Federal Communications Commission
DA 12-2058
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
)
)
JAMES T. POTTS
)
File No. 0004976641
)
Request for Waiver of Sections 90.307 and 90.309 )
of the Commission’s Rules
)
ORDER
Adopted: December 20, 2012
Released: December 21, 2012
By the Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:
I.
INTRODUCTION
1.
James T. Potts filed an application and request for waiver for a new 470-512 MHz band
(T-Band) private land mobile radio (PLMR) station.1 Specifically, Potts requests a waiver because he
proposes to operate a mobile relay station in the vicinity of a protected co-channel television station. For
the reasons stated below, we deny the Waiver Request and will dismiss the application.
II.
BACKGROUND
2.
Sections 90.307 and 90.309 of the Commission’s Rules provide that T-Band PLMR
stations may not be located within a certain distance (depending on the PLMR station’s antenna height
and effective radiated power) of co-channel and adjacent channel television stations identified in the
Commission’s publication “TV stations to be considered in the preparation of Applications for Land
Mobile Facilities in the Band 470-512 MHz.”2 Potts acknowledges that Television Station WATR-TV
(now WCCT-TV), Waterbury, Connecticut, is identified in the publication and is within the protection
criteria of his proposed facility.3 He notes, however, that the station now broadcasts from Farmington,
Connecticut, which is not within the protection criteria for Potts’s proposed PLMR station. Potts
therefore requests a waiver of Sections 90.307 and 90.309 to permit operation of a co-channel PLMR
station at Franklin Township, New Jersey.4
3.
On February 22, 2012, the President signed the Middle Class Tax Relief and Job Creation
Act of 2012 (Spectrum Act) into law.5 Section 6103 of the Spectrum Act provides that, not later than
nine years after the date of enactment, the Commission shall reallocate T-Band spectrum “currently used
1 File No. 0004976641 (filed Dec. 2, 2011) and accompanying Request for Waiver (Waiver Request).
2
See 47 C.F.R. §§ 90.307(c), (e), 90.309(a).
3 Waiver Request at 1.
4 Potts also requests a waiver of Section 90.305 of the Commission’s Rules, 47 C.F.R. § 90.305, regarding the
permissible distance of T-Band PLMR stations from particular urban centers. Because we deny the requested
waiver of Sections 90.307 and 90.309, we need not address the request for waiver of Section 90.305.
5
See Pub. L. No. 112-96, 126 Stat. 156 (2012).
Federal Communications Commission
DA 12-2058
by public safety eligibles.”6 The Act further instructs the Commission to “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.”7 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.8
4.
On April 26, 2012, the Wireless Telecommunications Bureau and the Public Safety and
Homeland Security Bureau (Bureaus) issued a public notice announcing a limited suspension of the
acceptance and processing of certain T-Band applications.9 The
Suspension Notice suspended the
acceptance and processing of T-Band applications “in order to stabilize the existing spectral landscape
while the Commission considers issues surrounding future use of the T-Band, solicits input from
interested parties, and works to implement the directives of the Act.”10 In the
Suspension Notice, the
Bureaus stated that they would not accept or process applications “that would, if granted, tend to increase
the degree to which the 470-512 MHz band is currently licensed,” including applications that add
locations.11 On June 7, 2012, the Bureaus issued a subsequent public notice to clarify that “applications
that seek to add or change locations are suspended only if the new location extends the station’s
authorized interference contour in any direction.”12
5.
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, including UHF channels 14-20. While that
Notice made no proposals
regarding the reallocation and auction of the T-Band spectrum used by Public Safety eligibles,13 the
Commission noted that the T-Band would be addressed in a forthcoming
Public Notice intended to
advance the record on issues related to the technical, administrative, legal, and policy implications of the
Spectrum Act for T-Band licensees.14
III.
DISCUSSION
6.
In light of the Spectrum Act and in accordance with the
Suspension Notice, we find that
Potts’s application would, if granted, increase the degree to which the T-Band is currently licensed
because the application is for a new repeater that would expand Potts’s authorized interference contour.
We deny Potts’s request for waiver of Sections 90.307 and 90.309 because, as explained in the
Suspension Notice, it is not in the public interest for us to expand further T-Band encumbrance, especially
6
Id., § 6103(a).
7
Id.
8
Id., § 6103(b), (c).
9 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) (
Suspension Notice).
10
Id. at 4218.
11
Id. at 4219.
12 Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau Clarify Suspension of the
Acceptance and Processing of Certain Part 22 and 90 Applications for 470-512 MHz (T-Band) Spectrum,
Public
Notice, 27 FCC Rcd 6087, 6087-88 (WTB/PSHSB 2012).
13
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, 12365 ¶ 19 (2012).
14
Id.
2
Federal Communications Commission
DA 12-2058
into areas where Part 90 of the Commission’s rules does not permit the requested T-Band operation.15
Section 1.934(d)(2) of the Commission’s rules provides that an application containing a waiver request is
defective if the Commission denies the waiver request and the application does not contain an alternative
proposal that fully complies with the rules.16 Because Potts submitted no such alternative proposal, we
dismiss his application as defective.17
IV.
ORDERING CLAUSES
7.
Accordingly, IT IS ORDERED pursuant to Sections 4(i) of the Communications Act of
1934, as amended, 47 U.S.C. § 154(i), and Section 1.925 of the Commission’s rules, 47 C.F.R. § 1.925,
that the Waiver Request associated with application File No. 0004976641, filed by the James T. Potts on
December 2, 2011, IS DENIED.
8.
IT IS FURTHER ORDERED that application File No. 0004976641 SHALL BE
DISMISSED consistent with this
Order and the Commission’s rules.
9.
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
15
See Town of Sandwich, Massachusetts,
Order, 27 FCC Rcd 9173, 9174 ¶ 4 (PSHSB PLD 2012); Borough of
Roselle Park, New Jersey,
Order, 27 FCC Rcd 8300, 8301 ¶ 4 (PSHSB PLD 2012).
16 47 C.F.R. § 1.934(d)(2).
17
See Suspension Notice, 27 FCC Rcd at 4219.
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