__________Federal CommunicationsCommission DA 00-211
Before the
Federal CommunicationsCommission 
Washington, D.C. 20554
In re Application of )
E.A. JOHNSTON, JR. ) File No. D033964
Application to Modify )
Phase I 220 MHz Station WPCC473 )
Fort Pierce, Florida )
ORDER 
Adopted: February3,2000 Released: February4,2000
By the Deputy Chief, Commercial Wireless Division, Wireless TelecommunicationsBureau:
1. By this Order, we address the petition for reconsideration filed by E.A. Johnston, Jr. 
(Johnston) on November 4,1996, requesting reconsideration of the denial of a waiver of the 
Commission's rules to permit Johnston to modify his non-nationwide Phase I 220 MHz system, call sign 
WPCC473, in Fort Pierce, Florida. For the reasons discussed below, we reverse the decision, grant 
Johnston's waiver request, and order his modificatior application be processed.
2. On May 1,1996, Johnston filed an application to relocate his non-nationwide Phase I 220 
MHz system, pursuant to section 90.753(a) of the Commission's rules.1 Concurrent with the application, 
Johnston filed a request for waiver of section 90.753 and included an engineering analysis demonstrating 
that his proposed station provides at least 10 dB of protection to the 38 dBu contour of the nearest co- 
channel 220 MHz licensee, Ann Con Partners at call sign WTDA947.
3. On October 4, 1996, the former Land Mobile Branch (Branch) 2 denied Johnston's waiver 
request and dismissed Johnston's modification application for failure to comply with section 90.753(e) of 
the Commission's rules.3 Section 90.753(e) permits a non-nationwide Phase I 220 MHz licensee to 
relocate its base station more than one-half the distance over 120 kilometers toward any co-channel 
licensee's initially authorized base station if the proposed station is at least 120 kilometers from the co- 
channel licensee's initially authorized base station and the request is accompanied by a letter of consent 
from the co-channel licensee.4 Among other things, the Branch noted that Johnston's request for a waiver
1 47 C.F.R. § 90.753(a) (permits a non-nationwide Phase I 220 MHz licensee to relocate its base station one- 
half of the distance over 120 kilometers toward any co-channel licensee's authorized base station up to 8 
kilometers).
2 Since Johnston's filing, the former Land Mobile Branch of the Licensing Division of the Wireless 
Telecommunications Bureau was reorganized into the Licensing and Technical Analysis Branch of the Commercial 
Wireless Division of the Wireless TelecommunicationsBureau.
3 Letter dated October 4, 1996, from Michael J. Regiec, Deputy Chief, Land Mobile Branch, to Lloyd W. 
Coward, Esq., counsel for Johnston (DenialLetter). See 47 C.F.R. § 90.753(e).
47 C.F.R. § 90.753(e).
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did not include a letter of consent from Ann Con Partners for Station WPDA947, nor any explanation 
why consent was not obtained.5 Due to the failure to provide the consent letter or to explain why one 
was not available, the Branch concluded that a waiver of section 90.753(e) of the Commission's rules 
was not appropriate.6
4. In his petition for reconsideration, Johnston asserts that the Commission's rules do not 
require a licensee to explain its attempts to obtaining co-channel consent and its efforts to relocate to a 
site which complies with the Commission's rules.7 Johnston claims that he was "clearly unable to obtain 
either: (i) a letter of consent from the co-channel licensee or (ii) access to a site in compliance with the 
rules."8 In support of these assertions, Johnston included a declaration of the system manager who stated 
that he attempted to contact Ann Con Partners by telephone and also contacted at least ten site managers 
to find a site that would have complied with the Commission's relocation rules.9 Johnston also provided 
a declaration from the tower site manager for the authorized site for Station WPDA947 that Ann Con 
Partners had not constructed a station at that site. 10 Additionally, Johnston points out that waiver was 
necessary only because the proposed new location of his base station is .58 kilometers beyond the 
amount allowed under the rules.''
5. While Johnston is correct that the 220 MHz modification rules did not specifically require a 
licensee to explain its attempts to obtain co-channel consent or its efforts to find a site that would comply 
with the rules, a request for waiver under Part 90 of the rules required a showing that unique 
circumstances were involved and that there was no reasonable alternative solution within existing rules.12 
Therefore, we find that the Branch was within its discretion to deny Johnston's waiver request. 
Nonetheless, we are persuaded that the unique circumstances involved in this situation overcome the 
need for Johnston to have explained why another site was not available. First, we note that Commission 
records indicate that the co-channel licensee, Ann Con Partners, failed to respond to a number of inquiries 
from the Commission regarding its construction status. Eventually, the license was revoked on October 17, 
1997 for failure to construct. We think it would be inequitable to require Johnston to acquire a consent 
letter from a licensee that never responded to Commission inquires and never constructed. Second, we 
note that Johnston had provided an engineering study that demonstrated that Johnston's proposed
5 Denial Letter.
6 Id.
7 See Petition for Reconsideration filed by Johnston on November4,1996 (Petition) at 2.
8 Petition at 3.
9 See Exhibit 3 of Petition.
10 Declaration of Brace R. Mclntyre, Vice President/General Manager, Tower Technology Corporation of 
Tampa Bay, dated February 25,1997.
1 ' See Request for Expedited Consideration of Petition for Reconsideration filed by Johnston on May 28, 1998 
(Request) at 4.
12 47 C.F.R. § 90.151(a) (1996). See also WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); 
Northeast Cellular Telephone Company, L.P., et al., 897 F.2d 1164 (D.C. Cir. 1990). Section 90.151 of the 
Commission's rules has since been removed in place of a general Part 1 waiver rule. See 47 C.F.R. § 1.925(b)(3).
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relocation does not result in any interference to any other 220 MHz station. Finally, the de minimis 
nature of the distance between Johnston's proposed site and the maximum distance allowed under the 
220 MHz modification rules is such that strict application of the rule is inequitable and contrary to the 
public interest.
6. Accordingly, pursuant to our authority under sections 4(i) and 405 of the Communications 
Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 405, and section 1.106 of the Commission's rules, 47 
C.F.R. § 1.106, IT IS ORDERED that the Petition for Reconsideration filed by E.A. Johnston on 
November 4,1996, IS GRANTED and that his application for modification for Station WPCC473 be 
REINSTATED and PROCESSED.
7. This action is taken pursuant to delegated authority as set forth in section 0.331 of the 
Commission's rules, 47 C.F.R. § 0.331.
FEDERAL COMMUNICATIONS COMMISSION
William W.Kunze
Deputy Chief, Commercial Wireless Division
Wireless TclecommunicationsBureau
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