**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of APPLIED TECHNOLOGY, INC. Request for Waiver of Distance
Separation Standards for Local Channel Exclusivity in the 929-930 MHz
Band **) ) ) ) ) ) ) )**

**ORDER**

**Adopted:** March 27, 2001 **Released:** March 28, 2001

By Deputy Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau:

1\. On October 27, 1999, Applied Technology Group, Inc. (Applied) filed
a petition for reconsideration (Petition) of the Division's September
29, 1999 order concerning the above-captioned request for waiver. On
March 29, 1994, Applied had filed a request for waiver of section
90.495(a)(1)(i)(A) of the Commission's rules, which provides that for
paging stations in the 929-930 MHz band to be eligible for local channel
exclusivity, the system must consist of at least six transmitters, and
each must be located within 25 miles (40 kilometers) of at least one
other transmitter in the system. Applied requested a waiver to obtain
local exclusivity for three of its transmitters because the distance of
the subject transmitters from the closest transmitter in the system
exceeds 25 miles, with locations 35, 43, and 47 miles distant. The
*Order* denied the requested waiver, and Applied now seeks review of
that determination. For the reasons discussed below, we deny the
Petition for Reconsideration.

2\. In accordance with section 22.119 of the Commission's rules, a
waiver may be granted if it is shown that: (1) the underlying purpose of
the rule 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 (2) in view of unique or unusual factual
circumstances of the instant case, application of the rule would be
inequitable, unduly burdensome or contrary to the public interest, or
that the applicant has no reasonable alternative. The *Order* denied the
waiver sought by Applied, stating that "we are not persuaded that grant
of this waiver would be in the public interest, nor do we find that
Applied has presented unique or unusual factual circumstances sufficient
to justify grant of its waiver request." The *Order* observed that
Applied had proffered only general statements in its waiver
justification, which was grounded essentially in the claims that no
suitable transmitter sites were available that would meet the distance
separation standards and that, even if acceptable site locations were
available, they would be of no commercial utility and not financially
warranted.

3\. Applied argues that the Division did not give its waiver request the
"hard look" required by *WAIT Radio v. FCC*. Applied contends that the
Division failed to adequately articulate its reasons for denial. The
Division disagrees with Applied's contentions. The Division carefully
considered the request for waiver and clearly stated its reasons for
denying Applied's waiver request. Specifically, the Division stated that
Applied neither produced persuasive evidence that the grant of the
waiver would be in the public interest, nor presented unique or unusual
facts sufficient to justify grant of its waiver request. *WAIT Radio*
requires the Commission to give a waiver request a "hard look" and not a
perfunctory denial. In resolving waiver requests, however, the
Commission is not required to "author an essay for the disposition of
each application." Notwithstanding Applied's claims, the Division met
the "hard look" requirement in assessing the waiver request and by
providing a reasoned explanation for denial of Applied's waiver
proposal.

4\. Applied next claims that it had made a "thorough showing" in support
of its waiver request. Applied further asserts that it had "demonstrated
unique or unusual factual circumstances." In fact, under the first prong
of the waiver test, Applied has not made any showing or provided any
evidence that the underlying purpose of the rule would be frustrated by
its enforcement and the denial of the requested waiver. Instead, Applied
argues that compliance with the 25 mile separation rule would not result
in the most efficient use of the 929-930 MHz spectrum. The Commission
has in other circumstances denied waiver of section 90.495(a)(1)(i)(A)
where the applicant based the request on a similar rationale. The
Commission maintains that the 25 mile separation requirement is
necessary to ensure that an exclusive local system serves a contiguous
geographic area.

5\. Under the second prong of the test, Applied failed to show unique or
unusual circumstances sufficient to justify a waiver, and failed to
provide evidence that compliance with the rule would be unduly
burdensome. Initially, Applied offers only general statements in its
request for waiver of the distance separation standards. Applied's
showing does not provide the necessary justification that the
circumstances described in its waiver filing are somehow unique. In
fact, many applicants confront similar concerns, and the Commission has
denied waiver requests based on facts similar to those in the instant
case. Moreover, Applied has demonstrated no benefit to the public
interest from a grant of the waiver proposals, but only benefit to its
private business interests.

6\. The Court of Appeals for the District of Columbia Circuit has
reminded the Commission that "a waiver is appropriate only if special
circumstances warrant a deviation from the general rule and such
deviation will serve the public interest. The agency must explain why
deviation better serves the public interest and articulate the nature of
the special circumstances to prevent discriminatory application and to
put future parties on notice as to its operation." Consistent with that
guidance, the record before us, and our action on similar waiver
requests, we are neither persuaded that the grant of this waiver would
be in the public interest, nor do we find that Applied has presented
unique or unusual circumstances sufficient to justify grant of its
waiver request.

7\. Accordingly, IT IS ORDERED that, pursuant to authority delegated by
section 4(i) of the Communications Act, as amended, 47 U.S.C. § 154(i),
and by sections 0.331 and 22.119 of the Commission's rules, 47 C.F.R. §§
0.331, 22.119, the waiver request filed by Applied Technology Group,
Inc. on March 29, 1994 is DENIED.

> FEDERAL COMMUNICATIONS COMMISSION

Katherine M. Harris\\

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau