for the Port Authority's waiver of
the construction deadline, and this order stated that the Port Authority had until "September 10, 2010 to
construct and return the World Trade Center Stations to operational status without forfeiting the
license."22 Micronet argues that "[b]ased on the available evidence from the FCC, these paths should
have been forfeited on 09/10/2010 since there were no pending applications, no pending waiver requests
or anything else to indicate that the conditions [of the waiver order] had been or even could be met."23
11.
We find Micronet's argument unpersuasive. Micronet had ample notice that the Health
Department's applications were problematic, or at least that the applications required further
coordination, based on the concerns raised by Comsearch on November 29, 2010, in response to the PCN


15 See Public Notice Report No. 6553 (rel. Jan. 19, 2011).
16 Petition at 9.
17 Micronet Response to Petition for Reconsideration (filed Feb. 18, 2011) (Response).
18 Reply of the Port Authority of New York and New Jersey to the Opposition Filed on Behalf of the New York
Department of Health and Mental Hygiene (filed Feb. 28, 2011) (Reply).
19 Petition at iii.
20 47 C.F.R. 101.103(d). See Petition at 6-7.
21 Response at 1.
22 Id.
23 Id.
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Federal Communications Commission

DA 11-623

filed by Micronet, and again, on December 9, 2010, two days after Micronet filed the applications.24 We
also find it significant that prior to the filing of the PCN and up until the Commission granted the Health
Department's applications, the ULS indicated that the Port Authority's licenses remained on active status
and did not expire until February 11, 2019.25 In light of these circumstances, Micronet's decision to file
the applications without informing the Commission of Comsearch's objections was improper and
inconsistent with its obligations pursuant to the Commission's general rules regarding the accuracy and
truthfulness of applications26 as well as the Part 101 coordination rules.27
12.
Moreover, we reject Micronet's assertion that it was reasonable for it to conclude that Port
Authority would be unable to meet the September 10, 2010 construction deadline based on the
information contained in the administrative tab for license WNEE495. Given the objections raised by
Comsearch, and the fact that the license remained in active status in ULS,28 Micronet should have raised
these issues or made an inquiry to the Commission. Part 101 coordination procedures require all
applicants and licensees to "cooperate fully and make reasonable efforts to resolve technical problems
and conflicts that may inhibit the most effective and efficient use of the radio spectrum." We therefore
disagree with Micronet's contention that it was not required to note unresolved interference issues
because "the technical details were not disputed." The integrity of the frequency coordination process
depends on the good faith efforts of frequency coordinators to work together to identify suitable
frequencies for the Commission's consideration. When a Part 101 frequency coordinator submits an
application to the Commission, the coordinator certifies that due diligence and reasonable efforts have
been exercised in the selection of the frequencies. By ignoring Comsearch's objections and by failing to
inform the Commission of the same, Micronet undermined this process, which resulted in a faulty
coordination.


24 At the time Micronet submitted the Health Departments applications, Comsearch had already put Micronet on
notice that the Port Authority considered its license to be active. See Petition, Exhibit 2 (Letter, David L. Wiggens
to Brad Youngblood (Nov. 29, 2010)).
25 We also note that the Bureau's December 20, 2010, nunc pro tunc grant of the Port Authority's waiver request,
as well as the seven previous grants of similar requests (the latter three of which were also granted nunc pro tunc),
are all publicly available on the Commission's Electronic Document Management System. EDOCS is available at
http://hraunfoss.fcc.gov/edocs_public/.
26 Section 1.17(a)(2) of the Commission's rules states that no person may provide, in any written statement of fact,
"material factual information that is incorrect or omit material information that is necessary to prevent any material
factual statement that is made from being incorrect or misleading without a reasonable basis for believing that any
such material factual statement is correct and not misleading. 47 C.F.R. 1.17(a)(2). See Cricket
Communications, Inc., File No.: EB-10-SE-051, Order and Notice of Apparent Liability for Forfeiture, DA 11-
184, 5 (EB rel. Feb. 1, 2011). Moreover, all applicants for common carrier fixed point-to-point microwave
station licenses must certify that "all statements made in th[e] applications and in the exhibits, attachments, or
documents incorporated by reference...are true, complete, correct, and made in good faith." See Form 601
(Application for Wireless Telecommunications Bureau Radio Service Authorization); General Certification
Statements. See also 47 C.F.R. 1.65 (Substantial and significant changes in information furnished by applicants
to the Commission).
27 See 47 C.F.R. 101.103(d).
28 Under the Commission's licensing procedures, a license is not automatically canceled until the Commission
takes an affirmative action to do so as reflected by the ULS. Here the license cancellation was tolled by the Port
Authority's timely filed waiver extension request, and the ULS correctly indicated that the subject license remained
in active status.
4

Federal Communications Commission

DA 11-623

13.
We therefore find that the coordination and filing of the Health Department applications
was improper and contrary to the provisions of section 101.103(d) of the Commission's rules. Because
Micronet did not properly coordinate the applications, and given that technical issues surrounding the
applications remain in dispute as evidenced by the Petition29 and Micronet's response,30 the public
interest warrants that we set aside the Health Department's authorizations to operate Stations WQNE923
and WQNE927. However, rather than denying the applications as requested by the Port Authority,31 we
return the applications to pending status for sixty days. By taking this action, we provide Micronet further
opportunity to evaluate and coordinate the applications by either reengineering the technical specifications
of its proposal to avoid interference with Port Authority's authorization or to select alternate frequencies. If
the Health Department takes no further action on its applications within sixty days, ULS will automatically
dismiss those applications.
14.
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, and Section 1.106 of the
Commission's Rules, 47 C.F.R. 1.106, the Petition for Reconsideration filed by the Port Authority of
New York and New Jersey on February 11, 2011, IS GRANTED IN PART as set forth herein.
15.
IT IS FURTHER ORDERED that the authorization of the New York Department of Health
and Mental Hygiene to operate Stations WQNE923 and WQNE927 IS SET ASIDE and returned to
pending status.
16.
This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the
Commission's Rules, 47 C.F.R. 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Thomas J. Beers
Chief, Policy Division
Public Safety and Homeland Security Bureau


29 The Port Authority claims that the Health Department's licenses will "interfere with future use of its [the Port
Authority's] radio authorization grants." Petition at 1.
30 Micronet states "potential interference issues with the old path from WTC 2 LA GUARDIA, ... this path has
not existed for ten years and will never exist again as it is currently licensed." Response at 1. Micronet further
states that "[a]ny new path from WNEE495 to WNEE496 will be a major change from the existing license data
with different interference characteristics [and t]his new path would have to be successfully re-coordinated prior to
filing 601 applications and before transmitting." Id.
31 See Petition at 9.
5

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