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Progeny LMS, LLC, Waiver of Two Multilateration LMS Rules

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Released: December 20, 2011

Federal Communications Commission

DA 11-2036

Before the

Federal Communications Commission

WASHINGTON, D.C. 20554

In the Matter of
)
)

Request by Progeny LMS, LLC for Waiver of
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WT Docket No. 11-49
Certain Multilateration Location and Monitoring
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Service Rules
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ORDER

Adopted: December 20, 2011

Released: December 20, 2011

By the Chief, Wireless Telecommunications Bureau, and the Chief, Office of Engineering and Technology:
1.
In this Order, we grant the Petition of Progeny LMS, LLC (“Progeny”) for waiver of two
rules in the Multilateration Location and Monitoring Service (M-LMS) in the 902-928 MHz band to
enable Progeny to utilize a more advanced and efficient multilateration location service than had been
contemplated when the rules were established in 1995.1 Specifically, we waive the prescriptive technical
requirements specified as part of the construction requirements set forth in 90.155(e) 2 to allow Progeny to
take advantage of technical advances in multilateration technologies over the past fifteen years when it
deploys its network. Further, we grant a limited waiver of Section 90.353(g),3 which provides that
multilateration LMS systems’ “primary” operations involve the provision of vehicle location services, to
enable Progeny to make its service equally available to other mobile devices so long as Progeny provides
its location service to both vehicular and non-vehicular location services. In so doing, we seek to
facilitate the deployment of a multilateration service that can provide highly accurate location
determinations, including more precise location information that can improve delivery of E 911
emergency services. Finally, in granting waiver of these two rules, we note that the other M-LMS rules
and technical requirements remain in place, including the requirement that Progeny demonstrate that its
M-LMS system will not cause unacceptable levels of interference to Part 15 devices that operate in the
902-928 MHz band.

I.

BACKGROUND

2.
Progeny, an M-LMS licensee, seeks waiver of two subsections of the Commission’s rules
pertaining to M-LMS service. First, Progeny requests that the Commission waive some of the technical
specifications set forth in Section 90.155(e) that define what constitutes a “constructed” network for
purposes of meeting the Commission’s buildout requirements. In particular, this subsection provides that
an M-LMS station will be considered constructed and placed in operation if it is built “in accordance with
its authorized parameters and is regularly interacting with one or more other stations to provide location


1 See Petition for Waiver of the Rules and Request for Expedited Treatment, Progeny LMS, LLC (filed Mar. 8,
2011) (“Petition”).
2 47 C.F.R. § 90.155(e).
3 Id. § 90.353(g).

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service, using multilateration technology, to one or more mobile units.”4 Section 90.155(e) further
provides that “LMS multilateration stations will only be considered constructed and placed in operation if
they are part of a system that can interrogate a mobile, receive the response at 3 or more sites, compute
the location from the time of arrival of the responses and transmit the location either back to the mobile or
to a subscriber’s fixed site.”5 Progeny seeks a waiver of Section 90.155(e) to permit it to operate a
multilateration network that, although different from the specific construction requirements set forth in
that subsection, would be deemed to satisfy Progeny’s buildout requirements.
3.
Second, Progeny requests that the Commission waive Section 90.353(g), which concerns
the requirement that the primary operations of multilateration LMS systems involve vehicular location
services. The subsection specifically provides that “[m]ultilateration LMS systems whose primary
operations involve the provision of vehicle location services, may provide non-vehicular location
services.”6 Progeny seeks a waiver of Section 90.353(g) in order to permit it to make M-LMS services
“equally available” to track the location of both vehicular and non-vehicular mobile devices.7
4.
Multilateration Location and Monitoring Service. In 1995, the Commission established
M-LMS as a new radio service to be licensed in the 902-928 MHz band.8 Multilateration systems use
spread-spectrum technology to locate vehicles and other moving objects with great accuracy through wide
geographic areas.9 In addition to LMS, this band may be used by a number of other spectrum users. The
spectrum is allocated on a primary basis to Federal radiolocation systems and to Industrial, Scientific, and
Medical (ISM) equipment.10 Federal fixed and mobile services are allocated on a secondary basis to
Federal radiolocation systems and ISM equipment. LMS licensees are allocated on a secondary basis to
Federal users and to ISM devices and may not cause interference to and must tolerate interference from
these users and devices.11 Amateur radio operations are allocated on a secondary basis to LMS.12
Unlicensed devices also are authorized under Part 15 to use the 902-928 MHz band, although such
devices are not afforded interference protection rights and may not cause harmful interference to LMS


4 Id. § 90.155(e). M-LMS licensees “must construct and place in operation a sufficient number of base stations that
utilize multilateration technology.” Id. § 90.155(d).
5 Id. § 90.155(e).
6 Id. § 90.353(g).
7 Petition at 14.
8 See Amendment of Part 90 of the Commission’s Rules to Adopt Regulations for Automatic Vehicle Monitoring
Systems, PR Docket No. 93-61, Report and Order, 10 FCC Rcd 4695 (1995) (LMS Report and Order); Amendment
of Part 90 of the Commission’s Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems, PR Docket
No. 93-61, Order on Reconsideration, 11 FCC Rcd 22462 (1996) (M-LMS Order on Reconsideration); Amendment
of Part 90 of the Commission’s Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems, PR Docket
No. 93-61, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd 13942
(1997) (M-LMS MO&O). There are two types of LMS systems. M-LMS systems have been envisioned to track and
locate objects over a wide geographic area by measuring the difference in time of arrival or phase of signals
transmitted from a unit to a number of fixed points, or from a number of fixed points to the unit that is to be located.
Non-multilateration LMS systems transmit data to and from objects passing through particular locations, and are
licensed site-by-site. 47 C.F.R. § 90.7
9 LMS Report and Order, 10 FCC Rcd at 4697 ¶ 4.
10 47 C.F.R. §§ 2.106, 18.301, 18.111(c).
11 Id. § 90.353(a).
12 Id. § 97.301.
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licensees, amateur operations, or other licensed systems.13 In establishing the rules for M-LMS
operations, the Commission sought to ensure that the coexistence of the many varied users in the band.14
The Commission expected that, as M-LMS licensees designed their networks, certain technical
refinements might be appropriate in order to ensure that the coexistence of various services in the 902-928
MHz band is as successful as possible, and it conditioned the grant of the each license on the licensee’s
ability to demonstrate through actual field tests that their systems do not cause unacceptable levels of
interference to Part 15 devices.15

5.
Six entities currently hold 614 M-LMS licenses. Progeny holds 228 licenses, Skybridge
Spectrum Foundation (Skybridge) holds 128 licenses and an associated holding company, Telesaurus
Holdings GB, LLC (Telesaurus) holds 129 licenses (collectively, 257 Havens licenses), Helen Wong-
Armijo holds 84 licenses, PCS Partners, L.P. holds 32 licenses, and FCR, Inc. (FCR) holds 13 licenses.
There are three blocks of M-LMS spectrum (Blocks A, B, and C).16 Progeny holds B and C block
licenses in 113 EAs across much of the country.17 The other licensees mostly hold A block licenses, with
the exception of Helen Wong-Armijo whose license holdings include B and C blocks in 24 markets.18
6.
2006 Rulemaking. In 2006, the Commission adopted a Notice of Proposed Rulemaking
to reexamine its regulations on the licensing and use of the M-LMS frequencies in the 902-928 MHz
band, which are located in the 904-909.75 and 919.75-928 MHz frequencies in the band.19 The
Commission noted that since M-LMS was established there had been “very limited development of M-
LMS service under the existing rules” and that the rulemaking was initiated “to determine whether new
approaches could produce more efficient and effective use of the 904-909.75 and 919.75-928 MHz
spectrum band . . . by M-LMS licensees.”20 The Commission noted that, in reexamining these rules, it
also sought to ensure that any changes would continue to protect federal and other licensed users in the


13 Under a safe harbor contained in the rules, users of Part 15 devices conforming to specified technical conditions
under the safe harbor are insulated from claims in the 902-928 MHz band that such devices cause harmful
interference to M-LMS systems. See 47 C.F.R. § 90.361.
14 LMS Report and Order, 10 FCC Rcd at 4708 ¶ 23.
15 Id. at 4737 ¶ 82; 47 C.F.R. § 90.353(d).
16 Block A is 6 megahertz of spectrum, consisting of a 5.75 megahertz block paired with a 0.25 megahertz
narrowband channel. Block B 2.25 megahertz of spectrum, consisting of a 2 megahertz block shared with non-M
LMS, paired with a 0.25 megahertz narrowband channel. Block C is 5.75 megahertz of spectrum, consisting of a 5.5
megahertz block, paired with a 0.25 megahertz narrowband channel. See Location and Monitoring Service
Spectrum Auction Scheduled for December 15, 1998, Comment Sought on Reserve Prices or Minimum Opening
Bids and Other Auction Procedural Issues, Public Notice, DA 98-1616, 13 FCC Rcd 15501 (WTB 1998); 47 C.F.R.
§ 90.357(a).
17 Progeny also holds two A block licenses in markets other than those in which its B and C block licenses are
located. See Petition at 4.
18 Helen Wong-Armijo holds 24 B block licenses and 60 C block licenses. PCS Partners and Telesaurus each hold
one Block C license.
19 Amendment of the Commission’s Part 90 Rules in the 904-909.75 and 919.75-928 MHz Bands, WT Docket No.
06-49, Notice of Proposed Rulemaking, 21 FCC Rcd 2809 (2006) (M-LMS NPRM).
20 Id. at 2810 ¶ 1. The rulemaking was partly in response to a Petition for Rulemaking filed in 2002 by Progeny, but
also was initiated to address “the ability of our Part 90 M-LMS rules to afford licensed service providers greater
flexibility to respond to changing market conditions” and to consider rule changes that could facilitate higher-valued
licensed use of the spectrum in the M-LMS bands. Id. at 2810 ¶¶ 2-3.
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band and avoid any significant increase in interference to unlicensed users in the band.21 This rulemaking
proceeding is pending.
7.
Progeny’s Waiver Petition. On March 8, 2011, Progeny filed its petition for waiver of
Sections 90.155(e) and 90.353(g) of the Commission’s rules.22 Progeny states that “M-LMS development
has been stalled”23 and that it and its partners have developed a “multilateration technology that can
provide highly accurate position location information using relatively simple and inexpensive terrestrial
network architecture.”24 Progeny states that its technical approach “can provide highly accurate and
reliable position location information particularly in challenging environments such as indoors and in
urban centers,”25 and that it also could be used in emergency situations.26 Progeny’s proposal involves
using one transmission path instead of multiple transmission paths back and forth between base stations
and vehicles.27 Progeny claims that a waiver of Section 90.155(e) would serve the public interest by
allowing the provision of position location services that are “more accurate, more reliable, more spectrally
efficient and far less potentially interfering than the M-LMS network architecture” contemplated under
the existing rule.28 With respect to Section 90.353(g), Progeny claims that a waiver of this rule would
serve the public interest because GPS is less accurate indoors and around tall buildings than for outdoor
or rural use.29 Progeny also states that a “broadcast-only M-LMS network configuration would
substantially reduce M-LMS transmissions in the 902-928 MHz band” and that “the risk of harmful
interference to other users of the band would in no way be affected by the number of, or types of, mobile
devices utilizing a broadcast-only M-LMS network.”30
8.
On March 10, 2011, the Wireless Telecommunications Bureau sought comment on
Progeny’s Petition.31 On March 25, 2011, Skybridge Spectrum Foundation, Telesaurus Holdings GB
LLC, Environmentel LLC (formerly known as AMTS Consortium LLC), Verde Systems LLC (formerly
known as Telesaurus VPC LLC), Intelligent Transportation & Monitoring Wireless LLC, V2G LLC, and
Warren Havens (collectively “Havens”) filed a “Request to Reissue Public Notice and Place in Existing
Relevant Docket and Request to Extend Deadlines for Comments and Reply Comments.”32 Also on
March 25, 2011, Progeny filed an Opposition to Havens’ request to issue a new public notice and restart


21 Id. at 2810 ¶ 1.
22 See Petition; 47 C.F.R. §§ 90.155(e), 90.353(g). Progeny also requested expedited treatment of the Petition.
23 Petition at 5.
24 Id. at 3.
25 Id. at 4.
26 See id. at 3.
27 Id. at 4.
28 Id. at 12.
29 Id. at 14.
30 Id. at 13.
31 Wireless Telecommunications Bureau Seeks Comment on Request by Progeny LMS, LLC For Waiver of Certain
Multilateration Location and Monitoring Service Rules, WT Docket No. 11-49, Public Notice, DA 11-446, 26 FCC
Rcd 3495 (WTB 2011). The notice set March 25, 2011 as the comment date on Progeny’s Petition, and April 4,
2011 as the reply comment date.
32 Request to Reissue Public Notice and Place in Existing Relevant Docket and Request to Extend Deadlines for
Comments and Reply Comments, WT Docket No. 11-49 (March 25, 2011).
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the comment cycle for Progeny’s Petition.33 On March 25, 2011, the Wireless Telecommunications
Bureau released a Public Notice extending the time to file reply comments on the Petition to April 11,
2011.34
9.
Comments on Progeny’s Waiver Petition. Three parties commented on the Petition. Two
of these parties, Itron, Inc. (“Itron”) and Cellnet Technology, Inc., a Landis+Gyr company (“L+G”),
operate Part 15 devices in the 902-928 MHz band.35 Itron supplies Automatic Meter Reading (“AMR”)
technologies that use unlicensed Part 15 devices to electric, gas, and water utility companies nationwide,
enabling smart grid operations by allowing utilities to monitor business and residential meters from
remote locations.36 L+G provides integrated energy management solutions tailored to energy company
needs and has deployed a “low-cost, private internal telemetry services network” that allows it to transmit
and receive data for remote monitoring and control devices, primarily utility meters.37 The third
commenter, Warren Havens, is another M-LMS licensee (see above).
10.
Itron and L+G urge the Commission to “proceed cautiously in considering this or any
future requests for waiver by M-LMS licensees.”38 Itron notes that the M-LMS rules were crafted to
allow for the coexistence of M-LMS systems with Part 15 devices (as well as other users), and is
concerned with the potential for interference from expanded use of M-LMS spectrum, including the use
of additional transmitters to provide indoor service.39 It also expresses concern about the “interplay”
between the Petition and the 2006 M-LMS rulemaking in WT Docket No. 06-49.40 In particular, Itron
notes that the Notice of Proposed Rulemaking sought comment on lowering the maximum M-LMS power
limits yet Progeny’s waiver request does not address “the possibility of modifying the M-LMS power
limits to compensate for the impact of its proposal.”41 It also states that the waiver request does not
discuss “the impact of any future rule changes on Progeny operations under the proposed waiver.”42 L+G
also comments that the M-LMS rules are designed to foster the coexistence of M-LMS systems with Part
15 devices and states that Progeny has not provided sufficient data, including detail as to the “effective
occupancy of the band by M-LMS licensees,” to support its requested waivers.43 L+G further comments


33 Opposition of Progeny LMS, LLC, WT Docket No. 11-49 (March 25, 2011).
34 Wireless Telecommunications Bureau Extends Period to File Reply Comments on Progeny LMS LLC Petition for
Waiver of Certain Multilateration Location and Monitoring Service Rules, WT Docket No. 11-49, Public Notice,
DA 11-559, 26 FCC Rcd 4112 (WTB 2011).
35 Comments of Itron, Inc., WT Docket No. 11-49 (Mar. 25, 2011) (“Itron Comments”); Reply Comments of Cellnet
Technology, Inc., a Landis+Gyr company, WT Docket No. 11-49 (Apr. 11, 2011) (“L+G Reply Comments”).
36 Itron Comments at 2.
37 L+G Reply Comments at 1 n.1.
38 Itron Comments at 1; L+G Reply Comments at 1-2.
39 Itron Comments at 3-5.
40 Id. at 5-6.
41 Id. at 6.
42 Id.
43 L+G Reply Comments at 2-4.
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that the Commission should “reaffirm” that Progeny must comply with the system field test requirements
in the rules.44
11.
Havens comments that Progeny’s “current and further requests should be summarily
rejected” unless Progeny “lays out a clear plan, technology, system design testing plan regarding Part 15
and federal device systems, need showing as to how rule waivers or changes are more in public interest
than no changes, etc.”45 Havens argues that the Petition should not be granted while the rulemaking
proceeding is pending.46 In addition, Havens states that “Progeny’s proposal clearly is to remove its M-
LMS spectrum from ITS applications of any significance and viability.”47 Havens also argues that
Progeny’s proposal presents concerns over interference, and that more data is required to assess the
Petition’s impact.48 Havens also presents certain arguments concerning procedural matters and the
adequacy of notice.49
12.
In its reply comments, Progeny asserts that its proposed broadcast-only network
configuration and low bit rate, higher processing gain signal would reduce the number of necessary base
station transmitters and overall transmissions, thereby reducing the potential for interference with Part 15
devices.50 In further comments, Progeny claims that its proposal would result in reduced effective
occupancy, more regulatory certainty, and no impact on the pending rulemaking.51 Progeny also states
that it is fully aware of its obligation to demonstrate through field tests that its system does not cause
unacceptable interference to Part 15 devices operating in the band.52

II.

DISCUSSION

13.
We grant Progeny’s request for waiver of Sections 90.155(e) and 90.353(g) of the
Commission’s rules to the extent discussed herein. To obtain a waiver of the Commission’s rules,
pursuant to Section 1.925(b)(3),53 a petitioner must demonstrate that particular facts make strict
compliance with a rule inconsistent with the public interest and the requested relief would not undermine


44 Id. at 3-4 (citing section 90.353(d) of the rules, which requires M-LMS licensees to demonstrate through actual
field tests that their systems do not cause unacceptable levels of interference to part 15 devices).
45 Havens Comments at 7-8. On March 25, 2011, Havens submitted comments in opposition to the Petition.
Comments in Opposition, WT Docket No. 11-49 (March 25, 2011). Havens submitted an “errata” version of its
comments on March 28, 2011. Comments in Opposition Errata Copy, WT Docket No. 11-49 (March 28, 2011)
(“Havens Comments”). On April 11, 2011, Havens submitted an additional pleading opposing Progeny’s Petition.
Further Comments in Opposition, WT Docket No. 11-49 (April 11, 2011) (“Havens Further Comments”), together
with certain documentation, and also filed more documentation on April 15, 2011.
46 See Havens Comments at 9.
47 Havens Further Comments at 2. Havens further states that “[o]ne-way service will not be ITS wireless, regardless
of whether multilateration is performed on the down- or up- link or both.” Id. at 3-4.
48 See Havens Further Comments, Exhibit 1.
49 See Havens Comments at 3-5.
50 Reply Comments of Progeny LMS, LLC (April 11, 2011) at 1, 5-8 (“Progeny Reply Comments”).
51 See Further Reply Comments of Progeny LMS, LLC (April 14, 2011) at 3-5, 9-10 (“Progeny Further Reply
Comments”).
52 Progeny Further Reply Comments at 4-5.
53 47 C.F.R. § 1.925(b)(3).
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the policy objectives of the rule. 54 Based on the record, we conclude that grant of the requested waivers
is warranted.55 Below, we first discuss waiver of Sections 90.155(e) and 90.353(g) and then the
interference concerns associated with Progeny’s proposed system.
14.
Waiver of Section 90.155(e). As discussed below, we grant Progeny a waiver of Section
90.155(e) of the Commission’s rules. Section 90.155(e) provides that an M-LMS station will be
considered constructed and placed in operation if it is built “in accordance with its authorized parameters
and is regularly interacting with one or more other stations to provide location service, using
multilateration technology, to one or more mobile units.”56 Section 90.155(e) further provides that “LMS
multilateration stations will only be considered constructed and placed in operation if they are part of a
system that can interrogate a mobile, receive the response at 3 or more sites, compute the location from
the time of arrival of the responses and transmit the location either back to the mobile or to a subscriber's
fixed site.”57
15.
We find that the particular facts presented in the record with respect to Progeny’s
proposed operations make the strict application of Section 90.155(e) to Progeny’s proposed operations
inconsistent with the public interest. Position location technology has evolved significantly since the M-
LMS rules were adopted in 1995 and now includes handset-based and hybrid location technologies,58 as
well as the network-based technology that is the basis of the requirements in Section 90.155(e).
Notwithstanding the specific requirements of Section 90.155(e), the order adopting this rule and the
orders addressing petitions for reconsideration of the 1995 rules indicate that the Commission generally
intended to afford M-LMS licensees flexibility so that they could develop a variety of technology options
in providing multilateration service.59 In addition, the definition of M-LMS in Section 90.7 of the
Commission’s rules provides a flexible framework to facilitate the implementation of M-LMS. This rule
broadly defines M-LMS as “[a] system that is designed to locate vehicles or other objects by measuring


54 See, e.g., WAIT Radio v. FCC, 413 F.2d 1153, 1157 (D.C. Cir. 1969) (WAIT Radio) (holding that the FCC may
exercise its discretion to waive a rule where particular facts would make strict compliance inconsistent with the
public interest), aff’d, 459 F.2d 1203 (1973), cert. denied, 409 U.S. 1027 (1972); Northeast Cellular Tel. Co. v.
FCC
, 897 F.2d 1164 (D.C. Cir. 1990) (holding that waiver of the Commission’s rules may be granted in instances
where the particular facts make strict compliance inconsistent with the public interest if applied to the petitioner and
when the relief requested would not undermine the policy objective of the rule in question).
55 We reject Havens’ argument that “guidance to prospective waiver applicants” offered by the Commission
respecting a different service would provide “a useful measure with regard to M-LMS.” Havens Comments at 8.
Unlike the AMTS service considered by Havens in its comments, the Commission provided no specific guidance in
the orders for M-LMS as to future waivers of the M-LMS rules. As we have stated, we are considering Progeny’s
Petition under the Commission’s rules and relevant legal precedent.
56 47 C.F.R. § 90.155(e). M-LMS licensees “must construct and place in operation a sufficient number of base
stations that utilize multilateration technology.” Id. § 90.155(d).
57 47 C.F.R. § 90.155(e).
58 See Petition at 5 (discussing that “a lot has happened” in position location technology since the M-LMS rules
were adopted, and that GPS has become widely available).
59 See, e.g., LMS MO&O, 12 FCC Rcd at 13965 ¶ 61 (declining to prohibit wideband forward links because to do so
would “preclude certain LMS technology options from being developed”). See also LMS Report and Order, 10
FCC Rcd at 4740 ¶ 89 (“Allowing any types of emissions will enable any type of location or monitoring technology
or ancillary service to develop without restrictions.”).
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the difference of time of arrival, or difference in phase, of signals transmitted from a unit to a number of
fixed points or from a number of fixed points to the unit to be located.”60
16.
The specific construction requirements set forth in Section 90.155(e) assume a
technology in which there would be multiple transmission paths, with location determined at network
level and reported back to user.61 Progeny’s proposed M-LMS system, however, would employ a single
transmission path for a broadcast signal from base stations to the mobile devices.62 Absent a waiver of
Section 90.155(e), Progeny would have to deploy a specific network-based system contemplated in 1995
that would use multiple transmission paths between base stations and user terminals.63 The system also
would have to determine the position of each mobile with at least three M-LMS transmit base stations,
rather than combining M-LMS base stations with GPS or other position location technologies.64 As
discussed below, we are not persuaded that Progeny’s proposed technology has greater potential to
increase interference to other users compared to the specific system technology currently set out in the
construction requirement rule. Further, we find that without a waiver, application of Section 90.155(e)
would impede Progeny’s ability to offer an innovative service that promotes the public interest and is
competitive with other position location technologies.65
17.
As discussed above, the Commission intended to provide M-LMS licensees with some
flexibility in developing multilateration technologies to provide M-LMS.66 Notably, the Commission’s
intent to provide flexibility to facilitate to implement M-LMS is reflected in the definition for M-LMS in
the rules,67 and Progeny states that its proposed system would allow for the use of the spectrum for
location services, including for emergency location services that would serve the public interest.
18.
We are not persuaded by Havens’ assertion that Progeny’s proposal “for a one-way
broadcast technology for M-LMS would limit the benefit of the M-LMS band for ITS networks.”68
Progeny’s proposal offers the potential for the use of the spectrum in a way that would serve the public
interest. In particular, Progeny’s technology offers the potential for significantly improved location based
services that provide for vehicle location services as well as other mobile units, particularly for use in
challenging locations such as urban canyons or inside buildings. It also offers the opportunity for
enhanced position location for emergency 911 services.
19.
In light of record and the substantial public interest benefits of Progeny’s proposed
system, we find that strict application of Section 90.155(e) to Progeny would be inconsistent with the
public interest, and this limited relief would not undermine the policy objective of Section 90.155(e).
20.
Waiver of Section 90.353(g). Section 90.353(g) provides that “[m]ultilateration LMS
systems whose primary operations involve the provision of vehicle location services, may provide non-


60 47 C.F.R. § 90.7.
61 See 47 C.F.R. § 90.155(e).
62 Petition at 11.
63 Id. at 6, 11.
64 Id.
65 Id. at 10.
66 See, e.g., LMS MO&O, 12 FCC Rcd at 13965 ¶ 61; LMS Report and Order, 10 FCC Rcd at 4740 ¶ 89.
67 47 C.F.R. § 90.7.
68 Havens Further Comments, Exhibit 1 at 3.
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vehicular location services.”69 Progeny indicates that the proposed system will meet the definition of M-
LMS but seeks a waiver of Section 90.353(g) in order to permit it to make M-LMS services equally
available to track the location of vehicular and non-vehicular devices.70 Progeny states that its proposed
approach “can provide highly accurate and reliable position location information particularly in
challenging environments such as indoors and in urban centers,”71 and that its proposal has been
developed “[i]n response to these growing concerns,” including the ability of emergency service providers
to receive precise location information when emergency calls are made from mobile devices, such as
E911 emergency calls from indoor locations.72 The public interest benefits from improved position
location service in areas where GPS is limited, such as in urban canyons and indoors, are substantial.73
21.
A strict application of Section 90.353(g) would result in Progeny being required to offer
its service primarily to vehicles, thereby reducing the usefulness of its proposed location-based service as
a means for locating non-vehicular mobile devices in GPS-challenged environments, such as indoors and
urban areas.74 We grant a limited waiver of this rule that allows Progeny to deploy its proposed system so
long as Progeny provides a service that tracks both the locations of vehicles and other mobile non-
vehicular devices.
22.
We find that granting this limited waiver would serve the public interest and would not
undermine the policy objective of Section 90.353(g) that M-LMS be used to provide vehicular location
services. Progeny’s operations under its proposed multilateral system will continue to involve the
provision of vehicle location services as well as non-vehicular location services.75 Progeny states that a
waiver of Section 90.353(g) would permit it to make M-LMS services “equally available” to track the
location of both vehicular and non-vehicular mobile devices.76 The grant of this limited waiver is
consistent with the Commission’s observation in the LMS Report and Order that its requirement that M-
LMS operations provide non-vehicular services “recognizes the general capability of multilateration
systems to cover a wide area and perform location determinations for any type of object within that
area.”77 This waiver is also consistent with the Commission’s decision to “decline to adopt a specific cap
on non-vehicular location services” in order “[t]o afford multilateration LMS operators maximum
flexibility in designing their systems.”78


69 47 C.F.R. § 90.353(g).
70 See Petition at 2.
71 Id. at 4.
72 Id. at 3.
73 Id. at 5 (“The public need for more accurate and reliable position location services is substantial. Progeny
believes . . . it has developed a solution.”).
74 Id. at 14 (“GPS provides far less accurate position location information when used indoors and in tall buildings –
locations most used by handheld wireless devices”).
75 47 C.F.R. § 90.353(g); see also M-LMS Report and Order, 10 FCC Rcd at 4708 ¶ 24.
76 Petition at 14.
77 LMS Report and Order, 10 FCC Rcd at 4708 ¶ 24.
78 LMS MO&O, 12 FCC Rcd at 13966-67 ¶ 64.
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23.
This limited waiver also will not undermine the Commission’s policy objective of
maintaining the coexistence of other users in the band.79 As discussed below, this order does not waive
any of the MLMS interference rules the Commission adopted in 1995 and 1996.
24.
Interference issues. As discussed above, commenters have expressed concerns about the
potential impact of Progeny’s proposed operations on other operations in the band, including Part 15
devices. Although commenters express concern that the implementation of Progeny’s proposal could
increase the number of transmitters, we note that the Commission’s rules for M-LMS do not limit the
number of sites or the level of geographic area coverage for an M-LMS licensee.80 Thus, an operator may
build as many sites as are necessary to provide service, including service for both vehicular and non-
vehicular purposes.81 We also reject Havens’ claims regarding the potential for increased interference
with other users in the event that Progeny elects to place its antennas at higher heights as not relevant,
because the Commission’s rules do not provide antenna height restrictions for M-LMS operations.
25.
In granting these waivers, we are not revising other interference-related requirements
applicable to M-LMS operations.82 It is well established that Part 15 devices are not entitled to protection
from interference.83 In this band, however, the Commission adopted specific interference rules designed
to maintain coexistence of many varied users in the band, including Part 15 users.84 This order does not
waive any of those rules. Included in these rules is the obligation, set forth in Section 90.353(d), that
Progeny demonstrate through actual field tests that its M-LMS system will not cause unacceptable levels
of interference to Part 15 devices.85 As the Commission noted, the purpose of the testing condition “is to
insure that multilateration LMS licensees, when designing and constructing their systems, take into
consideration a goal of minimizing interference to existing deployments or systems of Part 15 devices in
their area, and to verify through cooperative testing that this goal has been served.”86
26.
We also note that Progeny’s proposal takes the goal of minimizing interference to other
users into account. In its Petition, it states that grant of the waiver would in fact enhance its ability to
comply with other M-LMS rules, including the requirement that it demonstrate that its system does not
cause unacceptable levels of interference to Part 15 devices.87 Progeny asserts that its proposal will result
in fewer M-LMS base stations and transmissions which reduce the potential for interference to Part 15
devices.88 According to Progeny, its broadcast-only network configuration will have fewer transmissions


79 See LMS Report and Order, 10 FCC Rcd at 4708 ¶ 23; LMS MO&O, 12 FCC Rcd at 13945 ¶ 5.
80 See 47 C.F.R. § 90.155(d).
81 Id.
82 Because this Order does not revisit the interference-related requirements that apply to M-LMS operations within
the 902-928 MHz band, which were designed to enable co-existence of different services in the band and prevent
unacceptable levels of interference to Part 15 users, we conclude that the potential benefits associated with granting
these waivers, which allow Progeny to proceed with plans to deploy a more advanced and efficient multilateration
location and monitoring service to the public, do not impose additional costs and thus outweigh the potential costs
associated with interference.
83 See LMS MO&O, 12 FCC Rcd at 13968 ¶ 69.
84 LMS Report and Order, 10 FCC Rcd at 4708 ¶ 23.
85 47 C.F.R. § 90.353(d).
86 LMS MO&O, 12 FCC Rcd at 13968 ¶ 69.
87 Petition at 7.
88 See Progeny Reply Comments at 1, 4.
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because it does not require return links or frequency re-use.89 Progeny also states that this configuration
will provide locations position services to a greater number of mobile devices without increasing the
number of forward link transmissions.90 Progeny further notes that the higher processing gain of its low
bit rate transmissions will allow its signals to penetrate indoors without the need for additional
transmitters.91 According to Progeny, its “broadcast-only network configuration will allow it to provide
position location service over a specific geographic area with a minimal number of base station
transmitters – significantly fewer than would be necessary for a traditional M-LMS systems. Therefore,
the reduced transmissions will result in reduced potential for interference to Part 15 operations.”92
Progeny’s statements demonstrate that it intends to design its system so as to maintain the coexistence of
the many varied users in the band. Pointing to the Commission’s recognition that M-LMS licensees have
flexibility to facilitate band sharing and minimize interference to Part 15 operations by employing various
technical refinements, Progeny states that, in designing its M-LMS system, it is exploring some
combination of power control, pulse duration, and/or duty cycle limits in order to minimize the impact of
its system on other operations.93 Further, Progeny expressly acknowledges its obligations with respect to
field testing, and states that it intends to employ a variety of spectrum sharing techniques to meet those
obligations.94 As discussed above, the testing requirement will require Progeny to take the goal of
minimizing interference to existing users, including Part 15 users, into consideration and to verify through
cooperative testing that this goal is being served.
27.
L+G argues that Progeny has not provided “sufficient detail as to the effective occupancy
of the band by M-LMS licensees over any particular period of time.”95 We note that the current rules do
not provide for restrictions on transmission pulse duration or duty cycle. When the Commission crafted
its rules for M-LMS, it approved the use of forward links in the LMS wideband sub-bands, and declined
to permit higher power in these forward links, stating that “although a duty cycle limitation could be
applied to each individual [wideband] forward link transmitter, considered collectively, there would
almost always be at least one transmitter transmitting in an area at any given time.”96 For these reasons,
we do not agree with L+G that further detail is needed to address “the effective occupancy of the band by
M-LMS licensees over any period of time,” or that the waiver would be inconsistent with the rules since
there would be “virtually no ‘quiet time.’”97 We also reject Havens’ argument that Progeny’s proposal
would increase licensed “spectrum use in space and time” with unlicensed use, “as compared to vehicle
ITS services under the current rules.”98 As stated above, the rules do not impose a duty cycle or place
limits on transmission pulse duration.


89 Id. at 5-6.
90 Id. at 6-7.
91 Id. at 7-8.
92 Id. at 8.
93 Progeny Further Reply Comments at 4 (citing LMS Report and Order, 10 FCC Rcd at 4737 ¶ 82).
94 Id. at 4-5.
95 L+G Reply Comments at 3.
96 See LMS MO&O, 12 FCC Rcd at 13996 ¶ 61.
97 See L+G Reply Comments at 3.
98 See Havens Further Comments, Exhibit 1at 4.
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28.
We also reject the arguments that Progeny should be required at this time to provide more
data in order to assess the possible interference effects of its network.99 Progeny’s filings in this docket
provide adequate support for the waiver of the two particular rules that it requests in the Petition. Further,
the M-LMS rules contain other technical restrictions that protect against the potential for harmful
interference, including maximum power limits and the field testing requirement, and this waiver order
does not affect application of any of these rules.
29.
The field testing requirement set forth in Section 90.353(d) requires that Progeny
demonstrate through actual field tests that its M-LMS system will not cause unacceptable levels of
interference to Part 15 devices in the 902-928 MHz band. As the Commission has explained, Part 15
devices are used for a variety of important public, private, and consumer applications.100 These include
“smart grid” applications (such as those discussed above), including remote meter reading and utility load
management, as well as cordless telephones and wireless local area networks.101 As an additional
condition of this order, we require Progeny, once it has completed design of its M-LMS system but prior
to commencing commercial operations, to file a report in this proceeding that provides details on the M-
LMS system design (e.g., proposed transmit bandwidth, power levels and power controls, duty cycle,
sharing techniques, etc.), describes the process by which it carried out the field testing, including the
particular types of Part 15 devices tested, and demonstrates that its M-LMS system will not cause
unacceptable levels of interference to Part 15 devices that operate in the 902-928 MHz band. We will
place this report on public notice for comment. If no significant interference issues are raised, we will
promptly notify Progeny that it may commence commercial operations. If, however, significant
interference concerns are raised, we will determine what additional steps may be appropriate. Finally, we
reserve the right to require Progeny to take any necessary remedial action, including turning off its
service, if we find that its network operations are causing unacceptable levels of interference to Part 15
users in the 902-928 MHz band.
30.
Other issues. We also reject the other arguments by Havens, including that Progeny’s
Petition should not be granted because there may be some other technologies under consideration or
available, or because there may be other uses for the spectrum.102 These are not reasons to deny the
Petition, especially given the speculative nature of these arguments, arguments that are not relevant to the
waiver, the Commission’s intent discussed above that the M-LMS rules provide a flexible framework to
implement operations, and our finding that granting the waiver will serve the public interest. In addition,
we reject Havens’ argument that M-LMS “was allocated for ITS, which is a PMRS safety-oriented
service that must be primarily open and at no cost.”103 There is no requirement in the Commission’s rules
for M-LMS to be primarily “safety-oriented” or offered at no cost.
31.
We also reject arguments concerning our consideration of Progeny’s Petition in light of
the pending rulemaking proceeding in WT Docket No. 06-49.104 As we discuss above, we find that


99See Havens Comments at 9-10; Havens Further Comments, Exhibit 1 at 2-4; Itron Comments at 1; L+G Reply
Comments at 3. We note that the relief granted Progeny in this order is without prejudice to Havens’ allegations
concerning Progeny’s status as an M-LMS licensee. See Requests of Progeny LMS, LLC and PCS Partners, L.P. for
Waiver of Multilateration Location and Monitoring Service Construction Rules, Order, 23 FCC Rcd 17250, 17259 ¶
28 (WTB 2008).
100 See, e.g., M-LMS NPRM, 21 FCC Rcd at 2810 ¶ 3, 2811-12 ¶ 5.
101 Id.
102 See, e.g., Havens Comments at 4-7; Havens Further Comments at 2-3, 4 & Exhibits 1, 2, 5.
103 See Havens Comments at 7.
104 See Itron Comments at 5-6; L+G Comments at 3; Havens at 9.
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waiver of the two rules is in the public interest in this limited case, and there is no rule preventing us from
considering a limited waiver request based on the current rules while the rulemaking proceeding is
pending. A rulemaking proceeding involves consideration of certain policy changes and rules of general
applicability. In contrast, a waiver is granted if the Commission finds that particular facts make strict
compliance with a rule inconsistent with the public interest and the requested relief would not undermine
the policy objectives of the rule. In this waiver, the issues are limited, involving a particular provider and
application of the current rules to particular circumstances. In granting the waiver we are responding to a
specific proposal to operate a location service using a new system that will enhance location services in
areas where it has been difficult to provide such services, particularly indoors and in urban centers, and
which also may be available as a complement to emergency E911 services.
32.
Finally, we reject Havens’ allegation that there was not sufficient time to comment on the
Petition.105 We find that the time provided in the Public Notice was sufficient, and the time for
submitting reply comments was extended from the original deadline for reply comments in response to
Havens’ own request for added time to file comments and reply comments.

III.

CONCLUSION

33.
Based on the record and all of the circumstances presented in this matter, including the
public interest benefits that will be served, we find that granting the waivers to the extent discussed herein
serves the public interest. We conclude that Progeny’s waiver request satisfies the waiver criteria to
warrant waiver of Sections 90.155(e) and 90.355(g).

IV.

ORDERING CLAUSES

34.
Accordingly, IT IS ORDERED that, pursuant to Sections 2 and 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 152, 154(i), and Sections 0.131, 0.331, and
1.925 of the Commission’s rules, 47 C.F.R. §§ 0.131, 0.331, 1.925, the petition for waiver filed by
Progeny LMS, LLC dated March 8, 2011 IS GRANTED to the extent discussed herein.
35.
IT IS FURTHER ORDERED that Progeny LMS, LLC, file with the Commission a report
in WT Docket No. 11-49 providing details on the M-LMS system design and the other matters specified
in this Order. Progeny will file this report once it has completed design of its M-LMS system but prior to
commencing commercial operations. The report shall provide details on Progeny’s M-LMS system
design, describe the process by which Progeny carried out the field testing, including the particular Part
15 devices tested, and demonstrate that Progeny’s M-LMS system will not cause unacceptable levels of
interference to Part 15 devices that operate in the 902-928 MHz band.
FEDERAL COMMUNICATIONS COMMISSION
Rick Kaplan
Chief, Wireless Telecommunications Bureau
Julius Knapp
Chief, Office of Engineering and Technology


105 See Havens “Request to Reissue Public Notice and Place in Existing Relevant Docket and Request to Extend
Deadlines for Comments and Reply Comments,” WT Docket No. 11-49 (filed March 25, 2011); Havens Comments
at 3.
13

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