Federal Communications Commission DA 08-578 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of NATIONAL SCIENCE AND TECHNOLOGY NETWORK, INC. Informal Objection of Mobile Relay Associates ) ) ) ) ) ) File No. 0002919009 ORDER Adopted: March 13, 2008 Released: March 14, 2008 By the Deputy Chief, Mobility Division, Wireless Telecommunications Bureau: 1. Introduction. We have before us the above-captioned application filed by National Science and Technology Network, Inc. (NSTN), and an informal objection filed by Mobile Relay Associates (MRA).1 For the reasons set forth below, we deny the informal objection and will grant the application. 2. Background. NSTN’s application seeks authorization for a new 470-512 MHz band private land mobile radio base station at Corona, California.2 The application does not seek authorization for any associated mobile units because the purpose of the proposed facility is to fill in shadows in the coverage of existing NSTN stations,3 and the mobile units that will utilize the proposed base station already are licensed.4 MRA argues that the application should be dismissed because the proposed station does not meet the minimum spacing required by Section 90.307 of the Commission’s Rules5 with respect to adjacent-channel Television Station KPBS, San Diego, California; and because Section 90.155 of the Commission’s Rules6 requires activation of associated mobile units in order to satisfy the relevant construction requirement.7 1 See Informal Objection filed on May 18, 2007 by MRA (Objection). NSTN filed an opposition. Opposition and Request For Expedited Action filed by NSTN on May 23, 2007 (Opposition). MRA filed a reply. Reply to Opposition filed by MRA on May 29, 2007 (Reply). NSTN filed a responsive pleading, Response and Request for Expedited Action filed by NSTN on June 4, 2007 (Response), which MRA moved to strike on June 7, 2007. Motion to Strike filed by MRA on June 7, 2007 (Motion). NSTN responded to the motion to strike. Response to Motion to Strike filed by NSTN on June 11, 2007. We agree with MRA that NSTN’s Response to MRA’s reply is an unauthorized reply. See 47 C.F.R. § 1.45. Contrary to NSTN’s understanding, the provisions of Section 1.45 of the Commission’s Rules regarding permissible pleadings apply to proceedings initiated by informal requests for Commission action pursuant to Section 1.41 of the Commission’s Rules, 47 C.F.R. § 1.41. See, e.g., Earth Incorporated, Order, 21 FCC Rcd 9122, 9123 n.7 (WTB PSCID 2006), recon. pending. Consequently, we grant MRA’s Motion, and will not consider the matters raised in NSTN’s Response. 2 The base station seeks to operate at Corona, California on frequencies 471.4250 MHz, 472.0500 MHz, 472.0750 MHz, 472.1000 MHz, 472.1250 MHz, 472.0875 MHz, 472.8875 MHz, and 472.9750 MHz in conjunction with mobile units associated with other NSTN stations. 3 See FCC File No. 0002919009, Attachment: Purpose of Application. 4 See Opposition at 2. 5 47 C.F.R. § 90.307. 6 47 C.F.R. § 90.155. 7 See Objection at 1-2; Reply at 1-4. Federal Communications Commission DA 08-578 2 3. Discussion. NSTN’s proposed site is 136.8 kilometers (85 miles) from Station KPBS. Under Section 90.307, the minimum permitted distance between a 470-512 MHz band base station that has associated mobile units and a protected adjacent-channel television station is 145 kilometers (90 miles),8 but the minimum permitted distance between a 470-512 MHz band base station without associated mobile units and a protected adjacent-channel television station is determined by reference to Table E of Section 90.309 of the Commission’s Rules.9 We agree with NSTN that the proposed base station meets the criteria in Table E, which requires at least sixty to sixty-seven miles separation (depending on power and antenna height). The mileage separation is sufficient because the proposed base station would not have any associated mobile units. We reject MRA’s suggestion that the fact that mobile units associated with other licensed base stations will utilize the proposed base station means that the proposed base station has associated mobile units for purposes of determining the minimum permitted distance. Under MRA’s interpretation, every base station would have associated mobile units. We do not believe that this is the intent of the rules, as it would render superfluous the method in the rules for determining the minimum permitted distances for base stations without associated mobile units.10 Similarly, given the intent of the rules to permit base stations that are utilized only by mobile units associated with another base station, we reject MRA’s position that Section 90.155 prohibits the construction of a base station that will not be utilized by its own associated mobile units. 4. 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, that the Informal Objection filed by Mobile Relay Associates, on May 18, 2007 IS DENIED, and application FCC File No. 0002919009 SHALL BE PROCESSED in accordance with this Order. 5. IT IS FURTHER ORDERED that the Motion to Strike filed by Mobile Relay Associates on June 7, 2007 IS GRANTED. 6. 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 Scot Stone Deputy Chief, Mobility Division Wireless Telecommunications Bureau 8 See 47 C.F.R. § 90.307(d). 9 See 47 C.F.R. §§ 90.307(a), 90.309 Table E. 10 Permitting base stations that are utilized only by mobile units associated with another base station to be located closer to protected adjacent-channel television station is consistent with the purpose of Section 90.307, which is to avoid interference to television reception caused by mobile units operating in or near the television station’s coverage area, see, e.g., County of Dauphin, Pennsylvania, Order, 22 FCC Rcd 8628, 8631 ¶ 10 (PSHSB PD 2007), because base stations utilized only by mobile units associated with another base station do not expand the authorized mobile operating area.