Federal Communications Commission	DA 18-1021 



Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

AIR-TEL, LLC

Petition for Declaratory Ruling and Waiver 
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ORDER ON RECONSIDERATION

   Adopted:  October 3, 2018	Released:  October 4, 2018

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

1. Introduction.  This Order on Reconsideration addresses a Petition See Petition of Air-Tel, LLC, for Reconsideration (filed Jan. 2, 2018) (Petition).  CTIA filed comments.  Comments of CTIA (filed June 29, 2018).  Air-Tel and Fathym, Inc., filed reply comments.  Reply of Air-Tel, LLC, to CTIA (filed July 11, 2018); Reply of Fathym, Inc., to CTIA (filed July 11, 2018).  The Petition, comments, and reply comments are viewable in the Commission’s Universal Licensing System under Call Sign WQLX454.
 filed by Air-Tel, LLC (Air-Tel).  Air-Tel seeks reconsideration of an order by the Wireless Telecommunications Bureau’s Mobility Division (Division) denying Air-Tel’s request for a declaratory ruling that its GPS-assisted location service constitutes radiolocation under part 90 of the Commission’s rules. See Air-Tel, LLC; IOU Acquisitions, Inc., Order, 32 FCC Rcd 10157 (WTB MD 2017) (Order).  The request for declaratory ruling was filed jointly by Air-Tel and IOU Acquisitions, Inc. (IOU) (Air-Tel IOU Petition).  IOU is not a party to the instant Petition.
  In the alternative, Air-Tel requests a waiver of the Commission’s part 90 rules to permit it to resume providing those services under its radiolocation service license. See Petition at 5-12.
  We deny the petition.  
2. Background.  Radiolocation service is authorized under part 90 of the Commission’s rules and permits base and mobile radiolocation operation of “stations to determine distance, direction, speed, or position, by means of radiolocation devices, for purposes other than navigation.” 47 CFR §§ 90.101, 90.103.  
  Air-Tel is the licensee of part 90 radiolocation station WQLX454, which authorizes operations at various geographic locations on spectrum in the 3300-3600 MHz bands. Station WQLX454 is authorized for locations in Arizona, Colorado, Florida, Idaho, and Utah.  The license initially was granted to Sage and Company, LLC, in 2010, see FCC File No. 0004184297, which assigned it to IOU in 2014, see FCC File No. 0006461572.  IOU assigned it to Air-Tel in 2016.   See FCC File No. 0007307197.
  Air-Tel operated the licensed facilities to provide commercial fleet management services.  To do so, it used base stations to send signals to mobile units, which responded by transmitting their geographic coordinates (determined by means of an embedded Global Positioning System (GPS) unit) back to the base station. See Order, 32 FCC Rcd at 10157, para. 2.
  After the Commission’s Enforcement Bureau questioned whether Air-Tel’s operations constituted radiolocation, Letter from Aspasia A. Paroutsas, Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, to Eric St. Germain, President, Air-Tel, LLC (Apr. 18, 2017) (on file in EB-SED-17-00024053); Letter from Aspasia A. Paroutsas, Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, to Jonathan M. Grossman, Esq., counsel to Air-Tel, LLC (July 19, 2017) (on file in EB-SED-17-00024053); Email from Jason Koslofsky, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission to David Kaufman, Esq., Rini O’Neil, PC, counsel to IOU Acquisitions, Inc. and Air-Tel, LLC (Oct. 13, 2017 3:19 PM EST) (on file in EB-SED-17-00024050 and EB-SED-17-00024053).
 Air-Tel discontinued those operations and filed a petition requesting a declaratory ruling that the transmission of GPS location information is permissible as radiolocation. It also requested a waiver to permit it to provide that service in the 3500-3550 MHz band using equipment that had not been approved for operation on those frequencies.
  
3. The Division issued an order denying the Air-Tel IOU Petition.  Noting that the Commission’s rules define radiodetermination as “[t]he determination of position, or the obtaining of information relating to position, by means of the propagation of radio waves,” See Order, 32 FCC Rcd at 10158, para. 4 (citing 47 CFR § 90.7).  Radiolocation is a subset of radiodetermination.  Specifically, radionavigation is radiodetermination for the purposes of navigation, and radiolocation is radiodetermination for purposes other than radionavigation.  See 47 CFR §§ 2.1(c), 90.7, 90.103.  
 the Division rejected Air-Tel’s suggestion that any use of radio to obtain information relating to an object’s position, including the transmission of GPS coordinates, constitutes radiodetermination.  The Division concluded that the transmission of GPS coordinates does not constitute radiolocation as that term is defined in the Commission’s rules, 47 CFR §§ 2.1(c), 90.7, 90.101, 90.103.
 and, as a result, that Air-Tel’s radiolocation service license does not authorize such operations. Order, 32 FCC Rcd at 10159, para. 7.  Because it denied the request for declaratory ruling, the Division dismissed as moot the request for a waiver to allow Air-Tel to provide service in the 3500-3550 MHz band using equipment that had not been approved for operation on those frequencies.  See id. at 10159, paras. 7-8.  

4. In denying Air-Tel’s petition, the Division cited a 2017 Commission decision, See id. at 10158, para. 4 (citing Amendment of Parts 2, 15, 80, 90, 97, and 101 of the Commission’s Rules Regarding Implementation of the Final Acts of the World Radiocommunication Conference (Geneva, 2012)(WRC-12), Other Allocation Issues, and Related Rule Updates, Report and Order, 32 FCC Rcd 2703, 2714, para. 30 (2017) (WRC-12 Report and Order); Amendment of Parts 1, 2, 15, 25, 27, 74, 78, 80, 87, 90, 97, and 101 of the Commission’s Rules Regarding Implementation of the Final Acts of the World Radiocommunication Conference (Geneva, 2007) (WRC-07), Other Allocation Issues, and Related Rule Updates, et al., Report and Order, Order, and Notice of Proposed Rulemaking, 30 FCC Rcd 4183, 4226, n.345 (2015) (WRC-07 Report and Order)).
 which found that systems using radio direction to determine the location of radio buoys operate under a radiolocation allocation, but that “[r]adio buoys using GPS technology do not fall under this definition because their position is not determined by means of the propagation properties of radio waves.” WRC-12 Report and Order, 32 FCC Rcd at 2714, n.72.
  In that Order, the Commission, concluding that it was in the public interest to give the U.S. commercial fishing fleet “a legitimate path to operate” GPS-equipped radio buoys, added a maritime mobile allocation to “address[] the limited situations where radio buoys cannot be authorized under the radiolocation service allocation because of newer technology that uses features like GPS rather than radiodetermination.” See id. at 2714-15, paras. 30-31.
  The Commission acted “without prejudice to enforcement [action] regarding prior unauthorized radio buoy operations.” WRC-07 Report and Order, 30 FCC Rcd at 4203, para. 43.

5. On January 2, 2018, Air-Tel petitioned for reconsideration of the Division’s decision or, in the alternative, a waiver to permit it to provide GPS tracking services on radiolocation frequencies. See generally Petition.
  While its petition was pending, the Commission, on September 14, 2018, issued a Notice of Apparent Liability for Forfeiture proposing a $210,000 penalty against Air-Tel for conducting unauthorized operations on radiolocation frequencies. See IOU Acquisitions, Inc.; Air-Tel, LLC, Notice of Apparent Liability for Forfeiture, File Nos. EB-SED-17-00024051 & EB-SED-17-00024053, FCC 18-128 (Sept. 14, 2018) (NAL).
  In the NAL, the Commission stated that the Division had correctly concluded that Air-Tel’s GPS tracking services did not constitute radiolocation, See id. at 7-8, para. 14.
 and it concluded that an upward adjustment of the base forfeiture was appropriate because Air-Tel conducted unauthorized operations over an extended period. See id. at 13, para. 27.

6. Discussion.  The Commission, in its recent NAL, concurred with the Division’s decision denying Air-Tel’s request for declaratory ruling by reaffirming that GPS tracking is not a radiolocation service. See id. at 7-8, para. 14.
  The Commission’s conclusion in the NAL renders Air-Tel’s arguments that it should be able to provide GPS-assisted location on radiolocation frequencies moot, as the Wireless Telecommunications Bureau lacks delegated authority to contradict the Commission.  We address Air-Tel’s arguments briefly, however, for the sake of completeness and because, in the NAL, the Commission did not rebut the specific arguments Air-Tel made in its Petition.  First, Air-Tel suggests that the 1993 Budget Act requires the Commission to allow Air-Tel to provide the same services as “other CMRS [commercial mobile radio service] competitors provide.” Petition at 4 (citing Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, Title VI, § 6002(b), 107 Stat. 312, 392).  
  This argument fails because radiolocation is a private mobile radio service rather than CMRS under our rules, so the 1993 Budget Act is not germane. See 47 CFR § 20.3.

7. Second, Air-Tel disputes the Division’s conclusion, in the Order denying its petition, that the Commission’s 2017 allocation decision found that GPS-assisted operations do not fall within the definition of radiolocation service.  Air-Tel contends that the 2017 allocation decision did not decide whether GPS tracking services should be deemed to be radiolocation because, in that proceeding, the Commission and the commenters were both operating under the assumption that GPS should be allowed via radio buoys.  Air-Tel asserts that, because there was “no reason to quibble about the definition of radiolocation” in that rulemaking, the Commission did not have the opportunity to decide whether radiolocation includes GPS-assisted services. Petition at 4-5.
  Air-Tel misreads that decision.  Specifically, in the 2017 Report and Order adopting the allocation decision, the Commission explained that it was adding a maritime mobile allocation because GPS tracking was not authorized under the existing radiolocation allocation. See WRC-12 Report and Order, 32 FCC Rcd at 2714, para. 30.

8. Finally, Air-Tel claims that “to define radiolocation so narrowly is contrary to the public interest and the original intent when the rule was created.  That original intent is to use radiolocation spectrum for the purpose of location service, using the latest and best technologies for achieving location of tangible things.” Petition at 5.
  Air-Tel cites no authority to support its assertion about the Commission’s original intent, however, and we find no support for it in the Commission’s rules or decisions.  The definitions of radiodetermination and radiolocation have been part of the Commission’s rules since 1960, See Amendment of Parts 2 and 11 of the Commission’s Rules to Provide for the Use of the Band 10000-10500 Mc by the Non-Government Radiolocation Service, Report and Order, 39 F.C.C. 733 (1960).
 and the Commission has not revised them to include transmission of GPS data.  The Commission’s 2017 decision demonstrates that GPS tracking is permitted on radiolocation spectrum only when our rules make a specific provision for it, so interested parties must seek to amend the rules accordingly rather than request a declaratory ruling that the rules already accommodate it.  We therefore deny the petition for reconsideration.
9. Similarly, we conclude that grant of Air-Tel’s alternative request for a waiver of the Commission’s part 90 rules to permit it to provide GPS tracking services under its radiolocation service license would conflict with the Commission’s conclusion that a forfeiture is warranted for such operations.  The Commission would not have proposed a forfeiture (indeed, an enhanced forfeiture) if it found, based on the same facts, that requiring Air-Tel to comply with the rules was inequitable, unduly burdensome, or contrary to the public interest, or that Air-Tel had no reasonable alternative. See City Page & Cellular Services, Inc d/b/a City Beepers, et al., Order, 18 FCC Rcd 22043, 22043, para. 2 (EB 2003) (rescinding a forfeiture after determining that the subject had received a waiver of the violation); Verillink Corporation v. Tellabs Industries, Inc., Memorandum Opinion and Order, 60 Rad. Reg. 2d (P&F) 1683, para. 13 (CCB 1986) (same), 1986 WL 290928.  The Commission knew that Air-Tel had a pending waiver request.  See NAL, para. 9.
  We therefore deny the waiver request.
10. Accordingly, IT IS ORDERED that, 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 CFR § 1.106, the Petition for Reconsideration filed by Air-Tel, LLC, on January 2, 2018, IS DENIED.
11. This action is taken under delegated authority pursuant to sections 0.131 and 0.331 of the Commission’s Rules, 47 CFR §§ 0.131, 0.331.
						FEDERAL COMMUNICATIONS COMMISSION
	

		
						Scot Stone
						Deputy Chief, Mobility Division 
						Wireless Telecommunications Bureau


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