**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Nos. 0000539507,        |
|                                  | *) | 0000530603 and 0000608115    |
| Thomas K. Kurian,                | ** |                              |
|                                  |    |                              |
| Renewal and Modification of 800  | *  |                              |
| MHz Station WNXN838              | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

> **Adopted: May 19, 2004 Released: May 28, 2004**

By the Commission:

# Introduction

1.  On April 14, 2003, Nextel Communications, Inc. (Nextel) filed an
    Application for Review of the *Memorandum Opinion and Order and
    Proposed Order of Modification* by the Policy and Rules Branch,
    Commercial Wireless Division,[^1] Wireless Telecommunications Bureau
    in the above-captioned proceeding.[^2] In that order, the Policy and
    Rules Branch denied Nextel's request to rescind the renewal of
    Station WNXN838, licensed to Thomas K. Kurian (Kurian), and proposed
    to modify certain parameters of Station WNXN838. Nextel requests
    that we rescind the renewal of Kurian's license or, in the
    alternative, modify Kurian's license to limit operations to private,
    mobile-only Business Radio Service on a secondary basis. For the
    reasons stated below, we grant Nextel's request to limit Kurian to
    mobile-only operations and otherwise deny Nextel's Application for
    Review.

# background

2.  On April 11, 2001, the Licensing and Technical Analysis Branch of
    the Commercial Wireless Division approved the assignment of Station
    WNXN838 from CB Display Service to Kurian.[^3] At the time of
    assignment to Kurian, Station WNXN838 was classified as a
    conventional Business Radio Service (GB) license, and was authorized
    to provide mobile-only service on a secondary, non-interference
    basis with 50 mobile units, at a maximum transmitter output power of
    15 watts, and a maximum transmitter ERP of 30 watts. The station was
    authorized to operate within a 113 km (70 miles) radius of Las
    Vegas, Nevada on five General Category paired frequencies: 851.7625,
    852.2375, 852.8375, 853.3625, and 854.5875 MHz.[^4] Nextel won
    numerous 800 MHz SMR Economic Area (EA) licenses in Auction No.
    34,[^5] including EA 153 (Las Vegas, NV-AZ-UT) Blocks DD, E, EE, and
    FF, which contain the five frequencies authorized to Station
    WNXN838.

3.  On July 7, 2001, Kurian filed an application to modify Station
    WNXN838 (file no. 0000530603) in four respects: (1) to change the
    radio service from conventional Business Radio Service (GB) to
    commercial Specialized Mobile Radio (SMR) Service (GX); (2) to
    increase the number of mobile units from 50 to 100; (3) to increase
    the maximum transmitter output power for the mobile units from 15 to
    30 watts, with no change in the maximum transmitter ERP of 30 watts;
    and (4) to add a fixed base station on a primary basis with a
    maximum transmitter output power of 30 watts and a maximum
    transmitter ERP of 30 watts. The Licensing and Technical Analysis
    Branch granted the application on August 27, 2001.[^6] On September
    25, 2001, Nextel filed a Petition for Reconsideration to set aside
    the modification of license. In the *Kurian Order*, the Policy and
    Rules Branch granted the relief requested by Nextel, in part, by
    requiring that all operations on frequencies 851.7625, 852.2375,
    852.8375, 853.3625, and 854.5875 MHz be conducted on a secondary,
    non-interference basis.[^7] Kurian did not seek review of that
    decision.

4.  On July 26, 2001, Kurian filed an application to renew Station
    WNXN838 (file No. 0000539507), which the Licensing and Technical
    Analysis Branch granted on July 27, 2001. In the *Kurian Order*, the
    Policy and Rules Branch rejected Nextel's request to set aside the
    renewal of Station WNXN838, finding that Nextel had provided no
    evidence that Kurian\'s secondary operations had or would interfere
    with Nextel's operations.[^8]

5.  On September 27, 2001, Kurian filed an application to modify Station
    WNXN838 (file no. 0000608115) to add a second fixed base station on
    a primary basis with a maximum transmitter output power of ten watts
    and a maximum transmitter ERP of five watts, and to increase the
    maximum transmitter output power and ERP of mobile units from 30
    watts to 50 watts. The Licensing and Technical Analysis Branch
    granted the application on October 25, 2001.[^9] In the *Kurian
    Order*, the Policy and Rules Branch proposed, on its own motion, to
    modify Kurian's license pursuant to section 316 of the
    Communications Act, as amended (Act),[^10] by requiring that all
    operations be conducted on a secondary basis and by reducing the
    maximum authorized transmitter output power and ERP of mobile units
    from 50 watts to 30 watts on frequencies 851.7625, 852.2375,
    852.8375, 853.3625, and 854.5875 MHz.[^11] Kurian did not protest
    the proposed modifications.

#  DISCUsSION

6.  In its Application for Review, Nextel argues that we should rescind
    the renewal of Kurian's license. Alternatively, Nextel argues that
    Kurian's license should be modified to (1) change his radio service
    from commercial SMR Service to conventional Business Radio
    Service, (2) decrease the number of mobile units from 100 to 50,
    and (3) eliminate Kurian's fixed base stations.

7.  [Renewal of Station WNXN838]{.underline}. We deny Nextel's request
    to rescind the renewal of Kurian's license. Nextel argues that the
    Commission's *Dickinson* decision provides that secondary operations
    are impermissible within 70 miles of a co-channel primary
    station.[^12] In *Dickinson*, the Commission observed that "a
    secondary station [may]{.underline} be forced to terminate
    operations if a co-channel licensee should locate within 70 miles of
    the secondary site."[^13] The Commission did not state or imply that
    a secondary station must terminate operations without exception when
    a co-channel licensee locates within 70 miles. Rather, we may
    require a secondary station to terminate operations should a
    co-channel licensee locate a primary site within seventy miles of
    the secondary station, [and the secondary station causes
    interference to the primary station]{.underline}.[^14] Nextel has
    provided no evidence that Kurian's secondary operations would
    interfere with its own and, thus, there is no basis in the record to
    rescind the renewal of Kurian's license on a secondary basis.[^15]
    Kurian, however, erroneously asserts that Nextel "assumed whatever
    risk that the secondary operations of Station WNXN838 might pose to
    its intended primary operations."[^16] We remind Kurian that, as a
    holder of secondary operating authority, his operations must not
    cause interference to Nextel's primary operations and are not
    protected from interference from Nextel's primary operations.[^17]

8.  [Commercial Status]{.underline}. In the *Kurian Order*, the Policy
    and Rules Branch upheld the grant of Kurian's modification
    application (file no. 0000530603) to the extent that it changed the
    authorized radio service from conventional Business Radio Service
    (GB) to commercial SMR Service (GX), noting that there is no
    Commission rule, policy or precedent that would prohibit GX
    operations on a secondary, non-interference basis.[^18] Nextel
    argues that granting the change in radio service status is
    equivalent to granting an application for a new General Category
    authorization and thus violates the freeze on granting new General
    Category frequencies.[^19] The freeze was intended to preserve the
    800 MHz licensing landscape.[^20] Unlike the Licensing and Technical
    Branch's erroneous grant of primary operating authority to
    Kurian,[^21] a change in Kurian's authorized radio service does not
    alter the 800 MHz licensing landscape. Whether Kurian conducts
    secondary operations as a commercial SMR provider or for his own
    private internal operations will not affect Nextel's authorized use
    of the five frequencies at issue. In either case, Kurian's secondary
    operations may not interfere with Nextel's primary use of the five
    channels and Kurian must accept interference from Nextel's
    operations. We therefore deny Nextel's request to modify Kurian's
    radio service.

9.  [Mobile Units]{.underline}. In the *Kurian Order*, the Policy and
    Rules Branch denied Nextel's request that it reverse the grant of
    Kurian's modification application (file no. 0000530603) to the
    extent that it increased the number of authorized mobile units from
    50 to 100. The Branch reasoned that because it set aside the grant
    of primary operating authority to Kurian, the number of mobile units
    is immaterial.[^22] Nextel argues that granting additional mobile
    units to Kurian violates the freeze on granting new General Category
    frequencies.[^23] An increase in the number of authorized mobile
    units, however, does not alter the 800 MHz licensing landscape
    because it is not a new application for a general category
    frequency.  Rather, it is a permissible modification of an existing
    license.  We also note that Nextel is not required to afford Kurian
    any protection to the additional mobile units because of Kurian's
    secondary status.  We therefore deny Nextel's request to reduce the
    number of mobile units authorized to Kurian.

10. [Fixed Base Stations]{.underline}. In the *Kurian Order*, the Policy
    and Rules Branch upheld the grant of two fixed base stations (on a
    secondary basis) to Kurian. Nextel argues that grant of the fixed
    stations to Kurian is outside the narrow exception to the General
    Category freeze set forth in section 90.693(b) of our rules.[^24]
    Section 90.693 permits incumbent licensees "to add, remove or modify
    transmitter sites within their original 22 dBuV/m field strength
    contour without prior notification to the Commission so long as
    their original 22 dBuV/m field strength contour is not expanded and
    the station complies with the Commission\'s short-spacing criteria
    in §§ 90.621(b)(4) through 90.621(b)(6)."[^25] Nextel argues that
    section 90.693 only applies to existing incumbent primary fixed base
    station licenses, and that no 22 dBuV/m field strength contour could
    be calculated based on Kurian's mobile-only license.[^26] The
    Commission intended the exception to the General Category freeze
    provided for by section 90.693(b) to be limited to fixed stations
    and Kurian cites no precedent to support his claim that section
    90.693(b) permits the addition of fixed sites to a mobile-only
    authorization.[^27] Section 90.693(b) requires that a contour be
    calculated "along each radial."[^28] Kurian's mobile-only license
    had no fixed site, and thus no radials from which to calculate a 22
    dBuV/m field strength contour. Accordingly, we find that the Policy
    and Rules Branch erred in upholding the grant of two fixed sites to
    secondary Station WNXN838. Nextel's Application for Review (like its
    petition for reconsideration below) contests the grant of a fixed
    site by file no. 0000530603. We therefore direct Kurian to cease
    operations at that site within 30 days of the release date of this
    order. Nextel did not, however, contest the fixed site added by
    application file no. 0000608115. We therefore, on our own motion,
    propose to eliminate the fixed site licensed to Station WNXN838 by
    file no. 0000608115.[^29]

11. Pursuant to Section 1.87(a) of the Commission\'s Rules,[^30] we will
    not issue a modification order until Kurian has received notice of
    our proposed action and has had an opportunity to interpose a
    protest. To protest the proposed modification, Kurian must, within
    30 days of the release date of this order, submit a written
    statement with sufficient evidence to show that the modification
    would not be in the public interest. The protest must be filed with
    the Office of the Secretary, Federal Communications Commission, 445
    Twelfth Street, S.W., Room TW-A325, Washington, D.C. 20554.[^31] If
    no protest is filed, Kurian will be deemed to have waived his right
    to protest the modification and will be deemed to have consented to
    the proposed modification.[^32]

12. [Modification]{.underline}. As noted above, in the *Kurian Order*,
    the Policy and Rules Branch proposed to modify Kurian's license
    pursuant to section 316 of the Act,[^33] by requiring that all
    operations be conducted on a secondary basis and by reducing the
    maximum authorized transmitter output power and ERP of mobile units
    from 50 watts to 30 watts on frequencies 851.7625, 852.2375,
    852.8375, 853.3625, and 854.5875 MHz (file no. 0000608115).[^34]
    Kurian did not protest the proposed modifications and, therefore, is
    deemed to have consented to the modifications.[^35] We therefore
    modify Kurian's license accordingly.[^36]

# Ordering clauses

13. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 405, and
    Section 1.115 of the Commission's rules, 47 C.F.R. § 1.115, the
    Application for Review filed by Nextel Communications, Inc. on April
    14, 2003 is GRANTED to the extent specified above and is otherwise
    DENIED.

14. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 405 of the
    Communications Act, as amended, 47 U.S.C. §§ 154(i), 405 and Section
    1.115 of the Commission's rules, 47 C.F.R. § 1.115, within 30 days
    of the release date of this order, Thomas K. Kurian, licensee of
    Station WNXN838, shall cease all operations from the fixed site
    located at Latitude 36-7-12.9 (N), Longitude 115-10-20.0 (W) (file
    no. 0000530603).

15. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 316(a) of
    the Communications Act, as amended, 47 U.S.C. §§ 154(i), 316(a) and
    Section 1.87 of the Commission's rules, 47 C.F.R. § 1.87, the
    license for Station WNXN838, licensed to Thomas K. Kurian, IS
    MODIFIED, by reducing the maximum authorized transmitter output
    power and ERP of mobile units from 50 watts to 30 watts on
    frequencies 851.7625, 852.2375, 852.8375, 853.3625, and 854.5875 MHz
    (file no. 0000608115).

16. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 316(a) of
    the Communications Act, as amended, 47 U.S.C. §§ 154(i), 316(a) and
    Section 1.87 of the Commission's rules, 47 C.F.R. § 1.87, the
    license for Station WNXN838, licensed to Thomas K. Kurian, IS
    MODIFIED, by requiring that all operations on frequencies 851.7625,
    852.2375, 852.8375, 853.3625, and 854.5875 MHz be conducted on a
    secondary, non-interference basis (file no. 0000608115).

17. IT IS PROPOSED that, pursuant to Sections 4(i) and 316(a) of the
    Communications Act, as amended, 47 U.S.C. §§ 154(i), 316(a) and
    Section 1.87 of the Commission's rules, 47 C.F.R. § 1.87, the
    license for Station WNXN838, licensed to Thomas K. Kurian, BE
    MODIFIED by eliminating the fixed site, Latitude 36-10-45.3 (N),
    Longitude 114-59-51.3 (W) (file no. 0000608115).

18. IT IS ORDERED that, pursuant to Section 316 of the Communications
    Act of 1934, as amended, 47 U.S.C. § 316, this proposed modification
    shall become final and effective 30 days after release of this order
    if no protests are filed within that period. The Wireless
    Telecommunications Bureau is delegated authority to dispose of any
    such protests in accord with Section 316(a).

19. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall
    be sent by certified mail, return receipt requested, to Thomas K.
    Kurian, 4019 S. Industrial Rd., Las Vegas, Nevada 89103, and to
    counsel for Thomas K. Kurian, Dennis C. Brown, Esq., 126/B North
    Bedford Street, Arlington, Virginia 22201.

FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

[^1]: In November, 2003, responsibilities of the Commercial Wireless
    Division were transferred to the new Mobility Division and the new
    Spectrum and Competition Policy Division of the Wireless
    Telecommunications Bureau.

[^2]: In The Matter of Thomas K. Kurian**,** Renewal and Modification of
    800 MHz Station WNXN838, File Nos. 0000539507, 0000530603 and
    0000608115, *Memorandum Opinion and Order and Proposed Order of
    Modification* 18 FCC Rcd 4576 (WTB, CWD 2003) (*Kurian Order*).
    Kurian filed an Opposition to Nextel's Application for Review (AFR)
    on April 29, 2003. Nextel filed a Reply on May 9, 2003.

[^3]: File No. 0000391339. *See* "Wireless Telecommunications Bureau
    Assignment of Authorization and Transfer of Control Applications
    Action," Report Number: 829, *Public Notice*, 2001 WL 357034
    (F.C.C.) (Apr. 11, 2001).

[^4]: The General Category channels consist of Channel Nos. 1-150
    (806-809.750/851-854.750 MHz) and may be used for either
    conventional or trunked operations. *See* 47 C.F.R. § 90.615.

[^5]: The SMR General Category auction (Auction No. 34) concluded on
    September 1, 2000, after 14 winning bidders purchased 1030 800-MHz
    General Category licenses. *See* \"800 MHz Specialized Mobile Radio
    (SMR) Service General Category (851- 854 MHz) and Upper Band
    (861-865 MHz) Auction Closes; Winning Bidders Announced,\" *Public
    Notice*, 15 FCC Rcd 17162 (WTB 2000).

[^6]: *See* "Wireless Telecommunications Bureau Site-By-Site Action,"
    Report Number: 957, *Public Notice*, 2001 WL 1006866 (F.C.C.) (Sept.
    5, 2001).

[^7]: *Kurian Order*, 18 FCC Rcd at 4580 ¶ 13.

[^8]: *Id.* at 4578 ¶ 9.

[^9]: *See* "Wireless Telecommunications Bureau Site-By-Site Action,"
    Report Number: 1008, *Public Notice*, 2001 WL 1335043 (F.C.C.) (Oct.
    31, 2001).

[^10]: 47 U.S.C. § 316.

[^11]: *Kurian Order*, 18 FCC Rcd at 4582 ¶ 21, and at 4583 ¶ 29.

[^12]: Nextel AFR at 8, citing Roger Dickinson D/B/A Portable Walkie
    Talkies To Go, *Memorandum Opinion and Order*, 15 FCC Rcd 4845, 4850
    ¶ 15 (2000) (*Dickinson*).

[^13]: *Id.* (emphasis added).

[^14]: *See, e.g.,* In the Matter of Charles T. Crawford, *et al.*,
    *Order*, 17 FCC Rcd 2014, 2017 ¶ 7 (2001). *See* 47 C.F.R. § 90.7
    (Secondary operations "may not cause interference to operations
    authorized on a primary basis and . . . are not protected from
    interference from those primary operations.").

[^15]: Nextel does note that Kurian complained to the Commission of
    interference caused by Nextel. However at that time, Kurian had been
    operating pursuant to the erroneous grant of primary operating
    authority and thus was co-primary with Nextel. *See* Nextel AFR at
    8.

[^16]: Opposition at 6.

[^17]: *See* 47 C.F.R. § 90.7. The Policy and Rules Branch found that
    Nextel had provided no evidence that Kurian\'s secondary operations
    have or would interfere with Nextel's operations, and that "absent
    such evidence, there is no basis in the record to set aside the
    renewal of Station WNXN838, as a [secondary]{.underline}
    authorization." *Kurian Order*, 18 FCC Rcd at 4578 ¶ 9.

[^18]: *Kurian Order*, 18 FCC Rcd at 4581 ¶ 16.

[^19]: Nextel AFR at 8; Nextel Reply at 6.

[^20]: In the Matter of Licensing of General Category Frequencies in the
    806-809.750/851-854.750 MHz Bands, *Order*, 10 FCC Rcd 13190 ¶ 3
    (WTB 1995).

[^21]: In the *Kurian Order*, the Policy and Rules Branch found that
    conversion of Kurian's secondary authorization to primary status
    abrogated the right of primary co-channel licensees to be free from
    harmful interference and violated the General Category freeze.
    *Kurian Order*, 18 FCC Rcd at 4579 ¶ 12 & 4582 ¶ 21.

[^22]: *Id.*, 18 FCC Rcd at 4580 ¶ 14.

[^23]: Nextel Reply at 6.

[^24]: Nextel AFR at 6-7; Nextel Reply at 2-5.

[^25]: 47 C.F.R. § 90.693. Section 90.621(b)(4), in turn, provides that
    a licensee may locate a station 113 km (70 miles) to 88 km (55
    miles) from a co-channel licensee, provided that it complies with
    transmitter effective radiated power (ERP) and antenna height
    limitations set forth in the rule, and that it may locate a station
    less than 55 miles from a co-channel licensee, provided that it
    obtains a Commission waiver, notifies all affected co-channel
    licensees, and submits an engineering analysis showing that
    co-channel licensees will be protected from interference. 47 C.F.R.
    § 90.621(b)(4)

[^26]: Nextel AFR at 6-7; Nextel Reply at 3.

[^27]: Kurian Opposition at 2. In adopting this narrow exception, the
    Commission explained that it would enable incumbent licensees "to
    add new transmitters in their existing service area, . . . to fill
    in 'dead spots' in coverage or to reconfigure their systems to
    increase capacity within their service area, so long as their 22 dBu
    interference contours are not expanded." *See* Amendment of Part 90
    of the Commission\'s Rules to Facilitate Future Development of SMR
    Systems in the 800 MHz Frequency Band, *First Report and Order
    Eighth Report and Order, and Second Further Notice of Proposed Rule
    Making*, 11 FCC Rcd 1463, 1514 ¶ 86 (1995).

[^28]: 47 C.F.R. § 90.693(b).

[^29]: We propose to modify Kurian's license, rather than remanding this
    task to the Bureau, for administrative efficiency. *See, e.g.*, In
    the Matter of License Communications Services, Inc., Application
    File No. 415669, etc., *Memorandum Opinion and Order*, 13 FCC Rcd
    23781 (1998) (Commission proposal to modify wireless license).

[^30]: 47 C.F.R. § 1.87(a).

[^31]: This address is proper only for protests submitted by U.S. mail.
    For hand-delivered or messenger-delivered paper filings, the proper
    address is 236 Massachusetts Ave., N.E., Suite 110, Washington, D.C.
    20002. For documents sent by overnight delivery service other than
    United States Postal Service Express Mail and Priority Mail, the
    proper address is 9300 East Hampton Dr., Capitol Heights, MD 20743.
    For further information, contact the Office of the Secretary at
    (202) 418-0300 or mdortch@fcc.gov.

[^32]: 47 C.F.R. § 1.87(g) & (h).

[^33]: 47 U.S.C. § 316.

[^34]: *Kurian Order*, 18 FCC Rcd at 4582 ¶ 21, and at 4583 ¶ 29.

[^35]: *Id.* at 4582 ¶ 22.

[^36]: The Commission is considering proposals for abating interference
    to 800 MHz public safety systems, including possible modification of
    the 800 MHz land mobile band. *See* Improving Public Safety
    Communications in the 800 MHz Band; Consolidating the 900 MHz
    Industrial/Land Transportation and Business Pool Channels, WT Docket
    No. 02-55, *Notice of Proposed Rulemaking*, 17 FCC Rcd 4873 (2002),
    *modified by Erratum*, 17 FCC Rcd 7169 (PSPWD 2002). If the
    Commission was to adopt a modified 800 MHz band plan in that
    proceeding, and it requires change of any frequency for Station
    WNXN838, adoption of the modified band plan would not affect our
    findings in this Memorandum Opinion and Order, including, without
    limitation, our affirmation of the secondary status of Kurian's
    authorization.