[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Rules and Regulations]
[Pages 8478-8483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4723]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 93-35; FCC 96-53]
Channel Exclusivity to Qualified Private Paging Systems at 929-
930 MHz
AGENCY: Federal Communications Commission.
ACTION: Final Rule.
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SUMMARY: In this Memorandum Opinion and Order, the Commission reviews
six petitions for reconsideration and/or clarification of the PCP
Exclusivity Order in this docket establishing channel exclusivity for
qualified local, regional, and nationwide paging systems in the 929-930
MHz band, and grants the petitions in part and denies them in part. The
petitions requesting exclusivity to regional 929 MHz systems in regions
defined by state borders, rather than based on their actual service
areas, are denied. The petitions that seek to increase the maximum
transmitter power for local and regional systems are granted.
Additionally, the Commission partially grants certain pending waiver
requests of incumbent licensees seeking additional time to comply with
multi-frequency transmitter specifications. The intended effect of this
order is to affirm that exclusivity to regional 929 MHz systems is
granted based on the service area as set forth in the PCP Exclusivity
Order and to amend the rules to facilitate the rapid and efficient
licensing of paging in the 929-930 MHz band. These amendments to the
regional channel exclusivity scheme established in the PCP Exclusivity
Order will facilitate the development of seamless, wide-area 900 MHz
paging systems.
EFFECTIVE DATE: April 4, 1996.
FOR FURTHER INFORMATION CONTACT: Mika Savir, Commercial Wireless
Division, Wireless Telecommunications Bureau, at (202) 418-0620.
SUPPLEMENTARY INFORMATION: This Memorandum Opinion and Order in PR
Docket No. 93-35; RM Docket 7986, adopted February 8, 1996, and
released February 13, 1996, is available for inspection and copying
during normal business hours in the FCC Dockets Branch, Room 230, 1919
M Street N.W., Washington D.C. The complete text may be purchased from
the Commission's copy contractor, International Transcription Service,
Inc., 2100 M Street N.E., Suite 140, Washington D.C. 20037 (202) 857-
3800.
Synopsis of Memorandum Opinion and Order
I. Introduction
Before the Commission are six petitions for reconsideration and/or
clarification of our PCP Exclusivity Order, Amendment of the
Commission's Rules to Provide Channel Exclusivity to Qualified Private
Paging Systems at 929-930 MHz, Report and Order, PR Docket No. 93-35,
58 FR 62289 (November 26, 1993) (PCP Exclusivity Order), establishing
channel exclusivity for qualified local, regional, and nationwide
paging systems in the 929-930 MHz band. After reviewing the issues
involved, the Commission grants the petitions in part and denies them
in part. In particular, the Commission denies petitions requesting that
exclusivity be granted to regional 929 MHz systems in regions defined
by state borders, rather than based on their actual service areas. The
Commission partially grants those petitions that seek to increase the
maximum transmitter power for local and regional systems. The
Commission also partially grants certain pending waiver requests of
incumbent licensees seeking additional time to comply with the multi-
frequency transmitter specifications. The Commission otherwise affirms
the rules governing 929 MHz private paging as adopted in the PCP
Exclusivity Order.
Additionally, the Commission is adopting a Notice of Proposed Rule
Making in WT Docket No. 96-18, 61 FR 6199 (February 16, 1996) to
examine ways to promote continued growth of the paging industry. In the
Notice of Proposed Rulemaking, the Commission proposes to adopt new
rules providing that future licensing of all exclusive paging channels,
including 929 MHz channels, will be based on market-defined service
areas, with mutually exclusive applications to be resolved by
competitive bidding. Therefore, the conclusions reached in this
Memorandum Opinion and Order are subject to future modification based
on
[[Page 8479]]
the outcome of the comprehensive paging rulemaking.
II. Background
PCP Exclusivity Order. In the PCP Exclusivity Order, the Commission
implemented a system of exclusive licensing for qualified local,
regional, and nationwide 929 MHz private paging systems on 35 of 40
available channels. Prior to this action, all private paging
frequencies, including those at 929 MHz, were assigned on a non-
exclusive basis. The PCP Exclusivity Order concluded that enabling 929
MHz paging systems to operate on an exclusive basis is in the public
interest, due to the efficiencies and incentives such an approach
encourages in the marketplace. Specifically, the Commission indicated
that continued sharing of frequencies would undermine efficient use of
929 MHz paging channels as demand for paging services expands in the
future. The Commission observed that, while sharing is technically
feasible, dividing air time among multiple licensees imposes
significant constraints on the efficiency and quality of service in
crowded markets. The Commission also indicated that in a shared
environment, licensees are reluctant to invest in advanced paging
technology because of the risk that others will be assigned to the same
frequency in the future. The Commission concluded that exclusivity
would create a stable, predictable environment necessary for the
industry to attract investment in wide-area, high capacity paging
systems in the 929-930 MHz band.
The PCP Exclusivity Order established the requirements for
licensees to obtain channel exclusivity in the 929 MHz band. In
particular, the Commission established minimum standards for the
configuration of protected systems, including the number of
transmitters required for local, regional, and nationwide systems, and
the treatment of multi-frequency transmitters. The Commission also
implemented geographic separation standards for placement of co-channel
stations, to protect qualified local or regional systems, and
established effective radiated power (ERP) limits for all such systems.
The PCP Exclusivity Order also set forth other prerequisites to
obtaining exclusivity. Most notably, the Commission conditioned
exclusivity on construction of a qualified system within eight months
of licensing. For larger systems, the Commission indicated that a new
applicant may request an extension of up to three years, based on its
showing of need, a construction timetable, and its establishment of an
escrow account or securing of a performance bond to cover construction
costs. Other matters addressed in the PCP Exclusivity Order include
issues associated with application of exclusivity to existing systems
and to future licensing, and certain transitional procedures. In
particular, the Commission grandfathered all existing systems and
indicated that it would grant immediate exclusivity to existing systems
that satisfied the new exclusivity criteria.
Petitions for Reconsideration/Waivers. The Commission received
petitions for reconsideration of the PCP Exclusivity Order from the
following businesses and organizations: (1) the National Association of
Business and Educational Radio and its Association for Private Carrier
Paging Section (NABER); (2) First American National Paging (First
National); (3) Afro-American Paging, Inc. (AAP); (4) American
Mobilephone, Inc. (AMI); (5) Paging Network, Inc. (PageNet); MAP Mobile
Communications, Inc. (MAP); and (6) Metrocall, Inc. The Commission has
sought and received comment on the issues raised by these petitions.
Some parties also have filed petitions asking that various provisions
of the new exclusivity rules be waived to accommodate specific hardship
situations. These requests generally involve waiver of the construction
requirements, ERP limits, or system configuration rules. For the most
part, the Commission will decide these waiver requests in other
proceedings. The Commission partially grants the waiver requests of
certain grandfathered licensees seeking time to convert their systems
from multi-frequency transmitter to single-frequency transmitter
operations for exclusivity purposes.
III. Discussion
A. Configuration of Local Systems
Background. To qualify for channel exclusivity under the 929 MHz
paging rules, the PCP Exclusivity Order provided that a local system
must consist of at least six contiguous transmitters, except in the New
York, Los Angeles, and Chicago markets, where 18 contiguous
transmitters are required. The Commission also provided that
transmitters will be considered contiguous if (1) each transmitter is
located within 25 miles of at least one other transmitter in the
system; (2) the combined area defined by a 12.5 mile radius around each
transmitter forms a single contiguous area; and (3) no transmitter is
co-located with any other transmitter being counted as part of the
local system.
Petitions for Reconsideration/Comments. On reconsideration, AAP
challenges Section 90.495 (a)(1)(ii) of the rules, as adopted in the
PCP Exclusivity Order, which requires that a 12.5 mile radius
surrounding each transmitter form a single contiguous area. AAP argues
that there was no notice of this rule change, because the restriction
was not part of our original proposal and is not a logical outgrowth of
the PCP Exclusivity Notice, Amendment of the Commission's Rules to
Provide Channel Exclusivity to Qualified Private Paging Systems at 929-
930 MHz, Notice of Proposed Rulemaking, PR Docket No. 93-35, 58 FR
17819 (April 6, 1993) (PCP Exclusivity Notice). AAP claims that as a
result of the added 12.5 mile radius requirement, one of its systems
now is disqualified from obtaining exclusivity. AAP contends that if it
is the Commission's goal to confine systems to smaller geographic
areas, a 15 mile radius standard is more equitable. The Commission has
received no comments on AAP's reconsideration proposal.
Decision. The Commission will not eliminate or alter the
requirement for local exclusivity that requires that a 12.5 mile radius
surrounding each transmitter form a single contiguous area. The 12.5
mile rule is a necessary component of the exclusivity rules, because it
ensures that a local system will serve a contiguous geographic area.
Without such a requirement, licensees could obtain local exclusivity
based on non-contiguous placement of transmitters, undermining the
Commission's effort to establish truly local systems serving an
indigenous locale or community. Proportionately, the 12.5 mile distance
is one-half the distance of the 25 mile rule, and thereby works well to
ensure that transmitters are located to serve a single contiguous
geographic territory.
While the 12.5 mile rule was not expressly included in the PCP
Exclusivity Notice, the Commission believes that this restriction
nonetheless is a ``sufficiently minor'' difference from the rule
proposed to be a ``logical outgrowth'' of the Commission's efforts to
establish a system of local exclusivity. The PCP Exclusivity Notice
sought comment on the configuration of locally protected systems.
Specifically, the Commission proposed that each transmitter in a
qualified system would have to be within 25 miles of another
transmitter to count toward the number required for exclusivity.
Incorporation of the 12.5 mile restriction in the final rules
constitutes a minor, technical
[[Page 8480]]
change to the original proposal, which is necessary to ensure that
local exclusivity is awarded to operators that locate transmitters in
close proximity to one another within a system. The 12.5 mile rule
effectively closes a loophole in the original proposal, and comports
with the Commission's intent to create local paging systems in the 929-
930 MHz band. Only AAP has objected to the change, apparently based on
its own unique situation, that one of its transmitters is 13.2 miles
from the nearest other transmitter, which is best resolved by a request
for waiver.
B. Configuration of Regional Systems
Background. The PCP Exclusivity Order provided protection for
exclusive regional systems based on the location of stations comprising
the system. To qualify for exclusivity, a regional system must consist
of 70 or more transmitters, not necessarily contiguous, located in no
more than twelve adjacent states in the continental United States. The
rules provide regional systems with exclusivity based on a prescribed
separation distance around each of the regional licensee's stations,
ranging from 112 to 187 kilometers (70 to 116 miles) depending on the
class of the station. Also, in each of the top thirty markets,
specified in Section 90.741 of the Commission's rules, no transmitter
may be counted as part of a regional system unless it also meets the
requirements for local exclusivity in that market. Petitions for
Reconsideration/Comments. NABER and PageNet argue that the geographic
scope of exclusivity granted to 929 MHz regional systems should be
based on state borders, rather than the location of the system's
stations. According to NABER, allowing regional paging systems
statewide exclusivity in each state in which the system provides
service is needed to promote the development of regional systems. NABER
and PageNet also express concern that under the current rules,
speculators can file applications in strategic locations designed
solely to extract payment from regional systems seeking to expand their
coverage. NABER therefore recommends that the Commission grant regional
applicants (i.e., applicants proposing a system of 70 or more
transmitters) exclusivity extending to the borders of any state in
which the applicant constructs at least one transmitter, except that in
states having markets listed among the top 30, the applicant must
construct six or 18 transmitters, depending on the size of the market.
NABER also requests that the Commission permit regional licensees to
locate transmitters anywhere within any state included in the system,
as long as they maintain the required geographic separation from
facilities in adjoining regions.
AMI and ADC express concern about the application of NABER's
proposal to licensees who are entitled to regional exclusivity under
our existing rules. In general, these commenters are opposed to any
change that would result in divesting licensees of existing exclusivity
rights. ADC suggests that the Commission not apply statewide
exclusivity to licensees whose applications (including those for local
exclusivity) were received by NABER for coordination on or before March
31, 1994, at least where a portion of the involved local system was
constructed and in operation before October 14, 1993.
ARCH, API, and Airtouch, on the other hand, favor statewide
exclusivity for licensing as proposed by NABER and PageNet. According
to these commenters, permitting licensees to achieve exclusivity on a
statewide basis is essential to the development of truly regional
systems. Airtouch and ARCH believe AMI and ADC's opposition to
statewide exclusivity stems from the unique market situation of these
licensees, and contend that the appropriate remedy for AMI and ADC is a
waiver, not a decision to retain the status quo.
Decision. The Commission declines to reconsider the rules defining
regional exclusivity for 929 MHz regional systems in this proceeding.
The Commission is considering the issue of revising the paging
licensing area definitions in a separate Notice of Proposed Rule Making
on market-area licensing. Under the market-area licensing proposal,
paging systems in general, including 929 MHz systems, no longer would
be licensed on a station-by-station basis. Instead, licensees would be
licensed within Commission-defined service areas, and would be afforded
the same flexibility, to the extent feasible, as cellular and PCS
licensees to locate, design, construct, and modify system facilities
throughout those areas. Because the Commission is addressing this issue
in a broader context than 929 MHz paging alone, it is premature to
modify the rules for this single category of paging service in response
to NABER's reconsideration petition.
Moreover, the Commission is not persuaded that paging licensing
areas should be based on state borders, as NABER proposes. In all other
services where Commission-defined licensing areas have been adopted, as
opposed to station-by-station licensing, the Commission has used
licensing area definitions based on economic markets or trading areas
(e.g., MSAs/RSAs for cellular, and MTAs/BTAs for PCS and 900 MHz SMR).
By contrast, using state borders would create licensing areas with
political boundary lines which do not necessarily correspond to
economic markets or trading areas and, in some instances, which may cut
across them. The Commission therefore concludes that the status quo
should prevail while alternative licensing area definitions more
consistent with our approach in other services are considered.
C. Effective Radiated Power
Background. In the PCP Exclusivity Order, the Commission
established effective radiated power (ERP) limits of 1000 watts for
local and regional 929 MHz systems and 3500 watts for nationwide
systems. The Commission noted that the 3500 watt limit for nationwide
systems was the same as the limit for nationwide common carrier paging
systems in the 931 MHz band. The Commission declined to adopt a 3500
watt limit for non-nationwide systems, notwithstanding the fact that
the Part 22 rules then in effect allowed 931 MHz non-nationwide common
carrier licensees to operate internal system sites at 3500 watts. The
Commission reasoned that higher power limits for 931 MHz licensees were
justified because demand for 931 MHz licenses largely was confined to
expansion by existing systems. The Commission concluded that a 1000
watt maximum for 929 MHz non-nationwide systems was appropriate to
preserve opportunities for entry by new systems.
Petitions for Reconsideration/ Comments. NABER and PageNet request
that the Commission increase the maximum ERP for 929 MHz regional
systems from 1000 watts to 3500 watts, provided that adjacent co-
channel systems remain protected. NABER claims that, in the context of
the statewide regional licensing scheme it has proposed, a 3500 watt
power limit would not restrict opportunities for the entry of new
systems into the market, which was the reason the Commission rejected a
3500 watt ERP previously. According to NABER and PageNet, use of high-
power transmitters within the boundaries of a regional system will
enable licensees to offer superior service at a lower cost. Celpage,
ARCH, Airtouch, and API support NABER's proposal.
MAP seeks clarification on whether the 1000 watt ERP restriction
applies only to facilities that define the exterior of the licensee's
service area, and whether higher power facilities are
[[Page 8481]]
permitted at internal sites within existing service areas. MAP observes
that 931 MHz common carrier paging licensees are permitted to operate
at 3500 watts ERP at internal sites within their service areas. MAP
asserts that principles of regulatory parity require us to apply the
same rule to private paging systems. The Commission received no
comments on MAP's request for clarification.
Decision. Except in certain limited circumstances discussed below,
the Commission declines to raise the maximum ERP for non-nationwide 929
MHz systems at this time. NABER's proposal to raise the ERP limit is
premised on the Commission adopting its proposal to base regional
exclusivity on state borders, rather than site location. The Commission
has declined to reconsider the definition of regional exclusivity,
therefore NABER's rationale for raising the ERP limit does not apply.
The Commission's decision on this issue does not preclude future
changes to the rules if the Commission adopts some form of market-based
licensing for 929 MHz channels. The Commission seeks further comment on
height and power limits for common carrier and private carrier paging
in the Notice of Proposed Rule Making.
The Commission agrees with commenters that under certain
circumstances, allowing local and regional 929 MHz licensees to operate
at greater than 1000 watts ERP may be appropriate. Specifically, if
operation of sites at a higher power would not expand a licensee's
existing service-area contour, there is no reason to prohibit operation
at such higher power. The Commission will modify the rules to allow
non-nationwide licensees to operate sites within their existing service
area at up to 3500 watts ERP, provided that such operation does not
increase the minimum geographic separation applicable to co-channel
systems under Section 90.495(b)(2) of the Commission's rules. This will
give licensees greater flexibility to build technically and
economically efficient systems, without compromising opportunities for
co-channel entry in areas adjacent to those systems.
D. Slow Growth Eligibility
Background. In the PCP Exclusivity Order, the Commission adopted
rules allowing for so-called ``slow growth'' extensions of the eight-
month construction requirement for larger system applicants.
Specifically, for applications filed after October 14, 1993, a period
of up to three years may be authorized for construction and
commencement of operations if the proposed system is composed of more
than 30 transmitters and the applicant submits specific justification
for an extended implementation period. Applicants must provide a
detailed construction timetable and evidence of the ability to fund
construction, either in the form of a construction escrow account or a
performance bond covering construction costs.
Petitions for Reconsideration/Comments. NABER, PageNet, Metrocall,
First National Paging, and AMI challenge the Commission's decision to
make the three-year slow-growth option available only to post-October
14, 1993 paging applicants. NABER contends that the Commission did not
provide adequate notice of the rule, because the PCP Exclusivity Notice
did not expressly propose to limit the slow growth option to new
applicants. According to NABER, the restriction has a detrimental
impact on existing licensees because of the added construction demands
posed by the Commission's treatment of multi-frequency transmitters
under the exclusivity rules. AMI suggests that slow-growth eligibility
be extended to licensees who filed for exclusivity after the March 31,
1993 release date of the PCP Exclusivity Notice, rather than limited to
applicants filing after the October 14, 1993 date established in the
PCP Exclusivity Order. According to AMI, there is no link between the
October 14, 1993 date and the decision by any affected licensee to
rebuild its facilities.
Commenters generally support extending the slow growth option to
grandfathered licensees on the grounds that additional construction
time is needed for incumbents to transition to our new system of
channel exclusivity. Celpage, however, is concerned about the treatment
of licensees who relied on single-frequency, as opposed to multi-
frequency, transmitters. Celpage does not want operators that decided
to build dedicated facilities at each licensed site, rather than to
rely on inter-carrier agreements allowing them to utilize other
licensees' dual-frequency transmitters, to be penalized under an
extended transition period. Celpage therefore seeks reinstatement of
certain ``single use'' transmitter licenses, whose authorizations
expired while the exclusivity rules were under consideration. Arch and
Airtouch support a slow growth period for existing licensees, but argue
that the bond and escrow requirements for new construction should not
apply in such cases.
Decision. The Commission will not change the rules to make pre-
October 14, 1993 applicants automatically eligible for the extended
implementation construction schedule. October 14, 1993, the date of the
Sunshine Notice on the PCP Exclusivity Order, is the cutoff date for
slow growth eligibility. The Commission will deny slow growth
extensions to grandfathered licensees generally. As of our Sunshine
Notice on October 14, 1993, applicants reasonably could anticipate that
the Commission was going to adopt channel exclusivity rules for 929-930
MHz paging licensees. To deter speculative filings, therefore, the
Commission decided not to grandfather anyone that filed after October
14, 1993. The date for dividing ``old'' from ``new'' applicants also is
the appropriate date for triggering slow growth eligibility. Moreover,
the Commission never suggested that slow growth extensions would apply
to grandfathered licensees. Indeed, in an April 6, 1993 Order,
Amendment of the Commission's Rules to Provide Channel Exclusivity to
Qualified Private Paging Systems at 929-930 MHz, Order, PR Docket No.
93-35, 58 FR 21111 (April 19, 1993) (Order), the Commission indicated
that all parties in the application and coordination process were
expected to comply with existing eight-month construction requirements
while the rule making was underway. Consequently, applicants falling
into the grandfathered category cannot legitimately claim that they
expected to be eligible for slow growth extensions.
E. Multi-Frequency Transmitters
Background. In the PCP Exclusivity Order, the Commission considered
the issue of whether licensees should be allowed to count multi-
frequency transmitters for exclusivity purposes on more than one
channel. The Commission concluded that licensees should not be barred
from using multi-frequency transmitters, but that each such transmitter
would be counted only once for exclusivity purposes. This requirement
was to ensure that licensees would not claim exclusivity on multiple
channels by repeatedly counting the same transmitter. The Commission
noted that a licensee using multi-frequency transmitters could qualify
for exclusivity on two frequencies by constructing twice the number of
transmitters required to obtain one channel.
Petitions for Reconsideration/Comments. Several parties urge the
Commission to relax the ``single-count'' rule to accommodate incumbent
licensees who had constructed systems based on multi-frequency
transmitters prior to the adoption of the PCP Exclusivity Order. NABER
argues that these licensees need time to construct
[[Page 8482]]
sufficient single-frequency transmitters to comply with the exclusivity
requirements on a single-count basis. PageNet suggests that existing
licensees be given two years from the time they qualify for earned
exclusivity to make this conversion. First National Paging suggests
establishing a reasonable transition period for incumbent licensees,
beyond the existing eight-month construction requirement.
In addition to reconsideration petitions on this issue, the
Commission has received waiver requests from Arch, Comtech, First
National Paging, Metrocall, Airtouch, and Message Center Beepers. At
the time the PCP Exclusivity Order became effective, each of these
petitioners was operating systems on dual channels using multi-channel
transmitters. The number of transmitters in place in each system is
sufficient to qualify for regional or nationwide exclusivity on one
channel, but under the single-count rule petitioners would be required
to construct additional sites to obtain protection for their operations
on the second channel. Because their construction plans prior to the
PCP Exclusivity Order relied on use of dual-channel transmitters,
petitioners request twenty-four months rather than eight months to
reconfigure their systems and construct additional sites to meet the
requirements of the single-count rule.
Decision. The Commission declines to modify the general rule that
no transmitter may be counted more than once for exclusivity purposes.
This rule prevents the potential hoarding of multiple frequencies, by
requiring paging licensees seeking more than one exclusive frequency to
meet a higher construction threshold. Licensees may continue to use
multi-frequency transmitters in their systems, but exclusivity will be
conferred on multiple channels only if the total number of transmitters
is sufficient to qualify for exclusivity on each channel on a single-
count basis.
The Commission will grant some additional time to those
grandfathered licensees who have filed waiver requests to bring
existing systems into compliance with the single-count rule. Prior to
the adoption of the PCP Exclusivity Order, these licensees had embarked
on construction and operation of substantial systems relying on dual-
frequency transmitters. The adoption of the single-count rule required
these licensees to modify their plans to add additional transmitters in
order to gain full exclusivity protection for their existing systems.
The Commission believes that a reasonable time should be afforded to
petitioners to make this adjustment. The Commission notes that the risk
of allowing hoarding of frequencies is not present here, because the
systems at issue already are grandfathered on both channels,
petitioners substantially have constructed their systems and are
providing service to the public on a dual-channel basis, and the
additional construction needed will promote increased coverage and
better quality service.
The petitioners filed their initial requests for a twenty-four
month construction period in early 1994. Since that time, petitioners
have had substantial opportunity to construct additional facilities on
a single-frequency transmitter basis to bring their systems into
compliance. The Commission concludes that because of this elapsed time,
petitioners should be granted an amount of time consistent with their
original estimate of the time required to bring their systems into
compliance. The Commission grants Arch, Comtech, First National Paging,
Metrocall, Airtouch, and Message Center Beepers until six months after
the publication date of this Memorandum Opinion and Order in the
Federal Register to demonstrate that their grandfathered systems
qualify for exclusivity on a single-count basis.
F. Modification of Existing Systems
Background. In the PCP Exclusivity Order, the Commission concluded
that all existing 929 MHz licensees should be grandfathered under the
new rules whether or not they qualified for exclusivity. Thus,
incumbent systems that did not qualify for exclusivity would be allowed
to continue operating their existing facilities, and any licensee
granted exclusivity on the same channel in the same area would be
required to share the channel with the grandfathered system.
Grandfathered systems would not be allowed to add new facilities to
their systems, however, if such expansion conflicted with exclusivity
rights granted to another licensee.
Petitions for Reconsideration/ Comments. MAP contends that the
Commission should allow grandfathered licensees who do not qualify for
exclusivity to modify their existing systems in order to continue
service to subscribers. MAP argues that allowable modifications should
include changes in the number of paging receivers, type of emission,
antenna height, power, class of station, ownership or corporate
structure, and location of existing facilities. API opposes MAP's
proposal. API believes that minor and reasonable modifications to
existing facilities should be allowed, but that other changes should
not be permitted, particularly if the effect is to diminish or impair
the development of a co-channel system which already has qualified for
exclusivity in the same area. MAP replies that it is not asking to
expand the rights of grandfathered licensees, but only is seeking a
clarification of the types of ``minor'' modifications that the FCC will
allow. MAP does not want the rules interpreted in a manner that hampers
the ability of existing licensees to improve service, respond to
customer needs, and adjust to business changes.
Decision. The rules provide that grandfathered licensees who do not
qualify for exclusivity may make modifications to existing facilities
that do not impair the exclusivity rights of co-channel licensees or
otherwise violate our rules. There is no reason to change this rule,
based on MAP's petition. This issue is raised more broadly in the
Notice of Proposed Rule Making in WT Docket No. 96-18. Therefore, the
Commission will defer additional consideration of the issues raised by
MAP to that proceeding.
G. Miscellaneous
In the PCP Exclusivity Order, the Commission addressed the issue of
conditional operation of 929-930 MHz stations located above ``Line A,''
i.e., within 250 miles of the Canadian border. Noting that a 1992
agreement between the Commission and Canada's Department of
Communications had eliminated the need for international coordination
of these channels, the Commission stated that it would allow operation
of 929 MHz stations above Line A, provided all other requirements of
the rules are met. Some licensees have misconstrued this language in
the PCP Exclusivity Order to open all channels in the 929-930 MHz band
to operation by U.S. licensees above Line A. In fact, the 1992 U.S.-
Canada agreement provides that only channels between 929.5 and 930 MHz
may be used by U.S. licensees above Line A. To eliminate any possible
confusion, the Commission clarifies that operation above Line A (which
is now within 75 miles of the Canadian border) is allowed only on these
channels. In accordance with the 1992 agreement, no U.S. licensee may
operate conditionally or otherwise on channels from 929.0 MHz to 929.5
MHz.
IV. Conclusion
The Commission is amending the rules as described above to
facilitate the rapid and efficient licensing of paging in the 929-930
MHz band. The limited
[[Page 8483]]
amendments to the regional channel exclusivity scheme established in
the PCP Exclusivity Order will facilitate the development of seamless,
wide-area 900 MHz paging systems. Otherwise, the Commission affirms the
rules as adopted in the PCP Exclusivity Order.
V. Procedural Information
Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act of 1980, the
Commission's final analysis is as follows:
A. Need for and Purpose of This Action
This Memorandum Opinion and Order makes amendments to Part 90 of
the Commission's rules relating to channel exclusivity for qualified
local, regional, and nationwide private paging systems on certain
channels at 929-930 MHz. The amendments will promote the efficient use
of paging channels by encouraging investment in new paging technology.
They also will foster the development of more efficient paging systems
on a local, regional, and nationwide basis.
B. Summary of Issues Raised by Public Comments in Response to the
Initial Regulatory Flexibility Analysis
Only one party, Radiofone, filed comments responding to the Initial
Regulatory Flexibility Analysis (IRFA). Radiofone argued that the
Commission has not adequately addressed the impact of the proposal on
small paging systems and that exclusive licensing will preclude small
business entry at 900 MHz. The Commission reviewed Radiofone's concerns
in the context of PCP Exclusivity Order. No additional comments have
been submitted.
C. Significant Alternatives Considered and Rejected
As the Commission determined in the PCP Exclusivity Order and
affirms in this Memorandum Opinion and Order, this action is fully
consistent with the Commission's small business policy objectives. The
Commission noted in the IRFA that this action imposes certain
conditions on the licensing of smaller 929-930 MHz paging systems, but
these requirements are not unduly burdensome. The new rules contain
significant benefits for small businesses by protecting dozens of small
existing systems in place, allowing many such systems to obtain
exclusivity, and creating opportunities for expansion and new entry by
small business licensees.
Ordering Clauses
It is ordered that pursuant to the authority of Sections 4(i),
303(g) 303(r), and 332(a) of the Communications Act of 1934, as
amended, 47 U.S.C. Secs. 154(i), 303(g), 303(r) and 332(a), 47 CFR Part
90, is amended as set forth below, effective April 4, 1996.
It is further ordered that the petitions for reconsideration filed
by National Association of Business and Educational Radio/ Association
for Private Carrier Paging Section, First National Paging Company,
Inc., Afro-American Paging, American Mobilephone, Inc., Paging Network,
Inc., MAP Mobile Communications, Inc. and Metrocall, Inc. are granted
to the extent described above and are denied in all other respects.
It is further ordered that the waiver requests filed by American
Mobilephone, Inc., Arch Communications Group, Inc., Comtech, Inc.,
First National Paging Company, Inc., Message Center Beepers, Inc.,
Metrocall, Inc. and PacTel Paging (now ``Airtouch Paging'') are granted
to the extent described above.
It is further ordered that, pursuant to the authority of Section
0.331 of the Communications Act of 1934, as amended, we delegate to the
Wireless Telecommunications Bureau the authority to address any request
for waiver of our exclusivity rules, which shall be evaluated based on
criteria set forth above.
It is further ordered that this proceeding is terminated.
List of Subjects in 47 CFR Part 90
Common carriers.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Amendments
Part 90 of Chapter I of Title 47 of the Code of Federal Regulations
is amended as follows:
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
1. The authority citation for Part 90 continues to read as follows:
Authority: Sections 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303, and 332, unless otherwise noted.
2. Section 90.494 is amended by revising paragraph (g) to read as
follows:
Sec. 90.494 One-way paging operations in the 929-930 MHz band.
* * * * *
(g) Stations operating as part of regional or local systems under
Sec. 90.495(a)(1) or (a)(2) may also operate sites within their
existing service area at a maximum effective radiated power of 3500
watts, provided that such an increase in power does not expand the
licensee's service-area contour, and the requirements of
Sec. 90.495(b)(2) are met as to any co-channel system that has
preexisting exclusivity rights.
[FR Doc. 96-4723 Filed 3-4-96; 8:45 am]
BILLING CODE 6712-01-P
