**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of )

)

FUTURE COMM ) File Nos. 0000726942, 0000584833,

) 0000639642, 0000640852,

For Authority to Operate Private Land Mobile Stations ) 0000597305,
0000711730

at Various Locations in California )

)

WHEELCARE TRANSPORTATION -- Station WPVC521 ) File No. 0000873738

DUNN'S SAND -- Station WPVC522 ) File No. 0000873739

JACK GRIGG'S INC -- Station WPVC777 ) File No. 0000873740

YELLOW CAB -- Station WPVC524 ) File No. 0000873741

JESSE VELASQUEZ -- Station WPVC525 ) File No. 0000873742

GIST FARMS INC. -- Station WPVC519 ) File No. 0000873746

PHILLIP DEHAAN -- Station WPVC533 ) File No. 0000873748

SLOVER BROTHERS TRUCKING INC. -- Station WPVC538 ) File No. 0000873749

REPLOGLE FARMS -- Station WPVC539 ) File No. 0000873751

GIST TRUCKING -- Station WPVC540 ) File No. 0000873752

SIERRA LIFESTAR AMBULANCE -- Station WPVC542 ) File No. 0000873755

CHUCK BROWN -- Station WPVC543 ) File No. 0000873757

WINDMILL RANCH -- Station WPVC544 ) File No. 0000873758

SIMONICH FARMS -- Station WPVC546 ) File No. 0000873759

LANGE PLUMBING SUPPLY INC. -- Station WPVC547 ) File No. 0000873760

CAL RED PRODUCTS -- Station WPVC549 ) File No. 0000873761

SHOO FLY SPRAYING -- Station WPVC551 ) File No. 0000873762

)

For Authority to Operate Private Land Mobile Stations )

on Frequency 854.9125 MHz at Visalia, California )

**MEMORANDUM OPINION AND ORDER AND ORDER ON RECONSIDERATION**

**Adopted:** March 19, 2003 **Released:** March 21, 2003

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

**I. INTRODUCTION**

1\. On March 12, 2002, William Bolthouse Farms, Inc. ("Bolthouse"),
George S. Gillam ("Gillam"), and Felder Communications ("Felder")
(collectively, "Complainants") filed an informal complaint requesting
that the Wireless Telecommunications Bureau dismiss six pending
applications filed by Future Comm, and direct Future Comm to cease its
unlicensed operations at the site of one of its proposed stations.[^1]
On July 18, 2002, Bolthouse and Felder (collectively, "Petitioners")
filed a petition for reconsideration[^2] of the grants of licenses to
Wheelcare Transportation Station, Dunn's Sand, Jack Grigg's Inc., Yellow
Cab, Jesse Velasquez, Gist Farms Inc., Phillip Dehaan, Slover Brothers
Trucking Inc., Replogle Farms, Gist Trucking, Sierra Lifestar Ambulance,
Chuck Brown, Windmill Ranch, Simonich Farms, Lange Plumbing Supply Inc.,
Cal Red Products, and Shoo Fly Spraying (collectively, "Seventeen
Licensees"). For the reasons stated below, we grant the Informal
Complaint in part and dismiss it in part, and we grant the Petition.

**II. BACKGROUND**

2\. Bolthouse is the licensee of conventional Industrial/Land
Transportation (I/LT) Station WNPP607, Kern County, California. Gillam
is the licensee of conventional I/LT Station WPRL465, Kern County,
California. Felder is the licensee of conventional I/LT Station WQA519,
Fresno County, California. All three stations operate on frequency pair
809/854.9125 MHz.

3\. *Informal Complaint.* Between September 2001 and January 2002,
Future Comm filed six applications for authorization to construct and
operate trunked 800 MHz I/LT stations at locations in Fresno, Kings,
Mariposa, Monterey, San Luis Obispo, Sutter, and Tulare Counties,
California.[^3] One application, FCC File No. 0000726942, was granted on
May 8, 2002 under Call Sign WPUI236. The other applications were
dismissed between December 2001 and February 2003 because Future Comm
had not demonstrated that it was eligible for the number and category of
channels requested.[^4]

4\. On March 12, 2002, Complainants filed the Informal Complaint
asserting that they were receiving harmful interference on frequency
854.9125 MHz from an unlicensed radio facility operated by Future Comm
at the location of the station proposed in Future Comm's application
File No. 0000597305.[^5] They note that no license has been issued for
the facility,[^6] and request an order that Future Comm cease all
construction and operation of the facility until Future Comm is
authorized to operate.[^7] Complainants also question whether any of
Future Comm's applications should be granted, in light of Future Comm's
apparent unwillingness to avoid creating interference.[^8] Complainants
also express doubt about Future Comm's eligibility for the frequencies
it requested.[^9]

5\. *Petition for Reconsideration.* On May 2, 2002, the Seventeen
Licensees filed applications to use, *inter alia*, frequency 854.9125
MHz on a trunked community repeater at Potato Hill, Tulare County,
California. The applications were granted in June 2002.[^10]

6\. On July 18, 2002, Petitioners sought reconsideration of the grants
on the grounds that they will receive significant harmful interference
from the Seventeen Licensees' stations.[^11] Petitioners also contend
that Future Comm is the real party in interest with respect to the
licenses, and reassert the allegations in the Informal Complaint
regarding Future Comm's disregard for its obligation to avoid causing
interference to other licensees.[^12] Petitioners seek cancellation of
the Seventeen Licensees' authorization to use frequency 854.9125
MHz.[^13]

**III. DISCUSSION**

7\. *Informal Complaint.* As noted above, application File No.
0000726942 was granted on May 8, 2002, but the Informal Complaint
against the application was not filed until May 12, 2002. Section 1.106
of the Commission's Rules provides, in relevant part, that a petition
for reconsideration shall be filed with the Commission's Secretary
within thirty days from the date of public notice of the final
Commission action, and served upon parties to the proceeding.[^14]
Although the Informal Complaint is not labeled as a petition for
reconsideration, it complies with the applicable procedural
requirements. Accordingly, we will treat the Informal Complaint as a
petition for reconsideration of the grant of the application.[^15]

8\. Based upon our review of the record in this proceeding, we conclude
that the application should not have been granted. In the application,
Future Comm provided the following explanation for its asserted
eligibility for I/LT channels: "Applicant is in the business of
information collection, relay and analysis for growers, packers and
truckers. Radio communications shall be used to relay information,
coordinate field activities and for safety."[^16] This is very similar
to the Activity Description in Future Comm's other applications,[^17]
which the Public Safety and Private Wireless Division, Licensing and
Technical Analysis Branch correctly concluded did not demonstrate
eligibility for I/LT spectrum.[^18] We agree with the Complainants that
Future Comm appears to intend to provide communications services to
third parties.[^19] Such services are permitted on 800 MHz I/LT
frequencies only on a not-for-profit, cost-shared basis,[^20] but Future
Comm has given no indication that it would provide service on such a
basis. We conclude that application File No. 0000726942 should have been
dismissed for the same reasons that the other Future Comm applications
were dismissed. Consequently, we will set aside the grant, return the
application to pending status and then dismiss the application.

9\. *Petition for Reconsideration.* Generally, the distance separation
requirement between co-channel I/LT stations in the 800 MHz band is 113
km.[^21] We note, as an initial matter, that Potato Hill is more than
113 km from both Stations WNPP607 and WQA519.[^22] However, for high
sites in California north of 35º North latitude and west of 118º West
latitude,[^23] additional criteria apply. Specifically, Section
90.621(b)(2) of the Commission's Rules contains a table of high sites in
that part of California, and indicates which sites cannot have
co-channel stations.[^24] Because Potato Hill is not listed in the
table, the required co-channel separations must be determined on a
case-by-case-basis, taking into consideration parameters such as antenna
height, effective radiated power, terrain irregularities, and market
conditions.[^25]

10\. Petitioners argue that the Potato Hill transmitter is on a very
high site that allows for free-space transmission in the San Joaquin
Valley, including direct line-of-sight to Petitioners' stations.[^26] In
support, Petitioners have submitted engineering statements[^27]
demonstrating that the Seventeen Licensees' operations will cause
interference to Petitioners' stations.[^28]

11\. In opposition to the Petition,[^29] the Seventeen Licensees argue
that their licenses are proper because the distance separation to the
Petitioners' stations is consistent with the separations permitted by
the short-spacing table in Section 90.621(b)(4).[^30] We agree with
Petitioners that the present matter is governed by Section 90.621(b)(2),
rather than Section 90.621(b)(4).[^31] Indeed, the short-spacing table
specifically notes that Section 90.621(b)(2) requires greater distance
separations for high sites in California, and provides that Section
90.621(b)(2) governs in the event of a conflict.[^32]

12\. We also agree with Petitioners that the Seventeen Licensees should
not have been authorized to operate on frequency 854.9125 MHz at Potato
Hill. We have conducted our own engineering analysis, which confirms the
conclusions in Petitioners' engineering statements that facilities
operating at Potato Hill would cause harmful interference[^33] to the
Petitioners' stations, particularly Station WQA519. In addition, we note
that the site of Station WQA519 (Joaquin Ridge) is listed in the table
in Section 90.621(b), and that the table prohibits authorization of a
co-channel station at Blue Ridge, which is the closest site on the table
to Potato Hill (and in fact is farther from Joaquin Ridge than Potato
Hill is).[^34] Thus, the conclusions of the engineering studies are
consistent with the table. Consequently, we will set aside the grant of
the licenses of the Seventeen Licensees with respect to frequency
854.9125 MHz.[^35]

**IV. CONCLUSION**

13\. We grant the Informal Complaint to the extent that we shall set
aside the grant to Future Comm of the license to operate Station
WPUI236. In other respects, the Informal Complaint is moot, because the
other applications at issue already have been dismissed. We also grant
the Petition, and shall set aside the authorizations of the Seventeen
Licensees to operate at Potato Hill on frequency 854.9125 MHz.

**V. ORDERING CLAUSES**

14\. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 309, and 405
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
405, and Sections 1.41 and 1.106 of the Commission\'s Rules, 47 C.F.R.
§§ 1.41, 1.106, that the Informal Complaint filed by William Bolthouse
Farms, Inc., George S. Gillam, and Felder Communications on March 12,
2002 IS GRANTED IN PART and DISMISSED AS MOOT IN PART to the extent
indicated herein.

15\. IT IS FURTHER ORDERED that the grant of the license for Station
WPUI236 IS SET ASIDE, and application FCC File No. 0000726942, filed by
Future Comm on January 8, 2002, SHALL BE DISMISSED.

16\. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and
Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that the
Petition for Reconsideration filed by William Bolthouse Farms, Inc., and
Felder Communications on July 18, 2002 IS GRANTED.

17\. IT IS FURTHER ORDERED that the grants of the licenses for Station
WPVC521, Station WPVC522, Station WPVC777, Station WPVC524, Station
WPVC525, Station WPVC519, Station WPVC533, Station WPVC538, Station
WPVC539, Station WPVC540, Station WPVC542, Station WPVC543, Station
WPVC544, Station WPVC546, Station WPVC547, Station WPVC549, and Station
WPVC551 ARE SET ASIDE in part, and the licenses SHALL BE MODIFIED by
removing frequency 854.9125 MHz.

18\. 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

D'wana R. Terry

> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Informal Complaint (filed Mar. 12, 2002) ("Informal Complaint").

[^2]: Petition for Reconsideration (filed July 18, 2002) ("Petition").

[^3]: File No. 0000584833 (filed Sept. 5, 2001); File No. 0000597305
    (filed Sept. 19, 2001); File No. 0000639642 (filed Oct. 24, 2001);
    File No. 0000640852 (filed Oct. 25, 2001); File No. 0000711730
    (filed Dec. 26, 2001); File No. 0000726942 (filed Jan. 8, 2002).

[^4]: File No. 0000584833 was dismissed on May 15, 2002, on the grounds
    that Future Comm had presented insufficient justification to
    authorize the channels requested. *See* Ref. No. 148736 (generated
    May 16, 2002). The remaining applications were dismissed between
    December 2001 and February 2003, on the grounds that Future Comm's
    intended use of the stations was not permitted on I/LT Pool
    frequencies. *See* Ref. No. 1177867 (generated Dec. 11, 2001) (File
    No. 0000597305); Ref. No. 1312580 (generated Mar. 1, 2002) (File No.
    0000711730); Ref. No. 1342947 (generated Mar. 20, 2002) (File No.
    0000640852); Ref. No. 1752656 (generated Feb. 19, 2003) (File No.
    0000639642).

[^5]: Informal Complaint at 1. Actually, Complainants cite "FCC File No.
    5**0**7305," but the intended reference appears to be to File No.
    0000597305.

[^6]: In fact, as noted earlier, the application was dismissed in
    December 2001. *See supra* note 4.

[^7]: Informal Complaint at 1-2.

[^8]: *Id*. at 2.

[^9]: *Id*. at 4-6.

[^10]: Applications File Nos. 0000873738-42, 0000873748-49,
    0000873751-52, 0000873755, and 0000873757-62 were granted on June
    18, 2002. Application File No. 0000873746 was granted on June 19,
    2002.

[^11]: Petition at 3.

[^12]: *Id*. at 5-6.

[^13]: *Id*. at 7.

[^14]: 47 C.F.R. § 1.106(f), (i).

[^15]: *See*, *e.g.*, Daniel R. Goodman, Receiver; Dr. Robert Chan,
    *Memorandum Opinion and Order and Order on Reconsideration*, 13 FCC
    Rcd 21994, 21959 ¶ 24 (1998); Radiowave, *Order on Reconsideration*,
    16 FCC Rcd 5300, 5303 ¶ 7 (WTB 2001). Because the other Future Comm
    applications have been dismissed, the Informal Complaint is moot
    with respect to those applications.

[^16]: FCC File No. 0000726942, Schedule H, Item 2.

[^17]: *See* FCC File No. 0000584833, Schedule H, Item 2 ("Applicant is
    engaged in the business of information collection and analysis.
    Radio communication is to be used to coordinate \[sic\] field
    activities, relay information and for safety."); FCC File No.
    0000597305, Schedule H, Item 2 ("Applicant is engaged in the
    business of information collection and analysis and shall providing
    \[sic\] communication to agricultural packing and transport
    businesses. Radio communications to be used to coordinate field
    activities and for safety."); FCC File No. 0000639642, Schedule H,
    Item 2 ("Applicant is engaged in the business of information
    collection and analysis. Radio communication will be used to relay
    information, coordinate field activities and for safety."); FCC File
    No. 0000640852, Schedule H, Item 2 ("Applicant is engaged in the
    business of information collection and distribution to transport
    businesses. Radio communications to be used to coordinate field
    activities and for safety."); FCC File No. 0000711730, Schedule H,
    Item 2 ("Applicant is engaged in the business of information
    collection, relay and analysis for other businesses, growers,
    packers and shippers. Radio communication will be used to relay
    information, coordinate field activities and for safety.").

[^18]: *See supra* note 4.

[^19]: Informal Complaint at 5.

[^20]: 47 C.F.R. § 90.603(b).

[^21]: *See* 47 C.F.R. § 90.621(b).

[^22]: Potato Hill is approximately 160.8 km from Station WNPP607 and
    130.9 km from Station WQA519. Petition at 2-3.

[^23]: Each of the applications of the Seventeen Licensees lists the
    coordinates as 36-19-12.0 N/118-56-39.0 W. Station WNPP607's
    transmitters are located at 35-55-10.9 N/119-24-19.4 W (Pelato Peak)
    and 35-02-44.9 N/118-27-38.3 W (Observatory Ridge). Station WQA519's
    transmitter is located at 36-18-4.8 N/120-24-5.6 W (Joaquin Ridge).

[^24]: *See* 47 C.F.R. § 90.621(b)(2).

[^25]: *See* 47 C.F.R. § 90.621(b)(2)(ii).

[^26]: Petition at 3.

[^27]: 47 C.F.R. § 1.106(e) provides that:

    Where a petition for reconsideration is based upon a claim of
    electrical interference, under appropriate rules in this chapter, to
    an existing station or a station for which a construction permit is
    outstanding, such petition, in addition to meeting the other
    requirements of this section, must be accompanied by an affidavit of
    a qualified radio engineer. Such affidavit shall show, either by
    following the procedures set forth in this chapter for determining
    interference in the absences of measurements, or by actual
    measurements made in accordance with the methods prescribed in this
    chapter, that electrical interference will be caused to the station
    within its normally protected contour.

[^28]: *See* Statement of Mel Freedman ("Freedman"), Engineer for Felder
    (dated July 12, 2002), attached as Exhibit A; and Statement of Mel
    Freedman, Engineer for Bolthouse (dated July 12, 2002), attached as
    Exhibit B.

[^29]: Opposition of Petition for Reconsideration at 2-3 (filed Aug. 6,
    2002) ("Opposition"). We agree with Petitioners that the Opposition
    was untimely filed. *See* Reply to Opposition of Petition for
    Reconsideration at 2 (filed Aug. 16, 2002) ("Reply") (citing 47
    C.F.R. § 1.106(g)). However, to ensure a complete record before us,
    we will consider the Opposition and arguments therein. Nonetheless,
    we take this opportunity to remind parties having business before
    the Commission that adherence to the filing requirements specified
    in Commission's rules is expected and that non-adherence could
    result in dismissal of responsive pleadings.

[^30]: Opposition at 2-3 (citing 47 C.F.R. § 90.621(b)(4)).

[^31]: *See* Reply at 4.

[^32]: *See* 47 C.F.R. § 90.621(b)(4) note 1.

[^33]: Our rules define "harmful interference" as, "any emission,
    radiation, or induction which specifically degrades, obstructs, or
    interrupts the service provided by such stations." 47 C.F.R. § 90.7.

[^34]: *See* 47 C.F.R. § 90.621(b). Potato Hill is approximately 10.2 km
    from Blue Ridge, and is closer to Joaquin Ridge by approximately 9.4
    km.

[^35]: Because we agree with Petitioners on the interference issue, we
    need not address Petitioners' other allegations, which the Seventeen
    Licensees dispute. *See* Opposition at 4.