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Bath Township

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Released: May 17, 2013

Federal Communications Commission

DA 13-1135

Before the

Federal Communications Commission


In the Matter of

File No. 0005353918
Application for Modification of License of Station
Call Sign WNRM987


Adopted: May 17, 2013

Released: May 17, 2013

By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:



1. Hereby, we deny a Petition for Reconsideration (Petition) filed by Bath Township, Ohio
(Bath) of dismissal of its application for modification of license to increase the effective radiated power
(ERP) of station call sign WNRM987 from 40 watts to 125 watts.



2. Bath is licensed in the 800 MHz band and subject to 800 MHz rebanding.1 It represents that
it “has completed the rebanding of its infrastructure, and is currently cleaning up the administrative details
to enable closing to occur.”2 In the course of rebanding, Bath effected an upgrade from an analog FM
system to a Project 25 digital system. It contends that it lacks adequate in-building coverage from the
new system, a contention that it attributes to a “change in Bath’s geography since its analog system was
constructed.”3 Lacking the funds to build additional infrastructure to solve its in-building coverage
problem, Bath elected the “timely and economical solution” of increasing ERP from 40 watts to 125 watts
at its current site. Accordingly, Bath filed an application for modification of license including a consent
letter from Sprint Nextel Corporation “and a statement that Bath’s coverage area would not increase.”4
The Commission dismissed Bath’s modification application, noting that a freeze on applications that
expanded a station’s coverage contour was in effect and that “[c]learly raising the ERP from 40 watts to
125 watts increases the contour.”5 Bath, however, argues that it “does not have a need to expand its
coverage in terms of distance from its existing transmitter site, but only to provide better coverage within

1 Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, et al., Report and Order,
Fifth Report and Order, Fourth Memorandum Opinion and Order
, 19 FCC Rcd 14969 (2004); Supplemental Order
and Order on Reconsideration
, 19 FCC Rcd 25120 (2004), review denied sub nom. Mobile Relay Associates v.
457 F.3d 1 (D.C. Cir. 2006); Memorandum Opinion and Order, 20 FCC Rcd 16015 (2005); Second
Memorandum Opinion and Order
, 22 FCC Rcd 10467 (2007). See also Kay v. FCC, No. 06-1076 (D.C. Cir. filed
Feb. 24, 2006) (holding additional appeals in abeyance).
2 Petition for Reconsideration filed November 16, 2012. (Petition) at 2.
3 Id.
4 Id.
5 Id. quoting Commission return letter, Oct. 17, 2012.

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DA 13-1135

its existing coverage area.”6
3. Bath represents that “the Bureau misinterprets the Commission’s freeze policy.7 It argues
that the initial purpose of the October 10, 2008 freeze on the submission of 800 MHz applications was “to
create a stable spectral status quo during frequency reconfiguration.”8 Then, when the Commission
extended the freeze on October 12, 2012, it stated that the extension was merited because:
some relocating licensees in the U.S. Canada border region have yet to
conclude FRAs with Sprint, and most border region licensees have yet to
complete their retunes. Accordingly, to preserve currently vacant
channels for use by these licensees and avoid potential licensing conflicts
that could delay rebanding we have determined that temporarily
extending the freeze is in the public interest.9
Thus, Bath argues, “the Bureau extended the licensing freeze for a reason other than the
reason cited by the Commission for having the freeze in the first place.”10 This, Bath contends, means
that there “is absolutely no reason for the freeze to continue in the Canadian Border area other than in
Washington State.”11 It alleges that “the continuation of that freeze is contrary to the Commission’s
intention in imposing the freeze and there is no valid rationale for holding public safety licensees hostage
for more than four years.”12
Bath also argues that its application “is consistent with the Commission’s purpose for the
freeze” because it has “absolutely zero impact on the TA’s ability to perform its frequency allocation
work.” It also contends that the Commission “has always permitted 800 MHz licensees to move within
their 800 MHz interference contour calculated at full power, despite the presence of any freeze, as such
actions do not impact the licensing landscape.13 Bath contends, therefore, that its “application is
consistent with the rationale for the Commission’s imposition of the freeze.”14



Bath’s contention that 800 MHz licensees may move anywhere within their interference
contour is plainly irrelevant and Bath’s citation to Section 90.621(b)(6) is unavailing. It is only
“[a]pplications that have no effect on frequency or coverage (e.g., administrative updates,
assignments/transfers, and renewal-only applications) [that] are exempt from the freeze.”15 Bath’s
application clearly has an “effect . . . on coverage.” One cannot increase ERP from 40 watts to 125 watts,

6 Id. at 2.
7 Id. at 3.
8 Id. citing Third District Enterprises, LLC, Order, 27 FCC Rcd 1980 (WTB 2012).
9 Petition at 3-4 quoting Public Safety and Homeland Security Bureau Extends 800 MHz Application Freeze for
Wave 4 Border Area Licensees Along the U.S.-Canada Border, Public Notice, 27 FCC Rcd 12340 (PSHSB
2012)(October 12 Freeze Extension).
10 Petition at 4.
11 Id.
12 Id.
13 Id. at 5, citing, e.g., 47 C.F.R. § 90.621(b)(6)(emphasis in original).
14 Id. at 5.
15 October 12 Freeze Extension, 27 FCC Rcd at 12341. (Emphasis supplied.)

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DA 13-1135

all other things being equal, without increasing coverage.16 Thus Sprint’s statement that “the increased
ERP does not expand the contour of [Bath’s] existing 800 MHz station WNRM987”17 is wrong as a
matter of elementary physics.
It may be that Bath does not have a “need to expand its coverage”18 but only seeks to
improve in-building coverage. Nonetheless, its application for increased power expands Bath’s coverage
contour contrary to the stricture of the October 12, Freeze Extension, and, therefore, was properly
dismissed. Bath’s reliance on Section 90.621(b)(6) of the Commission’s rules19 is misplaced. The rule
merely says that a short-spaced station, relative to another station that was short-spaced, may modify its
facilities as long as the station’s 22 dBu interference contour does not extend beyond the 22 dBu
interference contour calculated based on maximum permitted ERP and antenna height. The cited rule
does not override the October 12 Freeze Extension which affects all applications for increased coverage
independent of whether those applications specify facilities that remain within the “full facilities” 22 dBu
interference contour.
The October 12 Freeze Extension pointed Bath to a means of achieving its desired in-
building coverage improvement:
for good cause shown, licensees may seek Special Temporary
Authorization (STA) to expand their facilities or add channels during the
freeze, based on an appropriate showing of public interest need as
described in the Bureau's December 2006 STA Guidance Public Notice.20
Inexplicably, Bath did not submit such a public interest need showing with its application, and chose
instead to have the application dismissed and then to engage in a collateral attack on the October 12
Freeze Extension
in the context of a petition for reconsideration of the dismissal of Bath’s application.21
Bath’s contention that the freeze is no longer required, except in Washington State, is
incorrect. Rebanding is still progressing in the Canada border area. In the course of rebanding, some
licensees have encountered interference, others have identified unforeseen combiner issues, both of which
circumstances have necessitated frequency changes. Thus, the October 12 Freeze Extension is consistent
with the purpose the Commission articulated when it first imposed the freeze: “to create a stable spectral
status quo during frequency reconfiguration.”22 Frequency reconfiguration is not complete in the Canada
border, and it will not be until all stations are operating on their replacement frequencies. Moreover, we
are not persuaded by Bath’s strained argument that there is an inconsistency between the “maintain a
stable spectral status quo” rationale underlying the freeze first imposed and the stated rationale of the
October 12 Freeze Extension, i.e. “to preserve currently vacant channels for use by [relocating] licensees
and avoid potential licensing conflicts that could delay rebanding.” Indeed, the two rationales are

16 See, e.g., 47 C.F.R. § 73.699
17 Letter from Kyle Entz, Manager, Regulatory Affairs, Sprint Nextel Corp. to Public Safety and Homeland Security
Bureau, Federal Communications Commission, dated April 6, 2012.
18 Petition at 2.
19 47 C.F.R. § 90.621(b)(6).
20 October 12 Freeze Extension, 27 FCC Rcd at 12341, citing Public Safety and Homeland Security Bureau
Provides Guidance for Public Safety Licensees With Regard to License Application and Special Temporary
Authorization Procedures and Payment of Frequency Relocation Costs for Public Safety Facilities Added During
800 MHz Band Reconfiguration, , Public Notice, 21 FCC Rcd 14658 (PSHSB 2006).
21 See Petition at 1-2.
22 See supra n.8.

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DA 13-1135

complementary, not contradictory as Bath claims.


10. Bath could have sought Special Temporary Authorization pursuant to the 2006 STA Guidance
Public Notice; it could have sought waiver of the October 12 Freeze Extension. Instead, it chose to file
an application inconsistent with the October 12 Freeze Extension, had that application properly rejected
by the Bureau, and then attempted to litigate the bona fides of the October 12 Freeze Extension in the
context of a petition for reconsideration of the application dismissal. Bath’s resources would better have
been spent by re-filing its application accompanied by a showing of need for an STA or a request for
waiver.23 Bath’s application was properly dismissed pursuant to the October 12 Freeze Extension and its
arguments to the contrary lack merit.



11. Accordingly, IT IS ORDERED, that the petition for reconsideration filed November 16, 2012
by Bath Township, Ohio IS DENIED.
12. 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.
Michael J. Wilhelm
Deputy Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau

23 Any such filing from Bath will be considered on its merits; this Memorandum Opinion and Order should not be
construed as advance approval of such a filing.

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