*Pages 1--7 from Microsoft Word - 11120.doc* Federal Communications Commission DA 01- 1991 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of INDUSTRIAL TELECOMMUNICATIONS ASSOCIATION, INC. Petition to Reconsider Denial of Petition to Set Aside Grant of Application of Public Service Electric and Gas Company for New Industrial/ Business Private Land Mobile Radio Station at Borough Park Ridge, New Jersey and PUBLIC SERVICE ELECTRIC AND GAS COMPANY Licensee of Conventional Power Radio Service Station WPQK581, Borough Park Ridge, New Jersey, and Petition to Rescind Grant of Authority of Horizon Communications for New Industrial/ Business Private Land Mobile Radio Station at Fort Lee, New Jersey and HORIZON COMMUNICATIONS Licensee of Trunked Industrial/ Business Pool Radio Station WPOY784, Fort Lee, New Jersey ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: August 22, 2001 Released: August 24, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On October 27, 2000, the Industrial Telecommunications Association, Inc. (“ ITA”), a FCC-certified frequency coordinator for Private Land Mobile Radio (PLMR) Services, submitted a petition seeking reconsideration 1 of the September 28, 2000 action by the Public Safety and Private Wireless 1 Letter dated Oct. 27, 2000 from Jeremy Denton, ITA Regulatory Affairs Assistant, to D’wana R. Terry, Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (ITA Petition for Reconsideration). 1 Federal Communications Commission DA 01- 1991 2 Division (Division), Licensing and Technical Analysis Branch (Branch) 2 denying ITA’s September 1, 2000 petition seeking revocation of the authorization granted to Public Service Electric and Gas Company (“ PSE& G”) for Station WPQK581, Borough Park Ridge, New Jersey. 3 Also before us is PSE& G’s September 13, 2000 petition seeking revocation of the authorization granted to Horizon Communications (Horizon) for Station WPOY784, Fort Lee, New Jersey. 4 For the reasons set forth below, we dismiss ITA’s reconsideration petition and deny PSE& G’s revocation petition. However, on our own motion, we initiate a proceeding to modify Horizon’s license for Station WPOY784 to remove the frequency 153.6125 MHz. II. BACKGROUND 2. Frequency coordination in the PLMR Services is the process by which a private entity certified by the Commission recommends the most appropriate frequencies for applicants in their designated radio service. 5 In 1986, the Commission adopted frequency coordination rules and procedures in an effort to maximize service to the public by assuring that the assignment and management of the PLMR spectrum is performed in an efficient and effective manner. 6 The Commission has stated that accurate information is fundamental to its ability to review effectively the frequency recommendations made by a FCC- certified frequency coordinators prior to licensing. 7 A fundamental aspect of frequency coordination, in any radio service, is an accurate determination by a FCC- certified frequency coordinator of whether the proposed operations potentially will cause harmful interference to existing co- channel or adjacent channel licensees. 8 3. In 1997, the Commission allowed centralized trunking in the PLMR bands between 150 MHz and 512 MHz. 9 The Commission emphasized that trunking would be permitted only in those areas where exclusivity is recognized by the Commission or where an applicant/ licensee has obtained the consent of all licensees whose service areas overlap a circle with a radius of seventy miles from the proposed trunked 2 Letter from Mary Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, to Jeremy Denton, ITA (Sept. 28, 2000) (Branch Decision). 3 Letter dated Sept. 1, 2000 and received Sept. 5, 2000 from Jeremy Denton, ITA Regulatory Affairs Assistant, to Mary Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (ITA Letter). 4 Letter dated Sept. 11, 2000 and received Sept. 13, 2000 from Jeffrey H. Katz, Enterprise IT Consultant, PSE& G, to Mary Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (PSE& G Petition). 5 Frequency Coordination in the Private Land Mobile Radio Services, Report and Order, PR Docket No. 83- 737, 103 FCC 2d 1093 (1986). 6 Id. at 1094- 95 ¶ 2. 7 Id. at 1148 ¶ 111, 1150 ¶ 116. 8 See generally American Mobile Telecommunications Association, Inc. and American Trucking Associations, Inc., Report and Order, DA 01- 1411, ¶¶ 13- 15 (WTB PSPWD rel. June 11, 2001). 9 Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, Second Report and Order, PR Docket No. 92- 235, 12 FCC Rcd 14307, 14337- 38 ¶¶ 56- 59 (1997). 2 Federal Communications Commission DA 01- 1991 3 system’s base station. 10 In 1999, the Commission provided applicants with an alternate means of obtaining an authorization for a trunked system by obtaining concurrence whenever the 19 dBu (UHF) or 22 dBu (VHF) interference contour from a proposed trunked station intersects the 37 dBu service contour (UHF) or 39 dBu service contour (VHF) of any existing co- channel or adjacent channel station. 11 In 2000, the Commission revised the definition of trunked systems authorized in the 150- 512 MHz bands. 12 4. PSE& G operates a PLMR system on frequency 153.6200 throughout New Jersey under various call signs, 13 two of which are relevant to the instant matter. Power Radio Service Pool Station WPDH711, Fort Lee, New Jersey, was initially licensed in 1993. More recently, PSE& G filed an application for authorization to operate an additional Power Radio Service Pool conventional station in the Borough Park Ridge, New Jersey area. 14 The United Telecom Council, a FCC- certified PLMR frequency coordinator, submitted PSE& G’s application, with a frequency recommendation, to the Branch. 15 On August 17, 2000, the Branch granted PSE& G’s application by issuing it an authorization to operate Station WPQK581. 16 5. Before PSE& G applied for authorization to operate Station WPQK581, Horizon filed an application for authorization to operate an Industrial/ Business Pool (I/ B) trunked station in the Fort Lee, New Jersey area, 17 approximately 300 yards from the site of the previously- authorized Station WPDH711. 18 The Personal Communications Industry Association (PCIA), a FCC- certified PLMR frequency coordinator, submitted Horizon’s application, with a frequency recommendation, to the Branch. 19 On September 7, 1999, the Branch granted Horizon’s application to operate Station WPOY784 on three frequency pairs, including frequency 153.6125. 20 10 Id. 11 Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, PR Docket No. 92- 235, Third Memorandum Opinion and Order, 14 FCC Rcd 10922, 10926- 27 ¶¶ 6- 9 (1999). 12 47 C. F. R. § 90.187. The Commission’s Part 90 biennial review proceeding amended Section 90. 187, but did not change the substance of the rule provision at issue here. See 1998 Biennial Regulatory Review, 47 C. F. R Part 90, Private Land Mobile Radio Services, Report and Order and Further Notice of Proposed Rule Making, WT Docket No. 98- 182, 15 FCC Rcd 16673 (2000). 13 See Licenses for Stations KG3865, KAQ866, KBE613, KEB814, KEB815, KEB816, KED256, KNIB396, KNID721, KNIJ562, KNIL599, KNIL600, KNIL601, WNUZ620, WNXY400, WPCE454, WPCE458, WPDH711, WPEI332, WPFP355 and WPQK581. 14 File No. 0005D141868. 15 See FAC # NJOUU00467. 16 See License for Station WPQK581. 17 File No. A0000412741 18 See Licenses for Stations WPOY784 and WPDH711. 19 See FAC # 991120016. 20 See License for Station WPOY784. 3 Federal Communications Commission DA 01- 1991 4 6. By letter received September 5, 2000 in the Commission’s Gettysburg, Pennsylvania office, ITA requested that the Commission set aside PSE& G’s license for Station WPQK581. 21 ITA argued that the authorization was granted in error because PSE& G’s station does not afford Horizon the adjacent-channel interference protection required by Section 90.187 of the Commission’s Rules; 22 thus, according to ITA, Station WPQK581’s operations on frequency 153.6200 MHz pose a risk of interference to Horizon’s operations at Station WPOY784 on frequency 153.6125. 23 To support its argument, ITA submitted its interference analysis of the PSE& G license as granted showing that PSE& G’s interference contour (19 dBu) overlapped Horizon’s service area contour (37 dBu). 24 Therefore, ITA urged, the Commission should set aside the license grant. 7. On September 11, 2000, PSE& G responded that it was not required to provide the protection required by Section 90.187, because that rule applies only to trunked stations and Station WPQK581 operates in the conventional mode. 25 In addition, PSE& G requested that the Commission set aside Horizon’s license for Station WPOY784. 26 PSE& G argued that Horizon’s trunked Station WPOY784 does not afford PSE& G’s Station WPDH711 the adjacent channel interference protection required by Section 90.187. As a result, PSE& G contended that Station WPOY581’s operations on frequency 153.6125 pose a risk of interference to PSE& G’s operations at Station WPDH711 on frequency 153.6200. 27 Therefore, PSE& G urged, the Commission should set aside the license grant. 8. By letter dated September 28, 2000, the Branch denied ITA’s request to set aside the license for Station WPQK581, on the grounds that Section 90.187 imposes requirements on trunked systems, but not conventional stations. 28 The Branch also stated that it would contact Horizon separately regarding PSE& G’s complaint about Station WPOY784. 29 On October 27, 2000, ITA submitted to the Chief of the Division a petition for reconsideration of the Branch’s September 28, 2000 determination. 30 On November 7, 2000, PSE& G responded to ITA’s petition for reconsideration. 31 21 See ITA Letter at 1. 22 47 C. F. R. § 90.187. 23 ITA Letter at 1. 24 Id. at 3. 25 PSE& G Petition at 2. 26 Id. at 1- 2. 27 Id. 28 See Branch Decision at 1. 29 Id. 30 See ITA Petition for Reconsideration, supra. 31 Letter dated Nov. 1, 2000 and received Nov. 7, 2000 from Jeffrey H. Katz, Enterprise IT Consultant, PSE& G, to D’wana R. Terry, Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (PSE& G Opposition). 4 Federal Communications Commission DA 01- 1991 5 9. On March 19, 2001, the Branch requested that PCIA respond to PSE& G’s contentions regarding the Horizon station and propose a solution, if the Horizon application had been incorrectly coordinated. 32 By letter dated April 12, 2001, PCIA stated that there might be PSE& G licenses that were not accounted for and proposed modifying the Horizon license for Station WPOY784 by removing frequency 153.6125 MHz. 33 III. DISCUSSION 10. We believe that PSE& G’s petition is most properly characterized as an informal request for Commission action under Section 1. 41 of the Commission’s Rules. 34 PSE& G argues that license set- aside is warranted because Horizon’s license was granted in violation of Section 90.187 of the Commission’s Rules. Specifically, PSE& G argues that the Horizon station does not afford the required adjacent channel interference protection. PSE& G suggests that the Horizon license poses a risk of harmful interference to PSE& G’s operations in the Fort Lee, New Jersey area. Under these circumstances, PSE& G argues, the grant of Horizon’s license should be set aside pursuant to Section 90.187. PCIA admits “that there may be [PSE& G] license[] s that were not accounted for” and recommends modifying Horizon’s license by deleting frequency 153.6125 MHz to resolve the problem. 11. Based upon our analysis, we conclude that the Horizon application should not have been coordinated because the proposed operations do not provide the requisite interference protection to the operations of PSE& G. We find that initiation of revocation proceedings against Horizon’s station is unnecessary in the instant matter because PCIA has proposed changes to the Horizon license designed to eliminate interference to PSE& G’s operations. We believe that Section 316( a) of the Communications Act of 1934, as amended, provides the appropriate vehicle for resolving this matter. 35 Section 316( a)( 1) permits the Commission to modify a station license if the action will promote the public interest, convenience, and necessity. 36 In this connection, we note that the proposed modification would serve the public interest by preserving the existing coverage areas of affected parties and preventing harmful interference, while not unduly disrupting Horizon’s operations. 12. As discussed above, the coordination of Horizon’s application was defective. Thus, we believe that a modification of the Horizon license to remove the operating frequency 153.6125 MHz is appropriate to prevent harmful interference to PSE& G. In accordance with Section 1.87( a) of the Commission's Rules, 37 we will not issue a modification order until Horizon has received notice of our proposed action and has had an opportunity to interpose a protest. To protest the modification, Horizon must, within thirty days of the release date of this Memorandum Opinion and Order, submit a written statement with sufficient 32 Letter dated Mar. 19, 2001 from Mary Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, to PCIA. 33 Letter dated Apr. 12, 2001 and received Apr. 23, 2001 from Don Andrew, Coordination Services Specialist, PCIA, to Mike Regiec, FCC. 34 47 C. F. R. § 1.41. 35 47 U. S. C. § 316( a)( 1). 36 Id. 37 47 C. F. R. § 1.87( a). 5 Federal Communications Commission DA 01- 1991 6 evidence to show that the modification would not be in the public interest. The protest must be filed with the Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, S. W., Room TW-A325, Washington, D. C. 20554. If no protest is filed, Horizon will have waived its right to protest the modification and will be deemed to have consented to the modification. 13. As noted above, ITA requested reconsideration of the Branch’s denial of its request that the Commission set aside the grant of the license for Station WPQK581 on the grounds that Station WPQK581 poses an interference threat to Station WPOY784’s operations on frequency 153.6125 MHz. 38 We also note, as pointed out by PSE& G, 39 that the petition was filed in the wrong location. The Commission's Rules require that petitions for reconsideration be filed with the Office of the Secretary in Washington, D. C., 40 and warn persons filing documents with the Commission that filings submitted to the wrong location will not be processed. 41 Thus, the petition is subject to dismissal as improperly filed. 42 IV. CONCLUSION 14. For the reasons stated above, we conclude that the coordination of Horizon’s application was defective. As a result, we believe that the license grant to Horizon was defective. Accordingly, we propose to modify Horizon’s license for Station WPOY784 to remove frequency 153.6125 MHz in order to protect adjacent channel licensees from harmful interference. V. ORDERING CLAUSES 15. ACCORDINGLY, IT IS ORDERED, pursuant to Section 4( i) of the Communications Act of 1934, as amended, 47 U. S. C. § 154( i), and Section 1.41 of the Commission’s Rules, 47 C. F. R. § 1.41, the Petition to set aside grant of the license for Station WPOY784 submitted by Public Service Electric and Gas Company on September 11, 2000 IS DENIED. 16. IT IS PROPOSED, pursuant to Sections 4( i) and 316( a) of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 316( a), and Section 1.87 of the Commission's Rules, 47 C. F. R. § 1.87, that the license for Private Land Mobile Radio Services Station WPOY784, held by Horizon Communications, BE MODIFIED by deleting frequency 153.6125 MHz. 38 See ITA Petition, supra. In light of our proposed license modification, however, Station WPOY784 will no longer be operating on the frequency in question, and thus cannot incur harmful interference on that frequency. Therefore, we conclude that ITA’s petition for reconsideration is moot. 39 See PSE& G Opposition at 1. 40 47 C. F. R. § 1.106( i). 41 47 C. F. R. § 0.401; see also 47 C. F. R. § 1.7 (" documents are considered to be filed with the Commission upon their receipt at the location designated by the Commission"). 42 See In the Matter of Memorandum of Agreement Between the Federal Communications Commission and Elkins Institute, Inc., Order on Reconsideration, 14 FCC Rcd 5080, 5081 ¶ 3 (WTB 1999); Columbia Millimeter Communications, LP, Order on Reconsideration, 14 FCC Rcd 2782, 2784- 85 ¶ 9 (WTB PSPWD 1999), aff'd, Order on Reconsideration, 15 FCC Rcd 10251 (WTB PSPWD 2000). See also Petition for Reconsideration Filing Requirements, Public Notice, 15 FCC Rcd 19473 (WTB 2000). 6 Federal Communications Commission DA 01- 1991 7 17. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be sent by certified mail, return receipt requested, to Horizon Communications, P. O. Box 387, Cliffside Park, N. J. 07010. 18. IT IS FURTHER ORDERED, pursuant to Sections 4( i) and 405 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 405, and Section 1.106 of the Commission’s Rules, 47 C. F. R. § 1.106, the petition for reconsideration submitted by the Industrial Telecommunications Association, Inc., on October 27, 2000 IS DISMISSED. 19. 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 D’wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau 7