**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

) File Nos. 0001988156 and 0001988415

PacifiCorp )

)

and )

)

MariTEL Southern Pacific, Inc. and )

MariTEL Northern Pacific, Inc. )

)

Request for Waiver of Part 80 Rules to )

Permit Use of Maritime Frequencies for )

Private Land Mobile Radio Communications )

To: The Commission

**[OPPOSITION TO APPLICATION FOR REVIEW]{.underline}**

In accordance with Section 1.115(d) of the Federal Communications
Commission=s (Commission) rules, the National Telecommunications and
Information Administration (NTIA) requests that the Commission deny the
Application for Review filed by PacifiCorp challenging the July 10, 2006
Order issued in the above-captioned matter by the Chief, Public Safety
and Critical Infrastructure Division, Wireless Telecommunications
Bureau.[^1] NTIA initially filed a Petition to Deny the subject
applications because they would cause interference to frequencies used
for Automatic Identification System (AIS) operations.[^2] Since that
time, the Commission designated VHF Channel 87B, a frequency at issue in
this matter, exclusively for AIS operations.[^3] For the reasons
discussed below, and explained more fully in the attached letter from
the United States Coast Guard (Coast Guard), PacifiCorp=s Application
for Review should be denied.[^4]

NTIA takes this opportunity to reiterate its concern over the use of
waiver requests to reallocate frequencies. PacifiCorp requests a waiver
of the maritime regulations in Part 80 of the Commission=s rules to
permit it to deploy land mobile operations under Part 90 of the
Commissions=s rules. NTIA considers such waiver requests as an attempt
to circumvent the FCC=s rulemaking process by reallocating spectrum
through the Commission=s waiver procedures. As noted in the Petition to
Deny, a grant of the requested waiver amounts to an impermissible
reallocation of these frequencies from their primary maritime purpose to
Private Land Mobile Radio (PLMR) use. As such, the waiver request
greatly exceeds an *ad hoc* exception to the rule for which a rule
waiver can be authorized.

PacifiCorp=s Application for Review also fails to recognize the
Commission=s rules that permit certain *ex parte* presentations from the
Federal Government. Specifically, the rules exempt presentations to or
from an agency or branch of the Federal Government that involves a
matter over which that agency and the Commission share jurisdiction.[^5]
NTIA manages and authorizes the U.S. Government=s use of the radio
spectrum and, as such, shares jurisdiction with the Commission over the
regulation of all of the nation=s airwaves.[^6] Any presentation to the
Commission regarding the use of maritime frequencies is therefore exempt
under the Commission=s *ex parte* rules.

For the reasons stated above, and more fully addressed in the attached
letter from the Coast Guard, NTIA respectfully urges the Commission to
deny PacifiCorp=s Application for Review.

> Respectfully submitted,

John M.R. Kneuer Kathy Smith

Acting Assistant Secretary for Chief Counsel

Communications and Information

Fredrick R. Wentland

Associate Administrator

Office of Spectrum Management

National Telecommunications and

Information Administration

U.S. Department of Commerce

Room 4713

1401 Constitution Avenue, N.W.

Washington, DC

\(202\) 482-1816

Dated: August 24, 2006

![](media/image1.wmf) 2410

August 23, 2006

Mr. Fredrick R Wentland

Associate Administrator, Office of Spectrum Management

National Telecommunications and Information Administration

Herbert C. Hoover Building

14^th^ and Constitution Avenue, N.W.

Washington, D.C. 20230

Dear Mr. Wentland:

We reviewed the "Application For Review"("AFR") submitted by PacifiCorp
in connection with the FCC Decision to grant the PacifiCorp applications
and waiver requests pursuant to certain conditions the USCG found
acceptable. Just as the United States Coast Guard ("USCG" or "Coast
Guard") was opposed to the waiver requests, it is similarly opposed to
the AFR.

The USCG is opposed to the AFR filed by PacifiCorp challenging the July
10, 2006 Order issued by the Chief, Public Safety and Critical
Infrastructure Division, Wireless Telecommunications Bureau ("WTB").[^7]
PacifiCorp's Application for Review should be summarily dismissed or, in
the alternative, denied. The WTB's action in this proceeding was proper
as it deemed that the public interest would be served by placing limited
conditions on the grant of multiple waiver requests in order to protect
the core purpose of the subject internationally allocated,
internationally interoperable, frequencies: to promote the safety of
life and property at sea and on our nation's waterways.

**1. PacifiCorp's Application For Review is Procedurally Defective**

Because PacifiCorp's AFR fails to concisely and plainly state the
questions presented for review, fails to state with particularity the
respects in which the action taken by the designated authority should be
changed, and fails to state the form of relief sought, it is
procedurally defective pursuant to the requirements of § 1.115 of the
rules and should be summarily dismissed.

Pursuant to § 1.115 of the FCC's rules, an application for review must:
(i) concisely and plainly state the questions presented for review; [^8]
(ii) state with particularity the respects in which the action taken by
the designated authority should be changed;[^9] and, (iii) state the
form of relief sought.[^10] In the subject Order, the WTB granted in
part, and dismissed in part, PacifiCorp's multiple waiver requests. The
Commission granted the assignment applications for the requested
frequencies[^11] and the multiple waivers of Part 80 of the rules to
permit private land mobile radio ("PLMR") operations on VHF Public Coast
("VPC") spectrum to be governed by Part 90 of the rules, as opposed to
the Maritime Part 80 rules, in areas more that 20 miles from the Pacific
Ocean and the Columbia River, on the express condition that no
interference is caused to current or future marine communications.[^12]

In its Application For Review, PacifiCorp does not present any questions
for review. PacifiCorp presents argument headings and arguments, which
could answer certain questions, but no questions are "concisely and
plainly stated" in accordance with the rules. The rules require that
questions be presented so that the Commission and other parties to the
proceeding are not forced to "guess" what the AFR is requesting.[^13]
Moreover, in its AFR, PacifiCorp states that the Commission's "Order
must be reversed and PacifiCorp's applications and waiver should be
granted as filed." [^14] Because the Commission granted the license
assignment applications, and the Commission granted the multiple rule
waivers, subject to certain conditions, PacifiCorp's AFR neither states
"with particularity" the respects in which the action taken by the
designated authority should be changed nor the form of relief sought.
PacifiCorp seems to be requesting the impossible -- if the Commission's
Order is reversed, as requested, it would not be possible to grant the
applications and rule waivers. Furthermore, it is uncertain from a
reading of PacifiCorp's AFR what its position is on the condition that
its communications not cause interference to present or future marine
communications. The Commission might be able to infer that PacifiCorp is
opposed to that condition, but the position is by no means clearly
stated. While the Commission might be able to venture a guess as to what
PacifiCorp is actually requesting in its AFR, the rules were designed to
avoid such a guessing game when they specifically provide that the AFR
shall concisely and plainly state with particularity what the AFR is
requesting.

In *Dial-A-Page, Inc*[^15]*,* the Commission indicated that an
application for review that did not conform with § 1.115 of the rules
should be dismissed. This was based on the Commission's statement in
*NAACP Legal Defense Fund*[^16] where the Commission found that the
application for review under consideration presented only generalized
arguments and issues for review were not "stated with particularity."
While the Commission ruled on the merits in that particular case, it
gave clear direction concerning the filing of applications for review:
"in the future we will look with extreme disfavor upon appeals to the
Commission that are formulated in such a generalized manner."[^17]

The AFR is also defective with relation to allegations of impermissible
*ex parte* contacts. The Commission's *ex parte* rules provide, at
§1.1214, that:

> Any party to a proceeding . . . who has substantial reason to believe
> that any violation of this subpart has been . . . committed shall
> promptly advise the Office of General Counsel in writing of all the
> facts and circumstances which are known to him or her.[^18]

Obviously, if PacifiCorp believes that an impermissible *ex parte*
contact was made, the proper procedure is to notify the General
Counsel's office, not to file an AFR. Furthermore, the appropriate
remedy for violation of the *ex parte* rules is disqualification from
further participation in the proceeding, have the offending party's
claim "dismissed, denied, disregarded, or otherwise adversely
affected."[^19] A violation of the *ex parte* rules does not mandate the
reversal of a Commission Order as requested by PacifiCorp in its AFR.
Accordingly, the AFR is not an appropriate vehicle to allege *ex parte*
rule violations, nor is the remedy requested by PacifiCorp for the
alleged violation appropriate. This provides yet another reason why the
AFR should be summarily dismissed as procedurally defective.

**2. Maritime Frequencies and PLMR Operations**

PacifiCorp had requested a complex series of rule waivers that were
granted, with some limitations. PacifiCorp requested waiver of the
following rule provisions: 47 C.F.R. §§ 80.105( general obligations of
coast stations), 80.106 (intercommunication with ships and aircraft),
80.123 (affording priority to marine communications, transmitter power
and height limitations), 80.203 (equipment certification and
operations), 80.213 (modulation requirements), 80.371 (public
correspondence frequencies) ***and*** "any additional Part 80 provisions
the Commission deems necessary in order to operate the frequencies in a
manner consistent with its current Part 90 licenses."[^20] As evidenced
by its filing, PacifiCorp desires to operate Part 80 stations as Part 90
stations, not only in areas that are geographically removed from the
Pacific Ocean and the Columbia River, but also up to and including
approximately 450 miles of heavily traveled Pacific coastline and the
Columbia River, which includes some of the busiest ports in the U.S. The
WTB noted in its Order that "past requests have not involved the
extensive coastal and major river coverage as that proposed \[by
PacifiCorp\] herein."[^21]

The VPC frequencies in question are governed by Part 80 of the
Commission's rules which provide, among other things, that the maritime
rules are in accordance with applicable statutes, international
treaties, and agreements and recommendations to which the United States
is a party, including, but not limited to the International
Telecommunication Union Radio Regulations (which allocate the VPC
frequencies internationally for maritime communications)[^22] and the
International Convention for Safety of Life at Sea ("SOLAS")
Convention[^23] (signatories to SOLAS will make available shore-based
facilities for maritime mobile service in the band between 156 MHz and
174 MHz)[^24]. The VPC frequencies involved in this proceeding represent
the last internationally interoperable maritime radio spectrum available
in the United States.[^25] Because of the importance of these
frequencies for maritime communications to promote the important
national public interest in maritime safety and homeland security, these
frequencies must be protected and preserved for current and future
maritime use.[^26] While § 80.123 of the Commission's rules (47 C.F.R. §
80.123) does provide for service to stations on land there are carefully
crafted rule provisions that create limits on such operations, including
transmitter power and antenna height limitations, and required safety
watches in order to protect the primary and priority marine
communications. PacifiCorp sought waivers of these very rule provisions.

The Commission has previously held that while the public interest would
be served by giving licensees more flexibility in the use of the VPC
maritime spectrum by allowing certain land mobile operations, the **core
purpose** of this of this internationally allocated radio service
spectrum \-- to promote the safety of life and property at sea \-- must
be maintained.[^27] The Commission has specifically discussed arguments
relating to expanded use of VPC frequencies. In rejecting a proposal to
reallocate the VPC frequencies for PLMRS use, the Commission stated:

> \[W\]hen the Commission permitted VPC stations to serve units on land,
> and again when it converted VPC licensing to a geographic approach, it
> remained committed to maintaining the core purpose of the Maritime
> Services-providing for the unique distress, operational, and personal
> communications needs of vessels at sea and on inland waterways. We
> recently reiterated this commitment in another proceeding, when we
> rejected Maritel\'s suggestion that the watch requirement be modified
> for VPC stations that serve units on land. We are concerned that
> implementation of Maritel\'s proposed rule changes would undermine
> that purpose by, in effect, reallocating Part 80 spectrum for primary
> land mobile radio use. That demand for VHF maritime public
> correspondence services has decreased does not decrease our commitment
> to marine safety. We recognize that upwards of ten million U.S. and
> foreign mariners in American waters have radios that operate in this
> spectrum, and we further recognize the importance of ensuring that
> there remains adequate, available internationally-interoperable
> spectrum to the American maritime public to meet their common needs,
> and for purposes of safety and security. Although we are here
> proposing to relax the Part 80 regulations to allow for more efficient
> use of the spectrum, we are not considering actions that would
> effectively create a *de facto* reallocation or otherwise remove this
> spectrum from the maritime community.[^28]

The Commission should consider the foregoing procedural background if it
decides to review the WTB's Order in this proceeding.

**3. The WTB's Order Is Not Arbitrary, Capricious or An Abuse of
Discretion**

The instant AFR involves a request for a rule waiver. In this
proceeding, the WTB found, in accordance with §1.925, that subject to
the limitations imposed, the underlying purpose of the subject rules
would not be served by application to the instant case, and a grant of
the waiver, as conditioned, would be in the public interest. [^29]
Implicit in this decision is the fact that the WTB also found a grant of
the waiver without the limitations imposed would not serve the public
interest. Therefore, if the Commission reviews the WTB Order, the
question for consideration must focus on whether the WTB properly
considered and explained its public interest findings. Because this is
not a rulemaking proceeding, the WTB has latitude to make determinations
it believes are in the public interest without seeking or relying on
comments, so long as it explains its reasoning.

Reviewing courts have found that an agency\'s action is neither
arbitrary nor capricious so long as the agency examines the relevant
data and articulates a satisfactory explanation for its action,
including a rational connection between the facts found and the choice
made.[^30] The examination is limited to determining whether the agency
considered the relevant factors and offered a rational explanation for
its chosen policy.[^31] An agency\'s explanation need not be of \"ideal
clarity,\" but need simply rationally connect the facts found and the
agency\'s choice. An agency has never been required to respond to each
and every comment, or to analyze every issue or alternative raised in
the proceeding.[^32] In a recent decision challenging the denial of a
waiver by the Commission, the D.C. Circuit held that its review was
extremely limited, and that it vacated waiver denials only when "the
agency's reasons are so insubstantial as to render that denial an abuse
of discretion."[^33]

The WTB Order clearly and succinctly considered the relevant factors
involved in this proceeding and offered a rational explanation for its
chosen policy. The WTB explained that while, on the one hand, this
request was similar in many respects to other waiver requests, it was,
on the other hand, very different due to the extensive coverage of the
Pacific coastline (approximately 450 miles) and the Columbia River (with
some of the busiest ports in the country) (*Order,* ¶ 6). The WTB
discussed the USCG propagation analysis, and indicated that there was
disagreement over whether there would be interference from the proposed
operations, and noted it was suggested that there are other ways to
mitigate interference (*Order* ¶ 7). The WTB then went on to discuss the
setbacks provided for in the in response to the *Commonwealth of
Virginia* waiver request and noted that the 20-mile geographic setback
proposed by MariTEL and PacifiCorp was substantially less than the
setback deemed insufficient in Virginia for the use of AIS Channel 87B,
and indicated it recognized the importance of interference free AIS
operations and other maritime communications (*Order* ¶ 8). With respect
to other VPC channels, the WTB indicated it believed there should be
some setbacks in response to the instant waiver request, and indicated
that those setbacks be 20 miles from the coast and the Columbia River
(*Order* ¶ 9). Thus, the WTB found that the 20-mile setback proposed by
PacifiCorp was inadequate to protect AIS operations but, the 20-mile
setback coupled with the condition applied in other similar waivers that
no interference be caused to current or future maritime communications
would be adequate to protect other maritime communications (*see Order*
¶10).

PacifiCorp presents several arguments as to why the WTB Order is
arbitrary, capricious, and an abuse of discretion. Because PacifiCorp
failed to comply with the rules requiring concise and plainly stated
questions for review, it raised several arguments, many of which are
irrelevant to a review of the WTB decision. As is evident from a review
of PacifiCorp's Request for Waivers, its arguments largely represent the
same arguments raised in that request. PacifiCorp's relevant arguments
in its AFR revolve around the 20-mile setback and technical proposals to
mitigate interference. An examination of PacifiCorp's arguments reveals
that the Commission considered all of the issues raised by PacifiCorp
and, in acting on the rule waiver requests in accordance with the public
interest requirements of § 1.925 of the rules, considered the relevant
factors and offered a rational explanation for its decision.

PacifiCorp alleges that the 20-mile setback adopted by the Commission
was not suggested anywhere in the record, and that the setback was,
therefore, arbitrarily adopted without any reasoned explanation. This
20-mile setback was, in fact, suggested by PacifiCorp in its waiver
request as that was the setback suggested to protect MariTEL's
operations on maritime Channels 85 and 87, the two channels MariTEL was
maintaining for maritime communications.[^34] Evidently, PacifiCorp
believed that a 20-mile setback was necessary to protect maritime
communications. While PacifiCorp did suggest additional technical
parameters along with the 20-mile setback, the WTB explained it believed
that the 20-mile setback, coupled with the condition that PacifiCorp not
cause interference to current or future maritime communications would
protect maritime communications and therefore serve the public
interest.[^35] In making this finding, the Commission noted that there
was disagreement over whether there would, in fact, be interference from
the proposed operations, and explained that there were various proposals
presented to mitigate interference.[^36]

**4. The USCG Did Not Engage in Impermissible *Ex Parte* Contacts**

PacifiCorp alleges that the USCG made impermissible *ex parte* contacts
with the FCC staff. Even assuming for the sake of argument that such
contacts were made, these contacts would be exempt under the
Commission's *ex parte* rules. Section 1.1204(5) of the Commission's
rules provides an exemption for *ex parte* presentations where the
Federal agency making the presentation shares jurisdiction with the
FCC.[^37] Section 80.2 of the rules, relating to "Other regulations that
apply" specifically provides that "The Commandant, U.S. Coast Guard has
promulgated regulations which affect radio telecommunication equipment
carriage . . . requirements for certain ships."[^38] The USCG is a
military service[^39] responsible for, among other things, promulgating
and enforcing regulations for the promotion of safety of life and
property on the high seas and waters subject to the jurisdiction of the
U.S.[^40] In furtherance of its mission, the USCG has promulgated rules
requiring the carriage of equipment operating within the 156-162 MHz
frequency band to provide for communications with public coast
stations.[^41] The USCG also actively participates in the formulation
and adoption of treaties, agreements and recommendations of the ITU and
SOLAS, to which Part 80 of the Commissions rules are subject.[^42]

Furthermore, the International Maritime Organization ("IMO") has noted
that distress and safety communications with stations operated by the
USCG are insufficient in themselves for ensuring the safety of vessels
for which the USCG (and the Commission) is responsible.[^43]
Participation in this proceeding by the USCG is specifically related to
its functions of protecting the safety of life and property, and
protecting the safety and security of navigation in our nation's
waterways. The USCG is not seeking spectrum for its own uses as alleged
by PacifiCorp; rather the USCG's interest in this proceeding is to
ensure that the spectrum needs of the maritime community to whom it is
responsible, are and will continue to be met. As noted earlier and as
recognized by the Commission, the spectrum addressed in this proceeding
is the last remaining internationally interoperable spectrum available
in the United States. Any Commission decision concerning these
frequencies affects the overall USCG mission, which includes, but is not
limited to, matters concerning military operations and functions,
homeland security, safety of life and property on the waterways, and the
safety and security of navigation.

Based on the foregoing, it is clear that the USCG shares jurisdiction
over the subject matter involved in this proceeding. If an *ex parte*
contact were made, it would be exempt under the Commission's rules.

PacifiCorp next argues that even if an *ex parte* contact is exempt,
there must be a disclosure by the Commission.[^44] This is not
completely accurate because the rule provision only requires "new
factual information" to be disclosed.[^45] PacifiCorp does not provide
an explanation of what "new" information it believes was involved. A
review of the formal pleadings filed demonstrates that everything the
WTB relied upon in its Order was contained in those filings. As
discussed previously, the notion of a 20-mile setback (which PacifiCorp
alleges was inserted at the behest of the USCG) was introduced by
MariTEL and PacifiCorp in their filings as that which was necessary to
protect the maritime communications that MariTEL would be providing. It
is quite reasonable for the Commission to conclude that a 20-mile
setback would be necessary to protect all maritime communications -- and
that conclusion could be drawn from the record.

PacifiCorp also argues that because the USCG is a "party" in the
proceeding, it is not entitled to an exemption in accordance with §
1.1204(a)(6).[^46] This rule provision relates to specific parties and
proceedings only, and is not a general overall prohibition. Obviously,
if the Commission had intended to make this provision applicable in all
circumstances, it would not have singled out these parties and
proceedings. Therefore, this provision is inapplicable to this
proceeding.

Accordingly, there has been no impermissible *ex parte* contact by the
USCG. As discussed previously at Section 1. herein, an AFR is not the
proper vehicle to bring this issue to the attention of the Commission,
and even if a violation of the *ex parte rules* occurred, it would not
trigger an automatic reversal of the WTB's decision as suggested by
PacifiCorp.

For all of the foregoing reasons, the United States Coast Guard believes
that PacifiCorp's Application For Review should be summarily dismissed
or, in the alternative, denied in all respects.

Sincerely,

JOSEPH D. HERSEY, Jr.

> Chief, Spectrum Management Division

By Direction of the Commandant

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**CERTIFICATE OF SERVICE**

I, Milton Brown, do hereby certify that on this 24^th^ day of August
2006, the foregoing opposition to PacifiCorp=s Application for Review
was served on the following persons (via hand delivery or first class
mail, postage pre-paid):

Marlene H. Dortch \* (Original and 14 Copies) Russell H. Fox, Esq.

Secretary Mintz, Levin, Cohn, Ferris, Glovsky and

Federal Communications Commission Popeo, P.C.

c/o Natek Inc. 701 Pennsylvania Ave., NW

236 Massachusetts Ave., NE Suite 900

Suite 110 Washington, DC 20004

Washington, DC 20002 - - Counsel to MariTEL

Hon. Kevin J. Martin Joseph D. Hersey, Jr.

Chairman Chief, Spectrum Management Division

Federal Communications Commission United States Coast Guard

445 - 12^th^ Street, SW U.S. Department of Homeland Security

Washington, DC 20554 2100 Second Street, SW

Washington, DC 20593-0001

Hon. Michael J. Copps Jeffrey L. Sheldon, Esq.

Commissioner McDermott Will & Emery LLP

Federal Communications Commission 600 Thirteenth Street, NW

445 - 12^th^ Street, SW Washington, DC 20005-3096

Washington, DC 20554 - - Counsel to PacifiCorp

Hon. Jonathan S. Adelstein Catherine W. Seidel

Commissioner Acting Bureau Chief

Federal Communications Commission Wireless Telecommunications Bureau

445 - 12^th^ Street, SW Federal Communications Commission

Washington, DC 20554 445 - 12^th^ Street, SW

Washington, DC 20554

Hon. Deborah Taylor Tate Hon. Robert M. McDowell

Commissioner Commissioner

Federal Communications Commission Federal Communications Commission

445 - 12^th^ Street, SW 445 - 12^th^ Street, SW

Washington, DC 20554 Washington, DC 20554

\* Hand- Delivered

Michael Wilhelm Sam Feder

Division Chief General Counsel

Public Safety & Critical Infrastructure Division Federal Communications
Commission

Wireless Telecommunications Bureau 445 - 12^th^ Street, SW

Federal Communications Commission Washington, DC 20554

445 - 12^th^ Street, SW

Washington, DC 20554

Milton Brown

[^1]: *In re PacifiCorp and MariTel Southern Pacific, Inc. and MariTel
    Northern Pacific, Inc. Request for Waiver of Part 80 Rules to Permit
    Use of Maritime Frequencies for Private Land Mobile Radio
    Communications,* File Nos. 0001988156 and 0001988415, DA 06-1414
    (rel. July 10, 2006) (the AOrder@).

[^2]: *See* Letter dated July 6, 2005 from Fredrick R.Wentland,
    Associate Administrator, Office of Spectrum Management, NTIA to
    Catherine Seidel, Acting Chief, Wireless Telecommunications Bureau
    (Petition to Deny).

[^3]: *See* Amendment of the Commission=s Rules Regarding Maritime
    Automatic Identification Systems, *Report and Order and Further
    Notice of Proposed Rulemaking and Fourth Memorandum Opinion and
    Order,* WT Docket No. 04-344, RM-10821, PR Docket No. 92-257, FCC
    06-108 (rel. July 24, 2006).

[^4]: *See* Letter to Fredrick R. Wentland, Associate Administrator,
    Office of Spectrum Management, NTIA from Joseph D. Hersey, Chief,
    Spectrum Management Division, U.S. Coast Guard, Department of
    Homeland Security (August 24, 2006).

[^5]: *See* 47 C.F.R. \' 1.1204(5).

[^6]: *See* 47 U.S.C. \' 902(b)(2)(A); *see also* 47 U.S.C. \' 305.

[^7]: *In re PacifiCorp and MariTEL Southern Pacific, Inc. and MariTEL
    Northern Pacific, Inc. Request for Waiver of Part 80 Rules to Permit
    Use of Maritime Frequencies for Private Land Mobile Radio
    Communications,* File Nos. 0001988156 and 0001988415, DA 06-1414
    (rel. July 10, 2006)(the "*Order*").

[^8]: 47 C.F.R. § 115(b)(1).

[^9]: 47 C.F.R. § 115(b) 3)

[^10]: 47 C.F.R. § 115(b)(4)

[^11]: The grant excluded Channel 87B, an Automatic Identification
    System ("AIS") frequency; however, PacifiCorp states that it is not
    challenging this exclusion, *see* PacifiCorp AFR at p.5, n.11.

[^12]: Order, ¶ 12.

[^13]: *See NAACP Legal Defense Fund*, 45 RR 2d 1705 (1979) n.7 ("The
    requirements that applicants state with particularity the basis for
    seeking Commission review provides important procedural protection
    to opposing parties, since they are thereby afforded reasonable
    notice of the basis upon which to formulate their own arguments to
    the Commission.")

[^14]: PacifiCorp AFR at 2.

[^15]: 75 F.C.C. 2d 432 (1980).

[^16]: 45 RR 2d 1505 (1979)

[^17]: *Id.* at n.7.

[^18]: 47 C.F.R. §1.1214.

[^19]: 47 C.F.R. § 1.1216.

[^20]: PacifiCorp, *Request for Waiver of Various Part 80 Rules to
    Operate VPC Stations as Part 90 PLMR Stations,* Application File
    Nos. 0001988156 and 0001988415.

[^21]: Order at ¶ 6.

[^22]: *See International Telecommunication Union Radio Regulations,*
    Appendix 18.

[^23]: *See* 47 C.F.R. § 80.1.

[^24]: SOLAS Regulations, Chapter 4, Reg. 5.1.3.

[^25]: These frequencies are allocated on an international basis for
    port operation, ship movement, and public correspondence, *see
    International Telecommunication Union Radio Regulations,* Appendix
    18.

[^26]: *See In re Commonwealth of Virginia Request For Waiver of Part 80
    Rules to Permit Use of Maritime Frequencies For Private Land Mobile
    Communications,* FCC File Nos. 0001583565, 0001583569, DA-04-2516
    (rel. Aug. 12, 2004) ¶ 10; *In re County of Placer, California,
    Warren C. Havens, and MariTEL Southern Pacific, Inc. Request for
    Waiver of Part 80 Rules To Permit Use of Maritime Frequencies For
    Private Land Mobile Radio Communications,* File Nos.
    0001750425,00017754000, 0001791005, 0001823171, DA 05-437 (rel. Feb.
    16, 2005) ¶ 15.

[^27]: *See* Amendment of the Commission's Rules Concerning Maritime
    Communications, *Second Report and Order and Second Further Notice
    of Proposed Rule Making,* PR Docket No. 92-257, 12 FCC Rcd16949, ¶ 1
    (1997).

[^28]: MariTEL, INC. and Mobex Network Services, LLC, *Notice of
    Proposed Rule Making,* WT Docket

    No. 04-257, 19 FCC Rcd 15225 (2004), ¶ 13.

[^29]: *Order, ¶* 5. 47 C.F.R. § 1.925(b)(3) provides that to grant a
    waiver the Commission must find that (a) the underlying purpose of
    the rule(s) would not be served or would be frustrated by
    application to the instant case, and grant of the requested waiver
    would be in the public interest; or, (b) in light of unique or
    unusual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the applicant has no reasonable alternative. 47 C.F.R. §
    1.925(b)(3); *see also WAIT Radio v. FCC,* 418 F. 2d 1153, 1159
    (D.C. Cir. 1969).

[^30]: *Motor Vehicle Mfrs. Ass\'n v. State Farm Mut. Auto. Ins. Co*.,
    463 U.S. 29, 43 (1983); *Reytblatt v. NRC*, 105 F.3d 715, 722 (D.C.
    Cir. 1997).

[^31]: *United States Air Tour Ass\'n v. FAA*, 298 F.3d 997, 1005 (D.C.
    Cir. 2002).

[^32]: *See* [*Thompson v. Clark,* 741 F.2d 401, 408
    (D.C.Cir.1984)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW6.08&referencepositiontype=S&serialnum=1984139101&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=408&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^33]: *ICO Global Communications v. FCC,* 428 F. 3d 264, 269 (D.C. Cir.
    2005); *citing BDPCS, Inc. v. FCC,* 351 F. 3d 1177, 1181-82 (D.C.
    Cir. 2003) (*citing Mountain Solutions, Ltd. V. FCC, 197 F.3d 512
    (D.C. Cir. 1999).*

[^34]: *See e.g.* PacifiCorp AFR, pp. 3, 4.

[^35]: *See Order, ¶¶* 8-10*.*

[^36]: *Id. At ¶* 7. PacifiCorp also alleges that the WTB's decision was
    arbitrary and capricious because it failed to acknowledge or cite
    PacifiCorp's Opposition, specifically with respect to "technical
    alternatives" proffered by PacifiCorp. Other than mentioning that
    "technical alternatives" were proffered, PacifiCorp offers no
    explanation of how these alternatives would have had a bearing on
    the WTB's decision. While the WTB did not cite the Opposition, it
    did indicate in its *Order* that there were several proposals
    presented for interference mitigation (*Order, ¶* 7). So, the fact
    that the Opposition was not cited does not mean that the proposals
    were not considered by the WTB in making its public interest
    finding.

[^37]: 47 C.F.R. § 1.1204(5).

[^38]: 47 C.F.R. 80.2.

[^39]: *See* 14 U.S.C. § 1.

[^40]: *See* 14 U.S.C. § 2.

[^41]: *See* 46 C.F.R. 28.245(a)(1) ("Each vessel must be equipped with
    a VHF radiotelephone capable of transmitting and receiving on the
    frequency or frequencies within the 156-162 MHz band necessary to
    communicate with a public coast station . . . .").

[^42]: *See* 47 C.F.R. § 80.1.

[^43]: *See* SOLAS Regulations, Chapter IV, Regulation 4.1.8 ("Every
    ship, while at sea shall be capable of transmitting and receiving
    general radiocommunications to and from shore-based radio systems .
    . . .")

[^44]: PacifiCorp AFR 21.

[^45]: 47 C.F.R. 1.1204(a)(5).

[^46]: PacifiCorp AFR 21-22.