**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. 0003460698          |
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| MOBILE RELAY ASSOCIATES          | ** |                              |
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| Request for Waiver of Section    | *  |                              |
| 90.307 of the Commission's Rules | *) |                              |
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**ORDER**

**Adopted: April 17, 2009 Released: April 20, 2009**

By the Deputy Chief, Mobility Division, Wireless Telecommunications
Bureau:

1.  *Introduction.* On June 3, 2008, Mobile Relay Associates ("MRA")
    filed the above-captioned application for authority to operate a new
    Industrial/Business Pool station on frequency pair 471/474.3125 MHz
    with base stations near San Juan Capistrano and Roosevelt,
    California, and associated mobile units. MRA also requests a waiver
    of Section 90.307 of the Commission's Rules regarding distance
    separation from protected television stations,[^1] with respect to
    the proposed San Juan Capistrano location.[^2] For the reasons set
    forth below, we deny the waiver request and will dismiss the
    application with respect to the proposed San Juan Capistrano
    location.

2.  *Background.* Section 90.307(d) requires a minimum distance of
    ninety miles between a land mobile base station that has associated
    mobile units and a protected adjacent-channel television
    station.[^3] MRA's proposed San Juan Capistrano site, however, is
    approximately seventy-two miles from adjacent-channel Channel 15[^4]
    Television Station KPBS, San Diego, California. MRA requests a
    waiver of that requirement on the grounds that Station KPBS will
    cease operating on Channel 15 after the upcoming digital television
    (DTV) transition.[^5] MRA states that its customers require service
    in the Roosevelt and San Juan Capistrano areas, and that it would
    construct the facilities promptly but not commence operations at San
    Juan Capistrano until after the DTV transition.[^6]

3.  *Discussion.* In an *Order* addressing the spectrum to be vacated by
    Station KPBS, the Commission's Public Safety and Homeland Security
    Bureau (PSHSB) concluded that granting a waiver to allow the
    applicant to construct facilities that would commence operating on
    the spectrum after the DTV transition was appropriate where the
    applicant submitted its applications long before the DTV transition
    date, and there was no other suitable spectrum available.[^7] PSHSB
    emphasized that its decision was based on unique circumstances, and
    that it would not ordinarily grant such requests, particularly if
    they were filed closer to the DTV transition date.[^8]

4.  We agree with this standard, and conclude that MRA has not met it.
    MRA filed its application approximately eight months before the
    then-effective February 17, 2009 DTV transition date. Moreover, MRA
    does not assert that there is no other spectrum available to meet
    its (unidentified) customers' needs, or that such needs must be met
    immediately upon the DTV transition date, or that these customers
    have no other options. MRA does not present any persuasive reasons
    why it cannot wait until after the DTV transition to apply for the
    San Juan Capistrano facility. Consequently, it has not demonstrated
    that the public interest requires us to assign this spectrum to it
    sooner. Rather, we believe that the public interest is better served
    by a more orderly and equitable assignment process. We therefore
    deny the waiver request.[^9] MRA can reapply for the channel at San
    Juan Capistrano on the same basis as any other prospective applicant
    after the spectrum becomes available for assignment consistent with
    our rules.

5.  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
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, the
    request for waiver associated with application FCC File No.
    0003460698 filed by Mobile Relay Associates on June 3, 2008 IS
    DENIED.

6.  IT IS FURTHER ORDERED that application FCC File No. 0003460698 SHALL
    BE DISMISSED with respect to locations 2, 5, and 6; and otherwise
    PROCESSED in accordance with the Commission's Rules.

7.  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
>
> Scot Stone
>
> Deputy Chief, Mobility Division
>
> Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 90.307.

[^2]: *See* Request for Waiver of Section 90.307 (filed June 3, 2008)
    ("Waiver Request"). The proposed Roosevelt location meets the
    criteria of Section 90.307.

[^3]: *See* 47 C.F.R. § 90.307(d).

[^4]: Television channel 15 occupies the 476-482 MHz band.

[^5]: KPBS will complete the transition on June 12, 2009. *See* FCC
    Releases Dates on Which Stations Intend to Terminate Analog
    Television Service, *Public Notice*, 24 FCC Rcd 3066 (MB 2009). Its
    request to continue to use Channel 15 as an "analog nightlight" was
    denied because the Commission concluded that such operation would
    conflict with co-channel land mobile operations authorized in County
    of Los Angeles, California, *Order*, 23 FCC Rcd 18389 (PSHSB 2008)
    (*Los Angeles Order*). *See* Implementation of the DTV Delay Act,
    *Second Report and Order and Notice of Proposed Rulemaking*, MB
    Docket No. 09-17, 24 FCC Rcd 2526, 2544 ¶ 44 (2009).

[^6]: *See* Waiver Request at 1, 2. MRA also proposes to restrict its
    mobile operations to at least sixty miles from the site of Station
    KPBS, as required by the Commission's rules. *See* Demonstration of
    Compliance with Section 90.307(d) (filed Oct. 16, 2008). (As noted
    above, Section 90.307(d) requires ninety miles separation between a
    land mobile base station that has associated mobile units and a
    protected adjacent-channel television station. In addition, Section
    90.305(b) of the Commission's Rules requires that mobile units
    operate within thirty miles of their associated base stations. *See*
    47 C.F.R. § 90.305(b). In combination, then, the rules require a
    sixty-mile separation between mobile units and a protected
    adjacent-channel television station.)

[^7]: *See Los Angeles Order*, 23 FCC Rcd at 18401 ¶ 22, 18408 ¶ 35.

[^8]: *See id.* at 18408 ¶ 35.

[^9]: Given our rejection of the waiver request, we need not address the
    arguments in the opposition filed by National Science and Technology
    Network, Inc. (NSTN), and the responsive pleadings thereto. *See*
    Letter dated June 23, 2008 from Alan M. Lurya, counsel to NSTN, to
    Scot Stone, Deputy Chief, Mobility Division, Wireless
    Telecommunications Bureau; Opposition to Informal Petition to
    Dismiss or Deny (filed July 1, 2008); Letter dated July 3, 2008 from
    Alan M. Lurya, counsel to NSTN, to Scot Stone, Deputy Chief,
    Mobility Division, Wireless Telecommunications Bureau.