Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Third District Enterprises LLC Order Denying 800 MHz Waiver Requests

Download Options

Released: February 22, 2012

Federal Communications Commission

DA 12-254

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Third District Enterprises, LLC
)
File Nos. 0004819360
Applications for New 800 MHz Stations in
)
0004819368
Los Angeles and San Diego Counties, California;
)
Requests for Waiver of the
)
Wave 4 Freeze on New Applications and
)
Section 90.621 of the Commission’s Rules
)

Order

Adopted: February 22, 2012

Released: February 22, 2012

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

I.

INTRODUCTION

1.
On July 28, 2011, Third District Enterprises, LLC (Third District) filed the above-
captioned applications for new conventional Industrial/Land Transportation 806-821/851-866 MHz (GO)
stations, along with requests for waiver of the Commission’s freeze on filing new applications pending
reconfiguration of the 806-824/851-869 MHz band (800 MHz band), and waiver of the co-channel
separation requirements provided in Section 90.621 of the Commission’s rules.1 For the following
reasons, we deny the waiver requests and dismiss the applications.

II.

BACKGROUND

2.
On July 18, 2011, Federal Express Corporation (FedEx) filed applications to cancel its
licenses for Stations WPUS566 and WPIE390 located in Southern California.2 In particular, the license
for Station WPUS566 authorized conventional Industrial/Land Transportation (GO) operations on
frequency pair 815/860.3375 MHz on Sunset Peak in Los Angeles County, California. The license for
Station WPIE390 authorized conventional Industrial/Land Transportation (GO) operations on frequency
pair 812/857.4000 MHz on Polamar Mountain in San Diego County, California. The cancellations were
accepted the following day, on July 19, 2011.3
3.
Nine days later, on July 28, 2011, Third District filed its applications for new
conventional Industrial/Land Transportation 806-821/851-866 MHz (GO) licenses, proposing to operate
on the same frequencies and from the same locations that had previously been authorized under FedEx’s
cancelled licenses. In particular, Third District’s application file number 0004819368 seeks authority to
operate on frequency pair 815/860.3375 MHz on Sunset Peak in Los Angeles County, California, and


1 FCC File Nos. 0004819360 and 0004819368, filed by Third District Enterprises, LLC, Att. “Request for Rule
Waivers” (July 28, 2011) (Waiver Requests).
2 FCC File Nos. 0004805372 (WPUS566) and 0004805483 (WPIE390), filed by Federal Express Corporation
(July 18, 2011).
3 ULS Reference Nos. 5189244 (WPUS566) and 5189252 (WPIE390) Notice of License Cancellation (July 19,
2011).

Federal Communications Commission

DA 12-254

Third District’s application file number 0004819360 seeks authority to operate on frequency pair
812/857.4000 MHz on Polamar Mountain in San Diego County, California.4
4.
In July 2004, the Commission mandated reconfiguration of the 800 MHz band to
eliminate interference to public safety communications in the band.5 To accomplish reconfiguration
effectively and with limited adverse affect on licensees, the Commission determined that band
reconfiguration would be implemented by National Public Safety Planning Advisory Committee
(NPSPAC) region.6 To maintain a stable spectral status quo during reconfiguration of each region, the
Commission concluded that a freeze on accepting 800 MHz applications for new licenses during the
reconfiguration process would be appropriate.7 In particular, immediately upon release of the public
notice announcing the start of the negotiation period in a region,8 the Commission no longer accepts
applications for new licenses, changes in frequencies of existing facilities, or coverage increases for areas
in the NPSPAC region and areas within 70 miles of the borders of the NPSPAC region.9 The
Commission further determined that the freeze on applications would last 30 working days after the
completion of the negotiation period for a given region.10
5.
The Transition Administrator (TA), which oversees the reconfiguration process, has
assigned each of the NPSPAC regions to one of four basic “prioritization waves” with staggered starting
dates for implementing reconfiguration.11 Under the TA’s approved plan, the fourth wave (Wave 4)
consists of 12 NPSPAC regions, all of which share a border with either Canada or Mexico.12 In relevant
part, five Wave 4 NPSPAC regions share a border with Mexico, including Region 5 (Southern
California),13 where Third District proposes to locate its new stations. In addition to the designation of


4 Third District’s proposed site on Palomar Mountain would be located at 33-18-30.1 N, 116-50-23.1 W, and its
proposed site on Sunset Peak would be located at 34-11-17.0 N, 117-42-19.0 W, the same locations that were
authorized under the licenses for Stations WPIE390 and WPUS566, respectively.
5 In the Matter of Improving Public Safety Communications in the 800 MHz Band, Report and Order, WT Docket
No. 02-55, 19 FCC Rcd 14969 (2004) (800 MHz Report and Order); see also, In the Matter of Improving Public
Safety Communications in the 800 MHz Band, Supplemental Order and Order on Reconsideration, WT Docket
No. 02-55, 19 FCC Rcd 25120 (2004) (800 MHz Supplemental Order); In the Matter of Improving Public Safety
Communications in the 800 MHz Band, Memorandum Opinion and Order, WT Docket No. 02-55, 20 FCC Rcd
16015 (2005) (800 MHz Memorandum Opinion and Order).
6 800 MHz Report and Order, 19 FCC Rcd at 14977, ¶ 11 and 15075, ¶ 201.
7 Id. at 15078, ¶ 204.
8 See id. at 15076, ¶ 201 (stating that 30 days before the start date of reconfiguration in a region, the Commission
will issue a public notice initiating a three-month voluntary negotiation period for that region, and if voluntary
negotiations do not yield an agreement, the parties are required to enter into a three-month mandatory negotiation
period).
9 Id. at 15078, ¶ 204, modified, 800 MHz Supplemental Order, 19 FCC Rcd at 25159, ¶ 87; Wireless
Telecommunications Bureau Outlines Application Freeze Process for Implementation of 800 MHz Band
Reconfiguration, Public Notice, 20 FCC Rcd 8905, 8906 (PSCID WTB 2005) (Application Freeze Public Notice).
10 800 MHz Report and Order, 19 FCC Rcd at 15078, ¶ 204.
11 Id. at 15075, ¶ 201; Wireless Telecommunications Bureau Approves the Basic Reconfiguration Schedule Put
Forth in the Transition Administrator’s 800 MHz Regional Prioritization Plan, Public Notice, 20 FCC Rcd 5159,
5159 (WTB 2005) (TA Plan Public Notice). Under the initial Regional Prioritization Plan, the first wave (Wave 1)
was scheduled to commence on June 27, 2005, the second wave (Wave 2) on October 3, 2005, the third wave
(Wave 3) on January 3, 2006, and Wave 4 on April 3, 2006. Id. at 5159-60.
12 TA Plan Public Notice, 20 FCC Rcd at 5160.
13 The other NPSPAC regions that share a border with Mexico are Region 3 (Arizona), Region 29 (New Mexico),
Region 50 (Central Western Texas), and Region 53 (Southern Texas).
2

Federal Communications Commission

DA 12-254

NPSPAC regions along the Mexico border, under protocols the United States has with Mexico, all
operations in the 800 MHz band within the Mexico border region, defined as the area that falls within
110 km (68.4 miles) of the U.S./Mexico border, must comply with international agreements currently in
effect.14 The negotiations to modify the agreements between the United States and Mexico as a result of
reconfiguration have been ongoing for several years and continue to this day.15 Until the negotiations are
finalized, reconfiguration in Wave 4 NPSPAC regions that also fall within the Mexico border region
cannot be completed.16
6.
To maintain a stable spectrum environment for purposes of reconfiguration, the freeze on
accepting 800 MHz applications in the Wave 4 NPSPAC regions was initiated on June 2, 2006.17
Because negotiations between the United States and Mexico have lasted longer than originally
anticipated, the Commission has extended both the start date for reconfiguration in the Wave 4 NPSPAC
regions that border Mexico, and the period during which the acceptance of applications is suspended in
those regions. The suspension period was in effect in the U.S./Mexico NPSPAC border regions when
Third District filed its applications,18 and is currently scheduled to end on May 14, 2012.19
7.
Third District proposes to operate its facilities in Wave 4 NPSPAC Region 5, and, as a
result, requests a waiver of the freeze on the acceptance of applications in that region.20 Third District


14 See 800 MHz Report and Order, 19 FCC Rcd at 15063, ¶ 176 (noting that “[the United States] agreements with
Mexico and Canada establish a distance beyond which U.S. licensees need not consider border stations when
selecting 800MHz channels” and further explaining that “[t]he distance is 140 km (87 mi.) and 110 km (68.4 mi.)
from the border for Canada and Mexico, respectively”); 47 C.F.R. § 90.619(a) (providing that all operations in the
800 MHz Band within 110 km (68.4 miles) of the U.S./Mexico border (‘Mexico border region’) shall be in
accordance with international agreements between the U.S. and Mexico”).
15 In adopting its new 800 MHz band plan, the Commission recognized that the plan would be inconsistent in some
respects with international agreements in effect at that time. 800 MHz Report and Order, 19 FCC Rcd at 14986,
¶ 25; see id. at 15061, ¶ 175 (noting that the existing border plans contained in Section 90.619 of the Commission’s
rules have evolved from periodic negotiations with Canada and Mexico and have been adjusted from time to time).
As a result, the Commission acknowledged that implementing the band plan in areas of the United States bordering
Mexico and Canada would require modifications to international agreements for use of the 800 MHz band in the
border areas. Id. at 14986, ¶ 25.
16 The Commission has afforded the TA flexibility in the timing of band reconfiguration to accommodate
agreements with border countries, and has acknowledged the start date for implementing reconfiguration in Wave 4
regions could be delayed pending conclusion of negotiations between the United States and Canada and Mexico.
TA Plan Public Notice, 20 FCC Rcd at 5160, n.8.
17 See Wireless Telecommunications Bureau Announces That 800 MHz Band Reconfiguration for Non-NPSPAC
Channels Will Commence July 3, 2006, in the NPSPAC Regions Assigned to Wave 4, Public Notice, 21 FCC Rcd
6267, 6268 (WTB June 2, 2006) (announcing that the reconfiguration process for non-NPSPAC channels would
start July 3, 2006) (Application Freeze Public Notice). The June 2, 2006 public notice announced that, effective
immediately, “we are freezing the filing of 800 MHz applications for non-NPSPAC channels in Wave 4.” Id.
at 6268-69.
18 See Public Safety and Homeland Security Bureau Extends 800 MHz Rebanding Negotiation Period for Wave 4
Border Area NPSPAC and Non-NPSPAC Licensees Along the U.S.-Mexico Border, Public Notice, 26 FCC Rcd
9408, 9408 (PSHSB rel. June 30, 2011) (extending the filing freeze on new applications in the U.S.-Mexico border
region until November 16, 2011).
19 Public Safety and Homeland Security Bureau Extends 800 MHz Rebanding Negotiation Period for Wave 4
Border Area NPSPAC and Non-NPSPAC Licensees Along the U.S.-Mexico Border, Public Notice, WT Docket
No. 02-55, DA 11-2087 (PSHSB rel. Dec. 29, 2011).
20 Waiver Requests at 1-2. The Southern California counties included in Wave 4 are Imperial, Kern, Los Angeles,
Orange, Riverside, San Bernadino, San Diego, San Luis Obispo, Santa Barbara, and Ventura. TA Plan Public
Notice
, 20 FCC Rcd at 5161, Appendix.
3

Federal Communications Commission

DA 12-254

argues that the freeze is unnecessary because reconfiguration has not begun in Region 5; the applications
do not “disturb the landscape” for reconfiguration in the region; and the Commission has already granted
similarly situated applications.21 Acknowledging that the locations of its proposed stations are within
88 km (55 miles) of two stations currently licensed on the same frequencies to Nextel of California, Inc.,
Third District also requests waiver of Section 90.621(b) of the Commission’s rules,22 which sets forth the
minimum separation requirements between co-channel stations in the 800 MHz band.23 Nextel of
California, Inc. (Nextel of California), a wholly owned subsidiary of Sprint Nextel Corporation
(collectively “Sprint Nextel”) filed an opposition on December 9, 2011, asking the Commission to deny
Third District’s applications and waiver requests.24 Third District replied on December 19, 2011.25

III.

DISCUSSION

8.
We initially deny Third District’s request for waiver of the Commission’s freeze on
accepting new applications in the 800 MHz band because it has not met either prong of the Commission’s
standard for granting waivers. We may grant a waiver request, pursuant to Section 1.925 of the
Commission’s rules, if it is shown that: (1) the underlying purpose of the rule would not be served or
would be frustrated by application to the instant case, and that a grant of the requested waiver would be in
the public interest; or (2) in view of unique or unusual factual circumstances of the instant case,
application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the
applicant has no reasonable alternative.26
9.
Third District first asserts the Commission should modify its decision on when to initiate
a freeze on applications in Southern California so that the suspension period begins only after
reconfiguration actually commences in that region. Third District argues that “[b]ecause the rebanding
process has not begun, there is no need to unnecessarily retain the spectrum landscape in place – that
landscape should be retained only when rebanding actually begins.”27 Acknowledging that “no rebanding
will occur”… “[u]ntil there is an agreement between Mexico and the United States,” Third District
concludes that “the use of spectrum is unnecessarily suspended.”28 We reject this argument as an
untimely petition for reconsideration. Section 1.429 of the Commission’s rules requires petitions for
reconsideration of a final action taken in a rulemaking proceeding to be filed within 30 days of the date of
public notice of the action.29 Moreover, Section 1.106 of the Commission’s rules imposes the same 30-
day filing deadline for non-rulemaking actions.30 The Commission’s 800 MHz Report and Order
establishing the freeze on applications upon the announcement that negotiations are scheduled to begin in


21 Waiver Requests at 1-2.
22 47 C.F.R. § 90.621(b).
23 Waiver Requests at 2-3.
24 Opposition of Nextel of California, Inc. to Third District Enterprises, LLC Request for Waiver, filed by Sprint
Nextel Corporation (Dec. 9, 2011) (Opposition). In footnote 3 of its Opposition, Sprint Nextel states that “Exhibit A
lists the Sprint Nextel Licensees that would be impermissibly short-spaced by Third District’s applications.” Id.
at 4, n.3. After realizing it inadvertently omitted the exhibit, Sprint Nextel filed Exhibit A to its Opposition on
January 10, 2012. Opposition of Nextel of California, Inc. to Third District Enterprises, LLC Request for Waiver
Exhibit A, filed by Sprint Nextel Corporation (Jan. 10, 2012) (Opposition Exhibit A).
25 Reply to Opposition, filed by Third District Enterprises, LLC (Dec. 19, 2011) (Reply).
26 47 C.F.R. § 1.925(b)(3)(i)-(ii).
27 Waiver Requests at 1.
28 Id.
29 47 C.F.R. § 1.429.
30 Id. § 1.106(f).
4

Federal Communications Commission

DA 12-254

a NPSPAC region was released on August 6, 2004, and appeared in the Federal Register on
November 22, 2004.31 The freeze on accepting applications for Wave 4 NPSPAC regions was initiated
June 2, 2006. In either case, Third District’s argument that the freeze on applications should not be
imposed until reconfiguration actually begins in NPSPAC Region 5 is late by several years.
10.
Third District further argues that grant of its applications would not counter the purpose
underlying the Commission’s decision to suspend the filing and processing of applications because its
applications seek the same authority afforded FedEx under FedEx’s licenses, which were cancelled after
initiation of the freeze. In particular, Third District contends that the purpose of the freeze is “to prevent
the constant change of the spectrum landscape while rebanding is taking place”32 and that even if “the
Commission wished to freeze the spectrum landscape for rebanding purposes” before reconfiguration
begins, its applications do “not disturb that landscape.”33 Noting that it has “applied to use the
frequencies under the precise parameters for which FedEx was previously authorized,” Third District
concludes that while its applications “may represent a new use of these frequency assignments for Third
District, it does not represent any change in the use of the frequency assignments during virtually the
entire time that the freeze on 800 MHz applications in Southern California has been in effect.”34
11.
We disagree. First, contrary to Third District’s claim, the Commission did not “freeze
the spectrum landscape for rebanding purposes” or initiate the freeze “to prevent the constant change of
the spectrum landscape while rebanding is taking place.” Rather, the Commission imposed a freeze on
the acceptance of new 800 MHz applications to ensure “a stable spectral status quo” in each particular
NPSPAC region.35 In particular, the Commission suspended acceptance of new applications, in this
proceeding, to ensure a sufficient amount of spectrum would remain available for reconfiguration in any
given NPSPAC region.36 This is common practice when the Commission announces it intends to change
the licensing scheme for a given service. The Commission’s purpose in freezing the acceptance of
applications in its proceedings is to stabilize spectrum inventory upon announcement of a change to its
licensing rules to ensure spectrum will be sufficiently available to meet its ultimate objectives. In each
proceeding, the Commission therefore determines the appropriate time for initiating a freeze. For
example, in proceedings where the Commission has announced its intent to change a licensing regime
from site-based to geographic area licensing, it has initiated freezes on accepting applications for the
given service as early as the notice of proposed rulemaking stage.37 In the 800 MHz proceeding, the


31 69 Fed.Reg. 67823 (Nov. 22, 2004).
32 Waiver Requests at 1.
33 Id.
34 Id.
35 800 MHz Supplemental Order, 19 FCC Rcd at 25159, ¶ 87.
36 See Public Safety and Homeland Security Bureau Provides Guidance for Public Safety Licensee 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,
14658 (PSHSB 2006) (stating that “[t]o preserve the spectrum landscape, [the Commission] provided for a freeze on
800 MHz applications during negotiations in each wave”).
37 See, e.g., In the Matter of Revision of Part 22 and Part 90 of the Commission’s Rules to Facilitate Future
Development of Paging Systems, Notice of Proposed Rulemaking, 11 FCC Rcd 3108, 3136, ¶ 139 1996) (stating
that “[b]ecause of the fundamental changes we are proposing in our paging licensing rules, we are suspending
acceptance of new applications for paging channels as of the adoption date of the Notice,” … “[w]e believe that after
the public has been placed on notice of our proposed rule changes, continuing to accept new applications under the
current rules would impair the objectives of this proceeding, ” i.e., “to transition to a geographic licensing approach
through competitive bidding”).
5

Federal Communications Commission

DA 12-254

Commission rejected a request to impose a freeze across the entire band for a multi-year period.38
Instead, concerned that a blanket freeze across all regions at one time would have adverse effects on
company business plans, the Commission found a middle ground by deciding to initiate suspension
periods, by region, based on its determination of when reconfiguration would start in a given region.39 In
this case, the Commission did just that for Wave 4, but has had to extend the suspension period pending
final agreements between the United States and Mexico.
12.
Moreover, the Commission has stated that the TA must have a stable spectrum
environment in which licensees are not allowed to change channels or expand their coverage.40 While the
Commission has allowed certain exceptions to the application freeze, it did not provide an exception to
the freeze on accepting 800 MHz applications to allow for the filing of new applications where an
incumbent licensee has cancelled a license during the suspension period. In fact, Third District has not
shown that it meets any of the exceptions to the application freeze. Third District is not an incumbent
licensee filing an application to modify an existing station to implement band reconfiguration, and it is
not an incumbent licensee filing an application that neither changes the frequency nor expands the
coverage area assigned to an existing station.41 Nor is Third District an incumbent licensee renewing a
license or a party filing an application to assign or transfer a licensed station.42
13.
Finally, Third District asserts the freeze only applies to spectrum “cleared through the
800 MHz band reconfiguration process, i.e., either because Nextel has abandoned the spectrum or the
incumbent licensee has been relocated by the Transition Administrator pursuant to a frequency relocation
agreement with Nextel,” and that “[t]here is nothing in the Commission’s regulations or the applicable
rulemaking orders to suggest that the freeze applies to spectrum that is abandoned outside the scope of the
reconfiguration process.”43 Third District confuses post-reconfiguration eligibility rules with the scope of
the application freeze. Contrary to Third District’s assertions, the Commission imposed the freeze on
accepting applications for new licenses on all 800 MHz frequencies in a given region pending the
completion of the negotiation period under the reconfiguration process.44
14.
In this case, when FedEx cancelled its licenses for Stations WPUS566 and WPIE390, the
spectrum associated with those licenses was returned to the Commission and is now part of its unlicensed
800 MHz spectrum inventory. Unlicensed spectrum held by the Commission is made available to the TA
as replacement spectrum during the reconfiguration process, whether that spectrum was unlicensed before
initiation of a suspension period or whether it became unlicensed during the suspension period upon
cancellation of a license by Sprint Nextel or any other licensee. Moreover, we agree with Sprint Nextel
that the Southern California NPSPAC Region 5 is “both limited in available 800 MHz channels and


38 800 MHz Report and Order, 19 FCC Rcd at 15078, ¶ 204.
39 Id.
40 800 MHz Memorandum Opinion and Order, 20 FCC Rcd at 16057, ¶ 97.
41 See 800 MHz Report and Order, 19 FCC Rcd at 15078, ¶ 204 (stating that the freeze does not include
modification applications filed to implement band reconfiguration or modification applications that do not change
the frequency or expand the coverage area of existing systems).
42 Application Freeze Public Notice, 21 FCC Rcd at 6269 (reiterating that “the freeze does not apply to modification
applications filed to implement 800 MHz band reconfiguration, modification applications filed that do not change an
800 MHz frequency or expand an 800 MHz station’s existing coverage area (e.g., administrative updates),
assignments/transfers, or renewal-only applications”).
43 Reply at 2.
44 800 MHz Report and Order, 19 FCC Rcd at 15078, ¶ 204; 800 MHz Supplemental Order, 19 FCC Rcd at 25159,
¶ 87.
6

Federal Communications Commission

DA 12-254

heavily congested.”45 We find that grant of Third District’s applications would be contrary to the purpose
of the Commission’s application freeze in the 800 MHz band. Grant of Third District’s applications
would reduce the amount of spectrum currently available for reconfiguration in the already congested
Wave 4 NPSPAC border Region 5.
15.
Finally, we reject Third District’s argument that the Commission must grant its
applications because the Commission has granted similarly situated applications. Third District contends
that because the Commission has granted other applications “seeking the use of 800 MHz channels in
Southern California after the FCC announced that it was suspending the acceptance of 800 MHz
applications,” it must also grant its applications.46 To support its argument, Third District lists seven
licenses granted during the Wave 4 suspension period – two granted in December 2009,47 and five granted
in April 2010.48
16.
We acknowledge that the applications for these licenses were granted in error in large
part because of staff confusion at that time over which areas – entire NPSPAC regions or the Mexico
border region – were affected by the freeze on applications.49 We also note that frequency coordinators
process applications that seek licenses for 800 MHz channels that are subject to a freeze and that do not
include requests for waiver of the application freeze. Immediately upon discovering the problem,
Mobility Division management created a “processing utility” that now assists staff in determining
whether an application falls within the scope of the freeze. While we make every effort to ensure
applications are processed correctly, sometimes errors do occur, and we correct those errors as we
become aware of them and will continue to do so. Regardless, as the Commission has previously held, an
erroneous grant of a license to a previous applicant is not grounds for granting a pending, in this case
Third District’s, application.50


45 Opposition at 3.
46 Waiver Requests at 1-2.
47 FCC File No. 0004053127 (WQLD476), filed by Laing Electronics (Dec. 3, 2009) and FCC File No. 0004053211
(WQLD477), filed by Mobile Relay Associates (Dec. 3, 2009) (both granted December 14, 2009).
48 FCC File No. 0004192319 (WQLR888), filed by Mobile Relay Associates (Apr. 6, 2010) (granted April 12,
2010); FCC File No. 0004207603 (WQLT274), filed by Mobile Relay Associates (Apr. 12, 2010) (granted April 20,
2010); FCC File No. 0004207604 (WQLT275), filed by Laing Electronics (Apr. 12, 2010) (granted April 20, 2010);
FCC File No. 0004220500 (WQLV273), filed by Fisher Wireless Services Inc. (Apr. 21, 2010) (granted April 30,
2010); and FCC File No. 0004219378 (WQLV269), filed by Day Management Corp dba Day Wireless Systems
(Apr. 23, 2010) (granted April 30, 2010).
49 We note that, as already discussed, not all counties included in the NPSPAC border regions are included in the
Mexico border region.
50 See In re Application of Quinnipiac College, Hamden, Connecticut for a Construction Permit to Modify the
Facilities of Noncommercial Educational FM Station WQAQ, Memorandum Opinion and Order, 8 FCC Rcd 6285,
6286, ¶ 12 (1993) (Quinnipiac College) (stating that we have previously held that prior erroneous grants of waivers
of Commission requirements by staff will be given no precedential weight); In the Matter of Mobilcom Pittsburg,
Inc. et al., Memorandum Opinion and Order, 18 FCC Rcd 23053, 23059, ¶ 13, n.57 (PSPWD WTB 2003) (stating
that an error in granting an application provides no basis for continuing to grant applications that are inconsistent
with Commission rules or policies … and that the appropriate course of action is to consider whether to take some
action with respect to the affected license or licensee) (citing In the Matter of Applications of Warren C. Havens,
Memorandum Opinion and Order, 17 FCC Rcd 17527, 17532, ¶ 11 (2002) (affirming that an error in granting
applications would provide no basis for granting the petitioner’s applications) (citing Quinnipiac College, 8 FCC
Rcd at 6286, ¶ 12).
7

Federal Communications Commission

DA 12-254

17.
We further note that not all 800 MHz applications filed within the suspension period for
the Wave 4 U.S./Mexico NPSPAC regions have been granted. Most have not.51 Of particular note, on
February 16, 2010, several months before Third District filed its applications, Exxon Communications
Company (Exxon) filed an application to modify its license for trunked Industrial/Land Transportation
806-821/851-866 MHz (YO) Station WPXY896 located in Los Angeles County.52 The application
sought authority to add frequency pairs that had been surrendered to the Commission after FedEx
cancelled its licenses for Stations KNEC210 and KNDH606.53
18.
In its waiver request, Exxon explained that it had obtained coordination of the
frequencies through Enterprise Wireless Alliance, confirming that the channels were not currently
authorized for use by any other party within a 70-miles radius of its proposed site, and its understanding
was that the channel pairs were “not designated for assignment to any other party (as replacement
channels) for purposes of 800 MHz rebanding.”54 Exxon’s application, however, was dismissed by letter
dated September 25, 2010, explaining that:


51 For example, Worth Resources filed an application on May 21, 2009, along with a request for waiver of the
Wave 4 freeze on 800 MHz applications, seeking authority to operate in Los Angeles county on frequency pairs
811/856.8375 and 813/858.8625 MHz. FCC File No. 0003847230, filed by Worth Resources (May 21, 2009). The
request for waiver was denied and the application dismissed on August 4, 2009. ULS Reference No. 4890484 (File
No. 0003847230) Notice of Dismissal (Aug. 4, 2009). The letter denying Worth Resources’ request for waiver
explained that “[w]hile there is no impact to existing licensed stations, the frequencies requested may be needed to
accommodate the reconfiguration of existing licensees. Given that the Mexico band plan is not finalized, the
Commission does not know how licensees in L.A. will be impacted by the final band plan. Your proposed new
operation would frustrate the intended purpose of the freeze which is to create a stable environment to plan and
execute rebanding along the U.S.-Mexico border. Since your waiver request is denied, your application is deemed
defective and is hereby dismissed.” Id.
Applications seeking authority to operate in the Wave 4 Southern California Region 5 on 800 MHz band frequencies
that were processed through frequency coordination without requests for waiver of the application freeze have also
been dismissed. See, e.g., FCC File No. 0004224045, filed by Day Management Corp dba Day Wireless Systems
(Los Angeles County) (Apr. 26, 2010) (dismissed as defective by letter dated July 3, 2010, stating that “[t]he request
violates the application filing freeze instituted by DA 06-1183 on June 2, 2006 and recently extended by DA 10-
1229 on June 30, 2010”); FCC File No. 0004638387, filed by Coachella Valley Water District (Imperial County)
(Mar. 3, 2011) (dismissed as defective by letter dated April 16, 2011, stating that “[o]n March 31, 2011, the Wireless
Bureau released Public Notice DA 11-583, which extends the freeze on new 800 MHz applications in the wave 4
region. The application is in conflict with the freeze, and hereby dismissed”); FCC File No. 0004809109, filed by
Automobile Club of Southern California (Riverside, Orange, San Bernadino, Ventura, and Los Angeles Counties)
(July 20, 2011) (dismissed as defective because the applicant did not amend its application as directed in the return
letter, which stated “[t]his application is returned because it is proposing new 800 MHz operations within 70 miles
of NPSPAC region 5,” and that because “[t]here is a freeze on the filing of 800 MHz applications in NPSPAC
region 5, by Public Notice DA 10-1888, the applicant must request a waiver of the freeze”); and FCC File
No. 0005041986, filed by Knox LaRue, Jr. (Kern County) (Jan. 23, 2012) (dismissed as defective by letter dated
January 27, 2012, explaining that the application is “[d]ismissed pursuant to Section 1.934(d) as the proposed
operation is within a freeze area (citing Public Notice DA 11-2087)).
52 FCC File No. 0004126322, filed by Exxon Communications Company, Att. “Request for Waiver” (Feb. 16, 2010)
(Exxon Waiver Request).
53 Exxon Waiver Request at 5, n.4. The license for Station KNEC210, authorized to operate on frequency pair
811/856.8625 MHz, was cancelled on January 14, 2009, FCC File No. 0003700457, filed by Federal Express
Corporation (Jan. 13, 2009); and the license for Station KNDH606, authorized to operate on frequency pair
813/858.8625 MHz, was cancelled on November 18, 2009, FCC File No. 0004035076, filed by Federal Express
Corporation (Nov. 17, 2009). Exxon’s application sought authority to add both frequency pairs to its license for
Station WPXY896.
54 Id. at 5.
8

Federal Communications Commission

DA 12-254

Your waiver request of the Wave 4 filing freeze is contradictory to the
purpose of the freeze which is to preserve spectrum for reconfiguration
along the U.S.-Mexico border. Specifically, the frequencies which are
requested and which became available as a result of the license
cancellations by Federal Express Corporation may be needed for the
reconfiguration process of other licensees. The spectrum congestion in
the Los Angeles area makes such reconfigurations even more difficult.55
While Exxon’s application proposed to operate in a location different from those authorized under
FedEx’s cancelled licenses, the spectrum associated with the cancelled licenses was returned to the
Commission to be included in the inventory made available for Wave 4 reconfiguration.
19.
Accordingly, we conclude that Third District has failed to demonstrate that the
underlying purpose of the Commission’s freeze on accepting new applications in the 800 MHz band
pending reconfiguration would be frustrated by application of the freeze in this case. In addition, Third
District has not described any unique or unusual factual circumstances that would warrant waiver of the
freeze. We therefore deny its request for waiver.
20.
Even if Third District provided a basis on which to grant waiver of the freeze on
accepting new 800 MHz applications in Wave 4 NPSPAC Region 5, we deny its request for waiver of the
Commission’s minimum separation requirements for 800 MHz stations. We first note that Third District
proposes to operate on frequency pair 812/857.4000 MHz at a location that falls within the Mexico border
region. Section 90.619(a) of the Commission’s rules provides that channels 231-710 authorized in the
Mexico border region are offset 12.5 kHz lower in frequency than those frequencies specified in Section
90.613 of the Commission’s rules.56 Base frequency 857.4125 MHz is assigned channel number 367
under Section 90.613.57 As a result, Third District’s proposal to operate on base frequency
857.4000 MHz in the Mexico border region is co-channel with non-border region base frequency
857.4125 MHz. Because Third District proposes to operate on frequency pair 815/860.3375 MHz at a
location outside the Mexico border region, the offset requirement of Section 90.619(a) does not apply.
Base frequency 860.3375 MHz is assigned channel number 484 under Section 90.613.58
21.
Section 90.621(b)(4) of the Commission’s rules provides that an applicant’s proposed
station in the 800 MHz band may be separated by less than 113 km (70 miles) by meeting certain power
and antenna height combinations provided in the “Short-Spacing Separation Table” included in the rule
section.59 The minimum separation permitted between an applicant’s proposed station and incumbent
stations is, however, 88 km (55 miles).60 Third District acknowledges in its waiver request that the
location of its proposed station would be closer to two stations currently licensed to Nextel of California
than the distance allowed under the rules.61 According to Third District, Nextel of California’s station
authorized under call sign WPSW921 to operate on frequency pair 812/857.4125 MHz is located 77.5 km
(48 miles) from Third District’s proposed co-channel station.62 In addition, Nextel of California’s station


55 ULS Reference No. 5027699 (File Number 0004126322) (Sept. 25, 2010).
56 47 C.F.R. § 90.619(a).
57 Id. § 90.613.
58 Id.
59 Id. § 90.621(b)(4).
60 Id.
61 Waiver Requests at 2.
62 Id.
9

Federal Communications Commission

DA 12-254

authorized under call sign WPBQ920 to operate on frequency pair 815/860.3375 MHz is located 49.8 km
(31 miles) from Third District’s proposed co-channel station.63 Sprint Nextel agrees with these distance
calculations.64
22.
Even though its proposed stations would violate the minimum distances required, Third
District argues that its request for waiver should be granted because Nextel of California’s stations should
not be afforded protection under the minimum distance rules. To support its argument, Third District first
notes that “[b]ecause FedEx preceded Nextel’s use of these channels, Nextel was authorized pursuant to
the Commission’s short-spacing rules.”65 Third District then asserts that Section 90.621(b)(6) of the
Commission’s rules provides “that when a licensee is short-spaced, the new licensee (in this case Nextel)
cannot object when the incumbent user relocates its facilities, so long as the incumbent licensee’s station
does not extend its 22 dBu contour beyond its maximum 22 dBu contour.”66
23.
We agree that Section 90.621(b)(6) of the Commission’s rules addresses the situation
where a co-channel 800 MHz station has been authorized as short-spaced, and the incumbent licensee of a
station operating within the short-spaced distance wishes to modify its license. The rule section allows
the incumbent licensee to modify its facilities as long as the modification does not extend its 22 dBu
contour beyond its maximum 22 dBu contour in the direction of the short-spaced station.67 We do not
agree, however, that Section 90.621(b)(6) has any applicability at all in this proceeding. On the other
hand, Section 90.621(b)(4) of the Commission’s rules does.
24.
Relying on Section 90.621(b)(6), Third District contends that because it “proposes to use
the frequencies exactly as FedEx did, Nextel will experience no greater interference from its operations
than it experienced from FedEx,” and that “Nextel, as the short-spacing entity, should have no expectation
of co-channel protection greater than it would have if FedEx remained the licensee.”68 Even though it
acknowledges that it is not the incumbent licensee,69 Third District’s argument asks that we afford it, as
an applicant for a new license, the same protections afforded an incumbent licensee authorized to operate
on the same frequencies in the same locations. Third District, however, is not an incumbent licensee for
purposes of Section 90.621(b)(6) or for any other purpose in this proceeding. Third District has not filed
an application to modify an existing station license. Rather, FedEx would have been allowed before
cancelling its licenses, as the incumbent licensee, to modify its stations so long as the modification did not
extend beyond its 22 dBu contour in the direction of Sprint Nextel’s stations. Third District, as a mere
applicant, has no legal right or authority afforded under Section 90.621(b)(6) of the Commission’s rules.
25.
We also reject Third District’s argument that the purpose of Section 90.621(b)(6) “is to
not enrich the new licensee by giving it more rights than it had by short-spacing an incumbent licensee.”70


63 Id.
64 Opposition Exhibit A at 2-3. Sprint Nextel provides distance calculations for several stations that it considers
would be short-spaced by the grant of Third District’s application for frequency pair 812/857.4000 MHz. Id. at 2.
With respect to Station WPSW921, Sprint Nextel calculates the distance between stations at 77.6 km. Id. Sprint
Nextel’s distance calculation for base station WNBQ920 is the same as that provided by Third District – 49.8 km.
Id. at 3.
65 Waiver Requests at 2.
66 Id.
67 47 C.F.R. § 90.621(b)(6).
68 Waiver Requests at 3.
69 Id.
70 Id. at 2-3.
10

Federal Communications Commission

DA 12-254

Third District broadly contends that “application of the short-spacing rules, which are designed to protect
existing licensees, is unnecessary in this case” and that “[t]o the contrary, if the short-spacing rules are
applied, Nextel would receive a windfall – it would receive greater protection than it bargained for when
it short-spaced FedEx.”71 Third District’s claimed purpose of Section 90.621(b)(6) is inaccurate and
unfounded. The purpose of the rules provided in Section 90.621(b) is to protect the interference rights
between an incumbent licensee and a new applicant in the 800 MHz band.72 Section 90.621(b)(6), in
particular, protects the interference rights of both an incumbent licensee and a licensee authorized to
operate within the minimum separation distance allowed with regard to the incumbent, while allowing the
incumbent to modify its station operations.
26.
If, however, the co-channel interference environment changes because an incumbent
licensee cancels its license, Section 90.621(b) does not penalize the licensees remaining in the area
affected by the cancellation. Rather, any so-called benefit received by those incumbent licensees is
incidental and conveys no right to third parties, like Third District, to restore the interference status quo
that existed before the license was cancelled. Thus, dismissal of Third District’s applications would not
result in some sort of unjust enrichment or unauthorized windfall to Sprint Nextel or any other incumbent
licensee operating in the area. Moreover, because we are denying Third District’s waiver requests and
dismissing its applications, we do not address, at this time, Sprint Nextel’s claim that, because of rules
that apply after completing reconfiguration in a NPSPAC region, granting Third District’s applications
would result in a windfall for Third District.73
27.
As already discussed, once FedEx cancelled its licenses, the spectrum associated with
those licenses was returned to the Commission. Any party seeking authority to operate where the
cancelled licenses had been authorized to operate would be required to comply with the minimum
separation requirements set forth in Section 90.621(b). In this case, Third District has made no attempt to
comply with the requirements of Section 90.621(b)(4). Even though it acknowledges that its proposed
stations would violate the minimum separation requirements, it has not submitted along with its request
for waiver any statement as to whether either application is submitted for consideration under the Short-
Spacing Separation Table, any type of interference analysis relevant to showing whether any co-channel
stations would receive the same or greater interference protection provided in the Short-Spacing
Separation Table, or any relevant analysis of interference potential from mobile transmitters to any


71 Id. at 3.
72 See In the Matter of Improving Public Safety Communications in the 800 MHz Band; new 800 MHz Band Plan
for Puerto Rico and the U.S. Virgin Islands, Order, 25 FCC Rcd 15901, 15902, ¶ 5 (PSHSB 2010) (stating the “[t]he
underlying purpose of Section 90.621(b) of the Commission’s rules is to prevent inter-station interference”).
73 See Opposition at 5. In particular, Sprint Nextel states that “after completion of band reconfiguration in the
region, Sprint Nextel must surrender is licenses for channels below 817/862 MHz, including the licenses that would
be co-channel and entitled to short-spacing protection from Third District’s … applications if these licenses are not
utilized in the reconfiguration of other licensees.” Id. Citing Section 90.617 of the Commission’s rules, 47 C.F.R.
§ 90.617, Sprint Nextel further claims that once it “surrenders the licenses for the interleaved channels below
815/860 MHz, only Public Safety Category applicants are eligible to apply for Sprint Nextel vacated channels for a
period of three years after the release of a public notice announcing the completion of band reconfiguration in the
region, and only Public Safety and Critical Infrastructure Industry Categories are eligible for three to five years after
the release of a public notice announcing the completion of band reconfiguration in the region.” Id. Sprint Nextel
concludes that “grant of the waiver and Third District’s application would likely reduce the amount of 800 MHz
spectrum available to Public Safety applicants post-reconfiguration” and “[t]hus Third District, rather than Sprint
Nextel, would be the entity receiving a windfall and unjust enrichment.” Id.
11

Federal Communications Commission

DA 12-254

existing co-channel base station receivers.74 In addition, Third District did not serve a copy of its
applications on Nextel of California upon submission of its applications as required by the rule.75
28.
Accordingly, we further conclude that Third District has failed to demonstrate that the
underlying purpose of Section 90.621(b) of the Commission’s rules would be frustrated by application of
the rule in this case. In addition, Third District has not described any unique or unusual factual
circumstances that would warrant waiver of the minimum separation requirements for 800 MHz band
stations. We therefore deny its request for waiver.
29.
Finally, we find that, contrary to Third District’s assertions, Sprint Nextel has standing to
file its opposition. Citing Section 90.621(b)(6) of the Commission’s rules once again, Third District
argues that “the licensing of identical facilities to a new licensee entity is tantamount to a modification of
the existing station without increasing the 22dBu contour in the direction of the incumbent’s facilities,”76
and that “[i]nsofar as Nextel would have no valid objection to such a modification, it likewise lacks
standing to oppose the captioned applications.”77
30.
We disagree. The grant of Third District’s applications would have an adverse affect on
Sprint Nextel because grant of the applications, as filed, would result in unacceptable levels of
interference to at least two stations licensed in the area to incumbent licensee Nextel of California.78
Third District is a new applicant required to protect Sprint Nextel’s operations according to existing
interference protection criteria. Sprint Nextel therefore meets the requirements of a party in interest in
this proceeding. In addition, because Third District did not serve Sprint Nextel with copies of its
applications as required by Section 90.621(b)(4) of the Commission’s rules, the 30-day filing period for
oppositions does not apply.79 We therefore accept Sprint Nextel’s Opposition as filed in a timely manner.

IV.

ORDERING CLAUSES

Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 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 requests for waiver filed by Third District
Enterprises, LLC in association with File Nos. 0004819360 and 0004819368 on July 28, 2011, ARE
DENIED.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), and Sections 0.131, 0.331, and 1.934, of the


74 47 C.F.R. § 90.621(b)(4).
75 Id.
76 Reply at 2.
77 Id.
78 See In the Matter of Applications of Commco Technology, L.L.C., Memorandum Opinion and Order, 16 FCC
Rcd 19485, 19487, ¶ 6 (PSPWD WTB 2001) (finding the petitioner had standing because grant of a renewal
application would cause an overlap in service areas causing the petitioner to have to limit its operations to protect
the renewal station from interference).
79 See 47 C.F.R. § 90.621(b)(4) (requiring applicants seeking a waiver of the minimum separation requirements for
800 MHz band stations to submit with their application a certificate of service indicating that, concurrent with the
submission of the application to the Commission, all co-channel licensees within the applicable area were served
with a copy of the application and all attachments, and further providing that “[l]icensees thus served” may file an
opposition to the application with 30 days from the date the application was filed with the Commission). Third
District’s applications do not include a certificate indicating that it served Sprint Nextel with the applications along
with the submission of its applications, and Third District does not dispute the omission.
12

Federal Communications Commission

DA 12-254

Commission’s rules, 47 C.F.R. §§ 0.131, 0.331, 1.934, the applications for new licenses, File
Nos. 0004819360 and 0004819368, filed by Third District Enterprises, LLC on July 28, 2011, ARE
DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Cyndi Thomas
Assistant Chief, Mobility Division
Wireless Telecommunications Bureau
13

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.