*Pages 1--5 from Microsoft Word - 6952.doc* Federal Communications Commission DA 01- 240 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of REGIONET WIRELESS LICENSE, LLC for the Authority to Operate Automated Maritime Telecommunications Service in Various Locations in the United States ) ) ) ) ) ) ) File Nos. 853269- 853286 ORDER Adopted: January 24, 2001 Released: January 31, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On July 6, 2000, Warren C. Havens (Havens) filed a petition to deny Automated Maritime Telecommunications System (AMTS) station applications filed by Regionet Wireless License, LLC (Regionet) for the Savannah River, 1 Chesapeake Bay, 2 south coastal region of California, 3 Sacramento River Delta area, 4 and Apalachicola and Chattahoochee Rivers. 5 For the reasons that follow, Havens’s petition is granted in part, 6 and Regionet’s applications to serve the Savannah River, Chesapeake Bay, south coastal region of California, Sacramento River Delta area and the Apalachicola and Chattahoochee Rivers are dismissed. 1 File Nos. 853269 (Greenwood, South Carolina) and 853270 (Augusta, Georgia). 2 File No. 853277 (Crofton, Maryland). 3 File Nos. 853278 (Verdugo Hills, California) and 853279 (San Diego, California). File No. 853278 was withdrawn on August 3, 2000. See Letter from Martin W. Bercovici, Keller and Heckman, LLP, to Kimberly Kleppinger, Wireless Telecommunications Bureau, Federal Communications Commission (dated Aug. 2, 2000) (Withdrawal Letter). 4 File Nos. 853280 (Yuba City, California), 853281 (Shingle Springs, California), 853282 (San Francisco, California), 853283 (Whiskeytown, California), 853284 (Ukiah, California), 853285 (Sacramento, California), and 853286 (San Bruno, California). 5 File Nos. 853271 (Sneads, Florida), 853272 (Fort Gaines, Georgia), 853273 (Warm Springs, Georgia), 853274 (Tiger, Georgia), 853275 (Stone Mountain, Georgia), and 853276 (Roswell, Georgia). 6 In this same petition to deny, Havens also listed the applications of Mobex Communications, Inc., Regionet’s parent corporation, for AMTS stations to serve the Upper Chattahoochee River (File Nos. 853246- 47) and Upper Rio Grande River (File Nos. 853248- 51), and by Regionet for the Cooper, Congaree, Broad, and Saluda Rivers (File Nos. 853259- 64) and Cape Fear and Haws Rivers (File Nos. 853265- 68). These applications will be addressed in a separate decision. 1 Federal Communications Commission DA 01- 240 2 II. BACKGROUND 2. AMTS stations provide automated, integrated, interconnected ship- to- shore communications similar to a cellular phone system for tugs, barges, and other maritime vessels. 7 There are two frequency groups of twenty channel pairs each available for assignment to AMTS stations. 8 Under Section 80.475( a) of the Commission’s Rules, AMTS applicants who propose to serve a navigable inland waterway that is less than 150 miles in length must serve that waterway in its entirety. 9 On the other hand, AMTS applicants who propose to serve a navigable inland waterway that is more than 150 miles in length, must provide continuity of service for at least 60 percent of the waterway. 10 Applicants proposing to serve a portion of the Atlantic, Pacific, or Gulf of Mexico coastline must provide continuity of service to a substantial navigational area. 11 3. In establishing the rules permitting AMTS stations, the Commission considered the potential for interference to television reception, particularly Channels 10 and 13 because of the proximity of AMTS frequencies to these television channels, and conditioned the operation of AMTS coast stations on the requirement that no harmful interference be caused to television reception. 12 Under the Commission's Rules, an applicant proposing to locate an AMTS station within 129 kilometers (80 miles) of a Channel 10 television station and/ or 169 kilometers (105 miles) of a Channel 13 television station must submit an engineering study demonstrating the means used to avoid interference within that particular television station's Grade B contour. 13 The study must include a description of the interference contour and the method used to determine that contour, along with a statement that provides the number of residences within the contour. 14 Where there are at least one hundred residences within both a proposed AMTS station's predicted interference contour and a television station's Grade B contour, the AMTS applicant must (1) show that the proposed site is the only suitable location, (2) develop a plan to control any interference its operations cause within the Grade B contour, and (3) agree to make any necessary adjustments to affected television receivers to eliminate such interference. 15 7 See Amendment of Parts 2 and 80 of the Commission's Rules Applicable to Automated Maritime Telecommunications Systems (AMTS), First Report and Order, GEN Docket No. 88- 732, 6 FCC Rcd 437, 437 ¶ 3 (1991) (AMTS First Report and Order). 8 47 C. F. R. § 80.385( a)( 2). 9 47 C. F. R. § 80.475( a). 10 Id. 11 Id. 12 47 C. F. R. § 80.215( h); Amendment of Parts 2, 81 and 83 of the Commission's Rules to Allocate Spectrum for an Automated Inland Waterways Communications System (IWCS) along the Mississippi River and Connecting Waterways, Report and Order, GEN Docket No. 80- 1, 84 FCC 2d 875, 897- 98 ¶ 81, on recon., Memorandum Opinion and Order, GEN Docket No. 80- 1, 88 FCC 2d 679 (1981). 13 47 C. F. R. § 80.475( a)( 1); see AMTS First Report and Order, 6 FCC Rcd at 437 ¶ 5. 14 47 C. F. R. § 80.215( h)( 2). 15 47 C. F. R. § 80.215( h)( 3); see Fred Daniel d/ b/ a Orion Telecom, Memorandum Opinion and Order, 14 FCC Rcd 3909, 3910 ¶ 4 (WTB PSPWD 1999). 2 Federal Communications Commission DA 01- 240 3 4. On May 17, 2000, Regionet filed applications for AMTS stations that would serve the Apalachicola and Chattahoochee Rivers, Savannah River, Chesapeake Bay, and south coastal region of California. On May 18, 2000, Regionet filed applications for AMTS stations that would serve the Sacramento River Delta area. On June 6, 2000, Regionet’s applications appeared on public notice. 16 On July 6, 2000, Havens filed a petition to deny these applications. On July 17, 2000, Mobex and Regionet filed an opposition to Havens’s petition to deny. On July 26, 2000, Havens filed a reply. 5. On July 6, 2000, KCOP Television, Inc. (KCOP), licensee of a Channel 13 television station in Los Angeles, California, petitioned to deny one of the two AMTS stations that Regionet proposed for the south coastal region of California. Specifically, KCOP argued that over one million residences in its Grade B contour, rather than Regionet’s claim of less than one hundred residences, would also be in the interference contour of the proposed AMTS station at Verdugo Hills, California. 17 On August 2, 2000, Regionet requested the withdrawal of its application for the AMTS station at Verdugo Hills. 18 On January 2, 2001, Regionet’s request was granted. 19 III. DISCUSSION 6. Havens argues that the Regionet applications provide no basis for the assertion that in the case of each proposed AMTS station, fewer than one hundred residences are within the overlap between the station’s predicted interference contour and a Channel 13 television station’s Grade B. 20 Regionet contends that in each case, the interference contour overlaps the Grade B contour in low population density areas and for that reason, it believes the overlap encompasses fewer than one hundred residences. 21 7. We note that Regionet withdrew its application for an AMTS station in Verdugo Hills after KCOP presented evidence contradicting Regionet’s claim that fewer than one hundred residences were contained in the overlapping contours. In addition, even a cursory review of the applications, some of 16 Public Notice, Report No. 2096, rel. June 6, 2000. 17 Engineering Report on Behalf of KCOP Television, Inc. in Support of its Petition to Deny Regionet Wireless License LLC AMTS Application Verdugo Hills, California, at 2 (dated July 5, 2000). 18 See Withdrawal Letter at 1. 19 Letter from D’wana R. Terry, Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, to Martin W. Bercovici, Keller and Heckman, LLP (dated Jan. 2, 2001). 20 Petition to Deny Applications at 9. Havens, in his July 6, 2000 petition to deny, also argues that Regionet did not clearly describe the length and navigability of the subject waterways, nor the service coverage it proposed to provide. Id. at 6. He argues that Regionet has not demonstrated that an engineering study was properly conducted for any of the applications. Id. at 7- 9. He argues that Regionet should not be allowed to combine several rivers into one system as it proposes with the Apalachicola and Chattahoochee Rivers. Id. at 4. Because we are not persuaded that there are fewer than one hundred residences in the overlapping contours and Regionet has not provided the information required by 47 C. F. R. § 80.215( h)( 3), we find the Regionet applications defective and therefore, we need not address Havens’s other arguments. 21 Id. at 4. See 47 C. F. R. § 80.215( h)( 3) (the station will be authorized if the applicant’s plan has limited the interference contour( s) to fewer than 100 residences). It did not rely on census data when reaching this conclusion. Affidavit of Randall D. Young, Keller and Heckman, LLP, at 4. 3 Federal Communications Commission DA 01- 240 4 which propose stations in such places as San Diego, San Francisco, and Sacramento, belies Regionet’s representation that it reviewed the proposed locations and determined the areas of overlap to have low population densities. Finally, closer examination of the subject applications reveals that the overlaps generally are significant and often encompass entire towns and even entire counties. 22 Consequently, we find unconvincing Regionet’s assertion that fewer than one hundred residences are within the overlapping contours. As indicated previously, where there are at least one hundred residences within both a proposed AMTS station's predicted interference contour and a television station's Grade B contour, the AMTS applicant must show that the proposed site is the only suitable location, develop a plan to control any interference its operations cause within the Grade B contour, and agree to make any necessary adjustments to affected television receivers to eliminate such interference. 23 Because Regionet did not make such a showing, we will dismiss as defective its applications for AMTS stations that would serve the Savannah River, 24 Chesapeake Bay, south coastal region of California, Sacramento River Delta area, and Apalachicola and Chattahoochee Rivers. 22 With respect to the proposed Greenwood, South Carolina AMTS station, which would serve the Savannah River, the predicted interference contour significantly overlaps the Grade B contour of Channel 13 Television Station WLOS, Asheville, North Carolina, in Greenville County, Pickens County, and Anderson County, South Carolina. The entire city of Baltimore, Maryland, would be encompassed in the overlap of the Grade B contour of Channel 13 Television Station WJZTV, Baltimore, with the predicted interference contour of the AMTS station in Crofton, Maryland. As indicated, Regionet has proposed six AMTS stations to serve the Apalachicola and Chattahoochee Rivers. With respect to this system, all of Calhoun County, Florida, and significant portions of other counties would be encompassed in the overlap of the Grade B contour of the Channel 13 Television Station WMBB, Panama City, Florida, with the predicted interference contour of the AMTS station in Sneads, Florida. We find that significant portions of Baker, Calhoun, and Dougherty Counties, Georgia, would be encompassed in the overlap of the Grade B contour of Channel 10 Television Station WALBTV, Albany, Georgia, with the predicted interference contour of the AMTS station in Fort Gaines, Georgia. Monroe County, Crawford County, and Macon County, Georgia, are completely encompassed in the overlap of the Grade B contour of Channel 13 Television Station WMAZ- TV, Macon, Georgia, with the predicted interference contour of the AMTS station in Warm Springs, Georgia. The Grade B contour of Channel 10 Television Station WXIA-DT, Atlanta, Georgia, is almost completely encompassed by the predicted interference contours of the AMTS stations in Stone Mountain and Roswell, Georgia. We also find that Greenville County, Pickens County, and Jackson County, South Carolina, are significantly encompassed in the overlap of the Grade B contour of Channel 13 Television Station WLOS, Ashville, South Carolina, with the predicted interference contour of the AMTS station in Tiger, Georgia. The city of San Diego, California, is encompassed in the overlap of the predicted interference contour of the AMTS station in San Diego with the Grade B contour of Channel 10 Television Station KGTV, San Diego. With respect to the proposed AMTS stations that would serve the Sacramento River Delta area, the Grade B contour of Channel 13 Television Station KOVR, Stockton, California, experiences significant overlap with the predicted interference contours of the AMTS stations at San Bruno, San Francisco, Yuba City, Shingle Springs, Ukiah, and Sacramento, California; and the Grade B contour of Channel 13 Television Stations KEET, Eureka, California, and K13MD, Hyampom, California, experience significant overlap with the predicted interference contour of the AMTS station in Whiskeytown, California. 23 47 C. F. R. § 80.215( h)( 3)( i). 24 We have already noted the Greenwood, South Carolina AMTS station’s defect. See note 22, supra. As for the Augusta, Georgia, AMTS station (the only other station in the proposed Savannah River system), it is not clear from the record whether the small overlap of its predicted interference contour with the Grade B contour of Channel 13 Television Station WMAZTV, Macon, Georgia, in Washington County, Georgia, encompasses more than 100 residences. Even if this overlap would affect fewer than 100 residences, however, the Augusta application still is defective. First, we note that this station would be part of a new system and not an expansion of an existing system (WRV374), as Regionet contends, because its contour does not reach the waterway that is (continued….) 4 Federal Communications Commission DA 01- 240 5 IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED 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 Section 1.939 of the Commission’s Rules, 47 C. F. R. § 1.939, the petition to deny File Nos. 853269- 77, and 853279- 86, filed by Warren C. Havens, on July 6, 2000 IS GRANTED IN PART as set forth above. 9. IT IS FURTHER ORDERED 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 1.934( d) and 80.475( a) of the Commission’s Rules, 47 C. F. R. §§ 1.934( d), 80.475( a), File Nos. 853269- 77, and 853279- 86, filed by Regionet Wireless License, LLC on May 17 and 18, 2000 ARE DISMISSED. 10. 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 (Continued from previous page) served by the existing system. See Fred Daniel d/ b/ a Orion Telecom, Memorandum Opinion and Order, 14 FCC Rcd 19912, 19918- 19 ¶ 12 (1999). Because AMTS service to the Savannah River must be regarded as a new system, the service coverage requirements (i. e., waterway that is less than 150 miles must be served in its entirety; waterway that is greater than 150 miles must receive at least 60 percent continuos coverage) under 47 C. F. R. § 80.475( a) must be met. We find that this coverage requirement cannot be met by the proposed AMTS station in Augusta, standing alone. In addition, the Commission’s rules do not provide for the licensing of a single- station AMTS. Id. at 19916- 17 ¶ 10. Therefore, the application for this station must also be dismissed. 5