Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0000310914      |
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| SHELL CHEMICAL COMPANY           | ** |                              |
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| Application for License for      | *  |                              |
| Trunked Industrial/Business      | *) |                              |
| Radio Service and Request for    | ** |                              |
| Waiver of Commission Rules       |    |                              |
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**ORDER**

**Adopted: February 22, 2002 Released: February 25, 2002**

By the Acting Chief, Public Safety and Private Wireless Division,
Wireless Telecommunications Bureau:

# introduction

1.  In this *Order*, we address the above-captioned application and
    waiver request of Shell Chemical Company (Shell) for authority to
    operate a trunked Industrial/Business Radio Service system at Deer
    Park, Texas.[^1] For the reasons set forth below, we deny the waiver
    request and dismiss the application.

# background

2.  On February 28, 2001, Shell, which operates a petrochemical facility
    in Deer Park, Texas, filed an application seeking authorization to
    use the following eleven Part 22 Public Mobile Service UHF channel
    pairs as part of a trunked Industrial/Business Radio Service system
    in Deer Park, Texas: 488/491.0250 MHz, 488/491.0500 MHz,
    488/491.0750 MHz, 488/491.1000 MHz, 488/491.1250 MHz, 488/491.1500
    MHz, 488/491.1750 MHz, 488/491.2000 MHz, 488/491.2250 MHz,
    488/491.2500 MHz, and 488/491.2750 MHz.[^2] Shell also filed a
    request for waiver of Sections 22.7, 22.621, and 22.651 of the
    Commission's Rules,[^3] as well as any other rules necessary to
    permit it to operate a Private Land Mobile Radio (PLMR) station on
    those frequencies.[^4] On May 15, 2001, the Commission released a
    Public Notice seeking comment on Shell's proposal.[^5] On June 8,
    2001, Westel Communications, Inc. (Westel), a commercial mobile
    radio service (CMRS) provider located in the Houston, Texas area,
    filed comments opposing Shell's application and Waiver Request.[^6]
    Comments were also filed by Shell on June 12, 2001.[^7]

3.  On June 20, 2001, Shell filed reply comments in which it amended the
    original application and revised its engineering analysis in an
    attempt to alleviate concerns raised by Westel that Shell's proposed
    operations would cause harmful interference to Westel's Station
    WXR977 in and around Houston, Texas.[^8] Shell's amended application
    reduces the proposed transmitter power from 25 to 15 watts effective
    radiated power (ERP) and decreases the proposed antenna height from
    49 to 15 meters.[^9] Moreover, the revised engineering analysis was
    performed using the interference criteria specified in Section
    22.567 of the Commission's Rules.[^10] On July 2, 2001, Westel filed
    supplemental comments opposing Shell's revised proposal.[^11]

# discussion

4.  Shell states that a reliable telecommunications system at its Deer
    Park facility is essential to the safety of Shell's employees and
    the people who live near the plant.[^12] The Deer Park plant is
    Shell's largest facility in the United States where crude oil is
    refined and manufactured into various products. Shell contends that
    a half million people and 7000 Shell employees are located within a
    six and a half-mile radius of the petrochemical facility at Deer
    Park, Texas.[^13] Shell contends that due to the size and location
    of its facility, a trunked radio system is essential in order to
    provide reliable and efficient communications.[^14] In addition,
    Shell has provided evidence that there are no available frequencies
    in the 450-470 MHz, 470-512 MHz, 806-860 MHz, or 935-940 MHz bands
    at Deer Park, Texas, for trunked operations.[^15] Shell argues that
    these are unique factual circumstances warranting grant of its
    Request.[^16] Further, Shell contends that its amended proposal
    would provide "co-channel interference protection to Westel's
    system."[^17] On the other hand, Westel alleges "that use of the
    referenced frequencies by Shell will still cause interference to
    Westel."[^18]

5.  A waiver may be granted where the applicant demonstrates that:

> \(i\) The underlying purpose of the rule(s) would not be served or
> would be frustrated by application to the instant case, and that a
> grant of the requested waiver would be in the public interest; or
>
> \(ii\) In view of unique or unusual factual circumstances of the
> instant case, application of the rule(s) would be inequitable, unduly
> burdensome or contrary to the public interest, or the applicant has no
> reasonable alternative.[^19]

6.  Based upon our review of the record in this proceeding, we conclude
    that Shell has not demonstrated sufficiently that a waiver is
    warranted under the circumstances presented. In this regard, we find
    in this case that Shell's proposed station would not meet the
    interference criteria set forth in Section 22.567 of the
    Commission's Rules.[^20] Although the Commission has no specific
    interference rules for base-to-mobile operations on the subject
    frequencies (which are allotted under Section 22.651 of the
    Commission's Rules), we find that Section 22.567 of the Commission's
    Rules, which is used by Shell and Westel in their pleadings and
    which applies to similar frequencies, is an appropriate means of
    determining whether interference will exist.[^21] Under that rule,
    an application may be granted only if "\[t\]he interfering contour
    of the proposed transmitter does not overlap the service contour of
    any protected co-channel transmitter controlled by a carrier other
    than the applicant, unless that carrier has agreed in writing to
    accept any interference that may result from operation of the
    proposed transmitter."[^22] The distance to the service area contour
    of the incumbent stations is calculated using the following
    equation: d =1.726 x h^0.35^ x p^0.18^, where d is the radial
    distance in kilometers, h is the radial antenna HAAT in meters, and
    p is the radial ERP in watts.[^23] For stations with HAAT of less
    than 150 meters, the distance to the interference contour of the
    proposed station is calculated using the formula d = 9.471 x h^0.23^
    x p^0.15^.[^24] In both cases, the rules provide that "\[t\]he value
    used for p in the above formula must not be less than 27 dB less
    than the maximum ERP in any direction, or 0.1 watt, whichever is
    more."[^25]

7.  Shell proposes to use a directional antenna with a beamwidth of 60
    degrees and a front-to-back ratio of 35 dB.[^26] Shell offers an
    analysis that purports to show that its proposed operation would not
    interfere with Westel's station.[^27] Shell uses an ERP of less than
    0.1 watt in the equations under Section 22.567 of the Commission's
    Rules, despite the rule's requirement that 0.1 watt be the minimum
    value.[^28] In using this value, Shell argues that "the Commission
    may use actual HAAT and ERP data in resolving petitions to
    deny."[^29] Shell's interpretation of Section 22.567(f)(4) of the
    Commission's Rules, however, is incorrect. That rule provides:

    The distance from the transmitting antenna to the interfering
    contour along any radial other than the eight cardinal radials is
    routinely calculated by linear interpolation of distance as a
    function of angle. However, in resolving petitions to deny, the FCC
    may calculate the distance to the interfering contour using the
    appropriate formula in paragraph (f) of this section with actual
    HAAT and ERP data for the inter-station radial and additional
    radials above and below the inter-station radial at 2.5°
    intervals.[^30]

    A typical interference analysis first calculates the eight cardinal
    radials using the formulas in Section 22.567(f)(1)-(3) of the
    Commission's Rules.[^31] Next, linear interpolation is routinely
    used in order to complete the outer boundary of the interfering
    contour.[^32] The rule means that, in order to resolve petitions to
    deny, actual ERP may be used to complete this outer boundary of the
    interfering contour by calculating the distance from the
    transmitting antenna to the interfering contour along "the
    inter-station radial and additional radials above and below the
    inter-station radial at 2.5 degree intervals."[^33] Calculation of
    the cardinal radials, however, still requires the use of a minimum
    ERP of 0.1 watt, and Shell's use of actual ERP in its calculations
    is thus contrary to the rule.

8.  Using 0.1 watt as the ERP of the proposed Shell base stations, the
    interference contours from such base stations overlap the service
    contour of Westel's transmitter at Missouri City, Texas. Also, using
    that figure, the interference contours of Westel's stations
    completely encompass the service area contour of Shell's proposed
    station. Further, although these equations are based on a terrain
    variation of 50 meters, the actual terrain variation for Houston is
    significantly less than terrain variation on which the formulas were
    derived. Since the terrain variation is less than 50 meters, the
    actual received signals from each facility would be greater than
    those predicted by the formula. Moreover, because some of Shell's
    proposed mobiles would operate on the base channel pairs listed on
    Section 22.651 of the Commission's Rules at a power of 20 watts, the
    areas of interference from Shell's mobile units could be even
    greater than those of the base stations. Thus, we conclude that
    Shell's proposed station would interfere with Westel's Station
    WXR977 at Missouri City, Texas. Accordingly, we conclude that a
    waiver of the Commission's Rules would not be appropriate here
    because one of the underlying purposes of the rules -- protection
    from interference -- would be frustrated if we granted a waiver in
    this case.

9.  Moreover, while we recognize the potential public interest benefits
    of Shell's proposal, we find that Shell has not satisfied the second
    prong of the Commission's waiver standard because it has not
    demonstrated that this situation constitutes a unique or unusual
    factual circumstance.[^34] In this connection, Shell states that use
    of the subject frequencies is essential to safe day-to-day
    operations, that all possible options have been explored with no
    reasonable alternative, and that the revised proposal uses
    engineering solutions that meet Shell's communications needs without
    disrupting Westel's operations, thereby promoting the public
    interest.[^35] While we believe that safe operations is an important
    public policy goal, in light of our conclusion that Shell's proposed
    operations and Westel's operations would interfere with each other,
    we believe that a grant of Shell's waiver request would not
    necessarily provide the significant safety benefits claimed by
    Shell. Similarly, although there is often a shortage of spectrum in
    certain areas of the country, such a shortage is not a unique or
    unusual circumstance that, standing alone, would justify grant of a
    waiver.[^36] Finally, as Shell's public interest arguments here are
    largely based on its incorrect claim that its "requested operation
    lies outside the service area of Westel,"[^37] we do not believe
    that the public interest would be served by granting the waiver
    request.[^38]

# conclusion and ordering clauses

10. We conclude that Shell's proposed operations at Deer Park, Texas
    would cause harmful interference to the co-channel operations of
    Westel, an existing CMRS provider, and that Shell's need for
    spectrum does not constitute a unique or unusual factual
    circumstance sufficient to warrant a waiver of the Commission's
    interference protection rules. Therefore, because Shell has not met
    the Commission's criteria for granting a waiver in the instant case,
    its waiver request will be denied, and its application will be
    dismissed.

11. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.925 and 22.567 of the Commission's Rules, 47 C.F.R. §§
    1.925, 22.567, the request for waiver filed on March 12, 2001 by
    Shell Chemical Company IS DENIED.

12. IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.934(d)(2) and 22.567 of the Commission's Rules, 47 C.F.R.
    §§ 1.934(d)(2), 22.567, the application filed on March 12, 2001 by
    Shell Chemical Company IS DISMISSED.

13. 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

    Barry J. Ohlson

    Acting Chief, Public Safety and Private Wireless Division

    Wireless Telecommunications Bureau

[^1]: FCC File No. 0000310914 (Application).

[^2]: Shell offers an alternative proposal, stating that if the
    Commission prefers to assign 6.25 kHz offset frequencies, Shell
    would accept the following fifteen channel pairs: 488/491.01875 MHz,
    488/491.03125 MHz, 488/491.04375 MHz, 488/491.05625 MHz,
    488/491.06875 MHz, 488/491.08125 MHz, 488/491.09375 MHz,
    488/491.10625 MHz, 488/491.11875 MHz, 488/491.13125 MHz,
    488/491.14375 MHz, 488/491.15625 MHz, 488/491.16875 MHz,
    488/491.18125 MHz, and 488/491.19375 MHz.

[^3]: 47 C.F.R. §§ 22.7, 22.621, 22.651.

[^4]: Letter from J. A. Hassell, Supervisor, Communication Services,
    Deer Park Chemical Plant, to D'wana R. Terry, Chief, Public Safety
    and Private Wireless Division, Wireless Telecommunications Bureau
    (dated Feb. 28, 2001 and filed Mar. 12, 2001) (Waiver Request).

[^5]: Wireless Telecommunications Bureau Seeks Comment on Request for
    Waiver by Shell Chemical Company to Obtain a License for Eleven
    Unassigned UHF Public Mobile Service Channel Pairs, *Public Notice*,
    16 FCC Rcd 10705 (WTB PSPWD 2001).

[^6]: Westel Communications, Inc. Comments, filed June 8, 2001 (Westel
    Comments).

[^7]: Shell Chemical Company Comments, filed June 12, 2001 (Shell
    Comments).

[^8]: Shell Chemical Company Reply Comments, filed June 20, 2001 (Shell
    Reply); Westel Comments at 3-4.

[^9]: Shell Reply at 2.

[^10]: 47 C.F.R. § 22.567. Shell's initial engineering analysis was
    performed using the criteria set forth in Section 90.187 of the
    Commission's Rules. 47 C.F.R. § 90.187. *See* Shell Application at
    Attachment 3.

[^11]: Westel Communications, Inc. Supplement to Comments at 2, filed
    July 2, 2001 (Westel Supplemental Comments). This submission was
    accompanied by a Motion for Leave to File Supplement to Comments in
    which Westel argues that it should be permitted to supplement its
    original comments in order to address Shell's significant revision
    to the original application. Westel Communications, Inc. Motion for
    Leave to File Supplement to Comments at 1-2, filed July 2, 2001. We
    grant Westel's motion because Shell modified its proposal when Shell
    filed its reply comments and because consideration of Westel's
    supplemental comments would allow us to make a decision based on a
    more complete and comprehensive record.

[^12]: Waiver Request at 2.

[^13]: *Id*.

[^14]: Shell Comments at 3-4.

[^15]: Waiver Request, Attachment 2.

[^16]: *Id.*

[^17]: Shell Reply at 1-2.

[^18]: Westel Supplemental Comments at 2.

[^19]: 47 C.F.R. §§ 1.925(b)(3).

[^20]: 47 C.F.R. § 22.567.

[^21]: *See Id*. *See also* Amendment of Parts 21, 89, 91 and 93 of the
    Rules to Reflect the Availability of Land Mobile Channels in the
    470-512 MHz Band in the 10 Largest Urbanized Areas of the United
    States, Docket No. 18261, *Second Report and Order*, 30 FCC 2d 221,
    234 ¶ 31 (1971).

[^22]: 47 C.F.R. § 22.567(a)(1).

[^23]: 47 C.F.R. § 22.567(e).

[^24]: 47 C.F.R. § 22.567(f)

[^25]: 47 C.F.R. § 22.567(e)(2), (f)(3).

[^26]: Shell Reply at 2.

[^27]: *Id.* at Attachment 1.

[^28]: *Id*. at § 22.567(f)(3).

[^29]: Shell Reply at 3, *citing* 47 C.F.R. § 22.567(f)(4).

[^30]: 47 C.F.R. § 22.567(f)(4).

[^31]: 47 C.F.R. §§ 22.567(f)(1)-(3).

[^32]: 47 C.F.R. § 22.567(f)(4).

[^33]: *Id*. (emphasis added).

[^34]: 47 C.F.R. § 1.925(b)(3)(ii).

[^35]: Shell Reply at 3-4.

[^36]: *See* License Communications Services, Inc., *Memorandum Opinion
    and Order*, 13 FCC Rcd 23781, 23791 ¶ 21 (1998).

[^37]: Shell Reply Comments at 4.

[^38]: We also note that Westel is authorized to expand its system by
    locating base transmitters anywhere within 50 miles, and mobile
    transmitters within 80 miles, of Houston, Texas. *See* 47 C.F.R. §§
    22.165, 22.651, 22.653, and 22.657. Although Shell's proposed site
    is located within a 50-mile radius of Houston, Texas, we do not
    address the issue of whether Westel's potential ability to expand
    its system would justify denying Shell's waiver request.