**DA 02-1827**

July 29, 2002

WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON

I2WAY CORPORATION'S REQUEST FOR DECLARATORY RULING REGARDING THE
TEN-CHANNEL LIMIT OF SECTION 90.187(e)

WT Docket No. 02-196

**Comment Date: August 28, 2002**

**Reply Comment Date: September 12, 2002**

On June 7, 2002, i2way Corporation (i2way) filed a Request for
Declaratory Ruling[^1] pursuant to Section 1.2 of the Commission's
rules,[^2] seeking clarification of the ten-channel limit set forth in
Section 90.187(e) of the Commission's rules.[^3] Certain i2way
applications were returned because either the applications did not
comply with Section 90.187(e) or the Division sought certification that
the applications complied with Section 90.187(e).[^4] i2way states that
it intends to provide nationwide dispatch service using both full power
and lower power frequencies.[^5] To accommodate its system, i2way's
applications seek Commission consent to use frequencies in the 150-174
MHz and 450-470 MHz bands.[^6]

In response to the return of these applications, i2way seeks
clarification in its Request for Declaratory Ruling regarding whether
the ten-channel limit "compels the return or dismissal of applications
in situations where a single applicant has filed multiple applications,
each requesting 10 channels, for different sites within the same general
service area."[^7] According to i2way, Section 90.187(e) only requires
that applicants request no more than ten channels in a single
application. i2way argues that Section 90.187(e) does not prohibit
applicants from simultaneously filing multiple ten-channel applications
for different sites within the same geographic area.[^8] i2way claims
that the ten-channel limit was adopted to prevent the "warehousing" of
spectrum and that the Commission adopted Section 90.187(e) prior to
modifying its rules to incorporate the concept of decentralized
trunking.[^9] i2way further argues that because licensees cannot
warehouse shared spectrum, the ten-channel limit was not intended to
apply to shared spectrum.[^10] i2way asserts that interpreting Section
90.187(e) to prohibit the filing of multiple applications within a
metropolitan area violates the notice and comment provisions of the
Administrative Procedure Act and expands Section 90.187(e) beyond its
logical limits.[^11] i2way claims that the Commission must provide clear
notice of its rules and clearly articulate the standard used as the
basis of dismissal.[^12] Finally, i2way states that the Commission's
current interpretation of Section 90.187(e) will not afford i2way
sufficient spectrum to make its proposed operations successful and will
adversely affect the public interest.[^13]

Pursuant to Section 1.1206(a)(3), declaratory ruling proceedings are
conducted as non-restricted, "permit-but-disclose" proceedings under the
Commission's *ex parte* rules.[^14] In this case, however, i2way's
Request for Declaratory Ruling relates directly to the processing of its
underlying applications, which initially are treated as restricted
proceedings.[^15] Under such circumstances, we typically would treat the
declaratory ruling proceeding as a restricted proceeding as well.
Because i2way's Request for Declaratory Ruling implicates broader policy
issues that are of interest to other users of shared spectrum, however,
we believe the more flexible "permit-but-disclose" regulations should
apply. Moreover, because of the interrelationship between i2way's
Request for Declaratory Ruling and i2way's underlying applications, we
believe that these proceedings should be governed by the same *ex parte*
provisions. Accordingly, pursuant to our discretion to modify the
applicable *ex parte* rules when the public interest so requires,[^16]
we announce that the permit-but-disclose *ex parte* procedures that are
applicable to nonrestricted proceedings under Section 1.1206 of the
Commission's rules[^17] will govern both i2way's underlying applications
and the subject Request for Declaratory Ruling.[^18] Persons making oral
*ex parte* presentations are reminded that memoranda summarizing the
presentations must contain summaries of the substance of the
presentations and not merely a listing of the subjects discussed. More
than a one or two sentence description of the views and arguments
presented is generally required.[^19] Other rules pertaining to *ex
parte* presentations in permit-but-disclose proceedings are set forth in
Section 1.1206(b) of the Commission's rules.[^20]

We invite comment on i2way's Request for Declaratory Ruling. All filings
concerning matters referenced in this Public Notice should refer to **WT
Docket No. 02-196** and reference i2way's Request for Declaratory
Ruling. Interested parties may file comments no later than August 28,
2002. Replies may be filed no later than September 12, 2002. All filings
should indicate in the caption that this matter is before the Wireless
Telecommunications Bureau, Commercial Wireless Division, Policy and
Rules Branch. Submissions in this matter may be filed electronically via
the Commission's Electronic Comment Filing System (ECFS) or by paper, as
explained below.

-   **If filed by ECFS**, comments shall be sent as an electronic file
    via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
    only one copy of an electronic submission must be filed. If multiple
    docket or rulemaking numbers appear in the caption of this
    proceeding, however, commenters must transmit one electronic copy of
    the comments to each docket or rulemaking number referenced in the
    caption. In completing the transmittal screen, commenters should
    include their full name, Postal Service mailing address, and the
    applicable docket or rulemaking number. Parties may also submit an
    electronic comment by Internet e-mail. To get filing instructions
    for e-mail comments, commenters should send an e-mail to
    ecfs@fcc.gov, and should include the following words in the body of
    the message, "get form \<your e-mail address\>." A sample form and
    directions will be sent in reply.

-   **If filed by paper**, an original and four copies of each filing
    must be filed by hand or messenger delivery, by commercial overnight
    courier, or by first-class or overnight U.S. Postal Service
    mail.[^21] The Commission's contractor, Vistronix, Inc., will
    receive hand-delivered or messenger-delivered paper filings for the
    Commission's Secretary at 236 Massachusetts Avenue, N.E., Suite 110,
    Washington, D.C. 20002.[^22] The filing hours at this location are
    8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
    with rubber bands or fasteners. Any envelopes must be disposed of
    before entering the building. Commercial overnight mail (other than
    U.S. Postal Service Express Mail and Priority Mail) must be sent to
    9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
    Service first-class mail, Express Mail, and Priority Mail should be
    addressed to 445 12th Street, SW, Washington, D.C. 20554. All
    filings must be addressed to the Commission's Secretary, Office of
    the Secretary, Federal Communications Commission.

One copy of each pleading must be delivered electronically, by e-mail or
facsimile, or if delivered as paper copy, by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (according to the procedures set forth above for
paper filings) to:\
(1) the Commission's duplicating contractor, Qualex International, at
qualexint@aol.com or (202) 863-2898 (facsimile); and (2) Milton Price,
Commercial Wireless Division, Wireless Telecommunications Bureau, at
mprice@fcc.gov or (202) 418-7447 (facsimile).

i2way's Request for Declaratory Ruling is available for public
inspection and copying in the FCC's Reference Center, 445 12^th^ Street,
SW, Room CY-A257, Washington, DC 20554. Copies of the request may also
be obtained from the Commission's duplicating contractor, Qualex
International, Portals II, 445 12th Street, SW, Room CY-B402,
Washington, DC, 20554, telephone (202) 863-2893, facsimile (202)
863-2898, or e-mail at <qualexint@aol.com>. The request is also
available electronically through ECFS, which may be accessed on the
Commission's Internet website at http://www.fcc.gov/e-file/ecfs.html by
entering the Docket Number of this proceeding, WT Docket No. 02-196.

For further information, contact Rose Crellin, Commercial Wireless
Division, Wireless Telecommunications Bureau, at (202) 418-0620.

By the Deputy Division Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau.

[^1]: i2way Corporation Request for Declaratory Ruling (June 7, 2002).
    Prior to the submission of the subject Request for Declaratory
    Ruling, i2way filed a number of individual, substantially similar
    requests for declaratory rulings, each arising from the return of
    i2way's applications based upon Section 90.187(e). These requests
    were each associated with an application and were filed
    electronically as attachments to i2way's applications via the
    Commission's Universal Licensing System. Pleadings associated with
    licensing matters may not be electronically filed at this time and
    instead must be filed manually. *See* Certain Actions Provided For
    in the Commission's Rules Are Not Yet Available For Electronic
    Filing via the Universal Licensing System (ULS) and Must Be Filed
    Manually, *Public Notice*, 16 FCC Rcd 12,886 (rel. June 25, 2001).
    Accordingly, i2way's prior requests are dismissed as improperly
    filed. We note, however, that the issues raised in i2way's prior
    requests are essentially the same issues raised in the Request for
    Declaratory Ruling at issue in this public notice.

[^2]: 47 C.F.R. § 1.2.

[^3]: Section 90.187(e) provides that "\[n\]o more than 10 channels for
    trunked operation in the Industrial/Business Pool may be applied for
    in a single application. Subsequent applications, limited to an
    additional 10 channels or fewer, must be accompanied by a
    certification . . . that all of the applicant's existing channels
    authorized for trunked operation have been constructed and placed in
    operation." 47 C.F.R. § 90.187(e).

[^4]: i2way provides file numbers for twenty-six applications and states
    that these file numbers "reflect i2way Corporation's best efforts to
    identify all of the applications that the Federal Communications
    Commission has found may be in violation of the Commission's
    interpretation of the 10-channel limit set forth in Section
    90.187(e)." Request for Declaratory Ruling at n.1.

[^5]: Request for Declaratory Ruling at 2, 10.

[^6]: Frequencies in these bands generally are available for shared use
    and are not assigned for the exclusive use of any licensee. *See* 47
    C.F.R. § 90.173(a).

[^7]: Request for Declaratory Ruling at 1-2.

[^8]: Request for Declaratory Ruling at 4-5.

[^9]: Request for Declaratory Ruling at 6. In a "centralized trunked
    system," the base station controller provides dynamic channel
    assignments by automatically searching all channels in the system
    for and assigning to a user an open channel within that system. In a
    "decentralized trunked system," which is also a system of dynamic
    channel assignment, the system continually monitors the assigned
    channels for activity both within the trunked system and outside the
    trunked system, and transmits only when an open channel is found.
    *See* Wireless Telecommunications Bureau Establishes a New Station
    Class Code in Connection with Licensing Trunked Radio Systems
    Operating between 150-512 MHz, *Public Notice*, 16 FCC Rcd 7515, n.1
    (2001). In July, 2000, the Commission released an Order revising the
    definition of trunked systems in Section 90.7 so that Section 90.187
    now governs all trunking systems (centralized, decentralized and
    hybrid) in the bands between 150 MHz and 512 MHz. *See* In the
    Matter of 1998 Biennial Regulatory Review \-- 47 C.F.R. Part 90 \--
    Private Land Mobile Radio Services, *Report and Order and Further
    Notice of Proposed Rule Making*, WT Docket No. 98-182, 15 FCC Rcd
    16,673 (2000).

[^10]: Request for Declaratory Ruling at 5-7.

[^11]: Request for Declaratory Ruling at 7-8.

[^12]: Request for Declaratory Ruling at 8.

[^13]: Request for Declaratory Ruling at 8-9.

[^14]: 47 C.F.R. § 1.1206(a)(3).

[^15]: Pursuant to Section 1.1208, applications for authority under
    Title III of the Communications Act are treated as restricted
    proceedings. 47 C.F.R. § 1.1208.

[^16]: *See* 47 C.F.R. §§ 1.1200(a), 1.1208, n.2.

[^17]: 47 C.F.R. § 1.1206.

[^18]: We note that i2way currently has a number of applications pending
    for CMRS authorizations, not all of which are among the twenty-six
    file numbers listed in the caption of i2way's Request for
    Declaratory Ruling. In the interest of administrative efficiency and
    in minimizing the potential for any confusion among interested
    parties, and because i2way's applications implicate similar issues,
    we uniformly apply the permit-but-disclose *ex parte* standard to
    all of i2way's current pending applications.

[^19]: *See* 47 C.F.R. § 1.1206(b).

[^20]: 47 C.F.R. § 1.1206(b).

[^21]: Please note that we continue to experience delays in receiving
    U.S. Postal Service mail.

[^22]: *See* FCC Announces a New Filing Location for Paper Documents and
    a New Fax Number for General Correspondence, *Public Notice,* 16 FCC
    Rcd 22,165 (2001).