**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0000693489      |
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| NATIONAL SCIENCE AND TECHNOLOGY  | ** | FCC File No. 0002920691      |
| NETWORK, INC.                    |    |                              |
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| Application for Authorization of | *) |                              |
| a Trunked System in the 470-512  | ** |                              |
| MHz Band                         |    |                              |
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| Application to Modify License    | *) |                              |
| for Trunked System in the        | ** |                              |
| 470-512 MHz Band                 |    |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: October 18, 2007 Released: October 19, 2007**

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

1.  *Introduction.* In a January 31, 2007 *Order*,[^1] we denied
    petitions filed by Mobile Relay Associates (MRA) and James A. Kay,
    Jr. to deny an application[^2] of National Science and Technology
    Network, Inc. (NSTN) for authorization to operate a trunked system
    on multiple frequencies in the 470-512 MHz band. The application
    subsequently was granted under Call Sign WQGI981. We now have before
    us petitions for reconsideration of the *Order* filed by MRA[^3] and
    James A. Kay, Jr., Comm Enterprises, LLC, and MS Airwaves, Inc.
    (collectively, Kay).[^4] We also have before us comments submitted
    by Enterprise Wireless Alliance (EWA),[^5] Radio Communications
    Association (RCA),[^6] and the Land Mobile Communications Council
    (LMCC).[^7] In addition, NSTN has filed an application to modify the
    license for Station WQGI981 to, *inter alia*, increase the maximum
    authorized power.[^8] For the reasons discussed below, we grant the
    MRA petition and reverse the *Order*, and will rescind the grant of
    the initial application and dismiss both the initial application and
    the modification application.

2.  *Background.* The *Order* granted an NSTN application requesting
    authority to operate a trunked radio system on 12.5 kHz "offset"
    channels in the 470-512 MHz band. NSTN proposed to operate with a
    12.5 kHz channel bandwidth.

3.  In 1997, the Commission directed the certified frequency
    coordinators for the private land mobile radio services to reach a
    consensus on the applicable coordination procedures for the 12.5 kHz
    "offset" channels in the 470-512 MHz frequency band.[^9] That
    consensus is embodied in the LMCC procedures for evaluating adjacent
    channel interference in the 470-512 MHz band using the interference
    criteria of TIA/EIA/TSB-88 (TSB-88).[^10] The LMCC Consensus
    provides that an application shall not be certified if an incumbent
    or the applicant has unacceptable interference of more than five
    percent reduction of the calculated service area reliability.[^11]
    NSTN's frequency coordinator stated that the NSTN application was
    coordinated using TSB-88, and that the applicant's effective
    radiated power was adjusted so that the proposed station would not
    cause more than five percent signal degradation to adjacent-channel
    stations.[^12] The *Order* concluded, however, that TSB-88 did not
    apply in the instant case because there was no spectral overlap
    between MRA's stations and NSTN's proposed facilities.[^13]

4.  In addition, the Commission adopted Section 90.187 of the Rules to
    permit centralized trunking in the 150-512 MHz frequency bands.[^14]
    Centralized trunked systems must employ equipment that prevents
    transmission if a signal from another system is present on the
    frequency, unless the conditions in Section 90.187(b)(1) or (b)(2)
    are met. Section 90.187(b)(1) provides that monitoring is not
    required by applicants or licensees in the 470-512 MHz band that
    meet the loading requirements of Section 90.313 of the Rules[^15]
    and have exclusive use of their frequencies in their service
    area.[^16] Section 90.187(b)(2) provides that monitoring is not
    required on frequencies where an applicant or licensee does not have
    an exclusive service area if written consent is obtained from all
    "affected licensees."[^17] Licensees' consent must be obtained if
    their service contours are overlapped by both the proposed trunked
    station's interference contour and a circle with a radius of seventy
    miles from the proposed base station,[^18] and, as relates to the
    matter at hand, the licensees "have assigned frequencies (base and
    mobile) that are 7.5 kHz or less removed from proposed stations that
    will operate with a 12.5 kHz bandwidth."[^19] The *Order* concluded
    that NSTN did not need to obtain the written consent of MRA and Kay,
    because the proposed center frequencies for NSTN's 12.5 kHz channels
    were more than 7.5 kHz (specifically, 12.5 kHz) removed from MRA's
    and Kay's center frequencies.[^20]

5.  *Discussion.* On reconsideration, MRA argues that the *Order*'s
    conclusion that TSB-88 did not apply because there was no spectral
    overlap was incorrect.[^21] Kay argues that the *Order* misapplied
    Section 90.187(b)(2).[^22] Finally, RCA argues that Section
    90.187(b)(2) does not apply to the 470-512 MHz band.[^23] As set
    forth below, we agree with MRA that TSB-88 applies to NSTN's
    application. Accordingly, we reverse the *Order* on that basis. With
    respect to the other issues, however, we conclude that the *Order*
    was correct.

6.  While TSB-88 does not apply when there is no spectral overlap,[^24]
    we now conclude that there is spectral overlap in the present
    instance: MRA and Kay operate on 25 kHz channels (with an occupied
    bandwidth of 20 kHz), so NSTN's proposed operations on 12.5 kHz
    channels (with an occupied bandwidth of 11.25 kHz) on center
    frequencies 12.5 kHz removed from MRA's and Kay's center frequencies
    results in overlap.[^25] Therefore, NSTN application was required to
    satisfy the criteria of TSB-88. MRA has submitted TSB-88 analyses
    conducted by EWA indicating interference exceeding the acceptable
    five percent reduction of the calculated service area reliability
    for each frequency requested in the NSTN application, and our
    engineering staff's independent studies confirm those results.
    Consequently, we conclude that the coordination of the NSTN
    application was defective because the proposed operations would not
    afford the required interference protection to the adjacent-channel
    stations of MRA and Kay. We therefore will rescind the grant and
    dismiss the application. In addition, we will dismiss as moot NSTN's
    pending application to modify the license.

7.  While the foregoing discussion resolves the matter before us, we
    will address the parties' other contentions, in order to clarify
    certain issues. Kay argues that the *Order* misapplied Section
    90.187(b)(2) when it concluded that MRA and Kay were not affected
    licensees. Specifically, Kay asserts that Section 90.187(b)(2)
    requires consideration of not only the separation between the
    incumbent and proposed center frequencies, but also the occupied
    bandwidth.[^26] We agree with NSTN that the *Order* was correct,
    because the separation between NSTN's proposed center frequencies
    and those of MRA and Kay was greater than 7.5 kHz.[^27] The
    Commission specifically addressed this issue in 1999:

    \[A\]pplicants of proposed trunked systems must obtain concurrence
    from . . . only those adjacent channel stations that have assigned
    frequencies within the stated boundaries. For example, if a licensee
    proposes to operate a trunked radio system that is designed to
    operate on 12.5 kHz channels . . . on one of the former 12.5 kHz
    offset channels, the Rules require the applicant to obtain
    concurrence from . . . all adjacent stations that have *assigned
    frequencies* within 7.5 kHz of the trunked system\'s *assigned
    frequency*.[^28]

    We therefore conclude that the *Order* interpreted Section
    90.187(b)(2) correctly.

8.  Finally, RCA argues that Section 90.187(b)(2) does not apply to
    stations in the 470-512 MHz band, and that Section 90.187(b)(1) is
    the sole test for whether a trunked station in the 470-512 MHz band
    must monitor the frequency before transmitting.[^29] We disagree.
    Contrary to RCA's contention, the fact that Section 90.187(b)(1)
    applies only to applicants in the 470-512 MHz band does not suggest
    or imply that Section 90.187(b)(2) does not also apply to that
    band.[^30] If Section 90.187(b)(2) did not apply to applicants in
    the 470-512 MHz band, there would be no reason for the rule to
    define a service contour for such stations, in order to determine
    the affected licensees from which consent is required.[^31] Rather,
    Sections 90.187(b)(1) and (b)(2) provide alternative bases for
    permitting new centralized trunked 470-512 MHz operations;
    applicants that do not meet one criterion must satisfy the other.
    Section 90.187(b)(2) has properly been applied to 470-512 MHz
    applications in the past,[^32] and was properly applied in the
    instant matter.

9.  Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 303(i), and
    405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(i), 405, and Section 1.106 of the Commission's Rules, 47
    C.F.R. § 1.106, that the Petition for Reconsideration filed on March
    2, 2007 by Mobile Relay Associates, IS GRANTED, and application FCC
    File No. 0000693489, filed by National Science and Technology
    Network, Inc. on December 12, 2001 and subsequently amended, SHALL
    BE RETURNED TO PENDING STATUS and DISMISSED consistent with this
    *Order on Reconsideration* and the Commission's Rules.

10. IT IS FURTHER ORDERED that the Motion to Strike Reply of Mobile
    Relay Associates filed by National Science and Technology Network,
    Inc. on April 2, 2007 IS DISMISSED.

11. IT IS FURTHER ORDERED that the Joint Petition for Reconsideration
    filed on March 2, 2007 by James A. Kay, Jr., Comm Enterprises, LLC,
    and MS Airwaves, Inc. IS DENIED.

12. IT IS FURTHER ORDERED that application FCC File No. 0002920691,
    filed by National Science and Technology Network, Inc. on February
    21, 2007, SHALL BE DISMISSED AS MOOT.

13. IT IS FURTHER ORDERED that the informal objection to application FCC
    File No. 0002920691 filed by Mobile Relay Associates on March 22,
    2007 IS DISMISSED AS MOOT.

14. 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]: National Science and Technology Network, Inc., *Order*, 22 FCC Rcd
    1953 (WTB MD 2007) (*Order*).

[^2]: FCC File No. 0000693489 (filed Dec. 12, 2001).

[^3]: Petition for Reconsideration (filed Mar. 2, 2007) (MRA Petition).
    NSTN filed an opposition. Opposition of National Science and
    Technology Network, (NSTN) to Petition for Reconsideration of Mobile
    Relay Associates (MRA) (filed Mar. 16, 2007) (Opposition to MRA).
    MRA filed a reply. Reply of Mobile Relay Associates (filed Mar. 27,
    2007). NSTN moved to strike the reply. Motion to Strike Reply of
    Mobile Relay Associates (filed Apr. 2, 2007). MRA filed an
    opposition to the motion to strike the reply. Opposition to Motion
    to Strike Reply (filed Apr. 12, 2007) (Motion to Strike). We agree
    with MRA that NSTN's motion to strike MRA's reply merely sets forth
    NSTN's disagreement with the substance of the reply, and provides no
    basis for striking the pleading. *See id.* at 1. Consequently, we
    dismiss the motion to strike.

[^4]: Joint Petition for Reconsideration (filed Mar. 2, 2007) (Kay
    Petition). Kay filed a supplement. Supplement to Joint Petition for
    Reconsideration (filed Mar. 5, 2007). NSTN filed an opposition.
    Opposition of National Science and Technology Network, (NSTN) to
    Joint Petition for Reconsideration (filed Mar. 16, 2007) (Opposition
    to Kay). Kay filed a reply. Reply to Opposition (filed Mar. 30,
    2007). Kay filed a further supplement to the petition. Motion for
    Leave to File Supplement and Further Supplement to the Joint
    Petition for Reconsideration (filed June 28, 2007).

[^5]: Letter dated Mar. 2, 2007 from Andre F. Cote, Senior Vice
    President, EWA, to Scot Stone, Deputy Chief, Mobility Division,
    Wireless Telecommunications Bureau (EWA Letter).

[^6]: Letter dated Mar. 15, 2007 from Russell H. Fox, Mintz, Levin,
    Cohn, Ferris, Glovsky and Popeo, P.C., counsel to RCA, to Fred
    Campbell, Chief, Wireless Telecommunications Bureau (RCA Letter).

[^7]: Letter dated Apr. 4, 2007 from Ralph A. Haller, President, LMCC,
    to Scot Stone, Deputy Chief, Mobility Division, Wireless
    Telecommunications Bureau (LMCC Letter).

[^8]: FCC File No. 0002920691 (filed Feb. 21, 2007). MRA filed an
    informal objection to the modification application. Informal
    Objection (filed Mar. 22, 2007); Supplement to Informal Objection
    (filed June 28, 2007).

[^9]: *See* Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them and
    Examination of Exclusivity and Frequency Assignment Policies of the
    Private Land Mobile Services, *Second Report and Order*, PR Docket
    No. 92‑235, 12 FCC Rcd 14307, 14330-31 ¶ 43 (1997) (*Refarming
    Second Report and Order*).

[^10]: *See* Filing Freeze to be Lifted for Applications under Part 90
    for 12.5 kHz Offset Channels in the 421-430 and 470-512 MHz Bands,
    *Public Notice*, 13 FCC Rcd 5942, 5942 (WTB 1997) (citing Letter
    from Larry A. Miller, President, LMCC, to Daniel B. Phythyon, Esq.,
    Acting Chief, Wireless Telecommunications Bureau (Sept. 10, 1997)
    (LMCC Consensus)).

[^11]: *See* LMCC Consensus, Attachment at 2.

[^12]: *See* Letter dated Feb. 25, 2002 from Gary Ruark, Frequency
    Coordinator, American Automobile Association, to Federal
    Communications Commission, Wireless Telecommunications Bureau.

[^13]: *See Order*, 22 FCC Rcd at 1954 n.10 (citing City of El Segundo,
    *Order on Reconsideration*, 20 FCC Rcd 18857, 18859 ¶ 5 (WTB PSCID
    2005) (*El Segundo*)).

[^14]: *See* 47 C.F.R. § 90.187.

[^15]: 47 C.F.R. § 90.313.

[^16]: *See* 47 C.F.R. § 90.187(b)(1).

[^17]: *See* 47 C.F.R. § 90.187(b)(2).

[^18]: 47 C.F.R. § 90.187(b)(2)(ii), (iii).

[^19]: 47 C.F.R. § 90.187(b)(2)(i).

[^20]: *See Order*, 22 FCC Rcd at 1954 ¶ 3.

[^21]: *See* MRA Petition at 2-3; *accord* EWA Letter at 2; LMCC Letter
    at 2.

[^22]: *See* Kay Petition at 4-5.

[^23]: *See* RCA Letter at 2-3.

[^24]: *See*, *e.g.*, National Science and Technology Network, Inc.,
    *Order*, 22 FCC Rcd 11538, 11539 n.9 (WTB MD 2007) (citing City of
    Los Angeles, Department of Airports, *Order*, 22 FCC Rcd 1808, 1810
    ¶ 10 (PSHSB PD 2007) (*Los Angeles Airports*), *recon. pending*),
    *recon. pending*.

[^25]: *See id.* at 11539 ¶ 3. The *Order*'s contrary conclusion
    apparently was the result of a mathematical error.

[^26]: *See* Kay Petition at 4.

[^27]: *See* Opposition to MRA at 1-2; Opposition to Kay at 1; Motion to
    Strike at 3.

[^28]: Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them, *Third
    Memorandum Opinion and Order*, PR Docket No. 92-235, 14 FCC Rcd
    8642, 8661 ¶ 38 (1999) (emphasis added) (footnote omitted); *see
    also*, *e.g.*, RF Data, Inc., *Order on Reconsideration*, 17 FCC Rcd
    10410, 10411-12 ¶ 5 (WTB PSPWD 2002) (determining the applicability
    of Section 90.187(b)(2) by comparing the incumbent and proposed
    center frequencies, and expressly rejecting "the argument that the
    Commission\'s Rules require applicants proposing to operate trunking
    systems on the 12.5 kHz 'offset' channels with a 12.5 kHz channel
    bandwidth to obtain the consent of any 25 kHz incumbent system
    operating on the adjacent 'main' channel"); *id.* at 10412 n.21
    ("While it is true that when the Commission adopted policies and
    procedures concerning Section 90.187 that it urged coordinators to
    avoid coordinations that would place interfering signals within the
    passband of 25 kHz receivers, it did not prohibit such
    coordinations.") (citing Replacement of Part 90 by Part 88 to Revise
    the Private Land Mobile Radio Services and Modify the Policies
    Governing Them and Examination of Exclusivity and Frequency
    Assignment Policies of the Private Land Mobile Services, *Fifth
    Memorandum Opinion and Order*, PR Docket No. 92-235, 16 FCC Rcd 416,
    422-23 ¶¶ 15-17 (2000)).

[^29]: *See* RCA Letter at 2.

[^30]: *See* Replacement of Part 90 by Part 88 to Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them,
    *Third Memorandum Opinion and Order*, PR Docket No. 92-235, 14 FCC
    Rcd 10922, 10923 ¶ 2 (1999); *Refarming Second Report and Order*, 12
    FCC Rcd at 14338 ¶ 58 (both indicating that the criteria in Section
    90.187(b)(2) apply to proposed "centralized trunked systems in the
    150-174 MHz, 421-430 MHz, 450-470 MHz, and 470-512 MHz bands").

[^31]: *See* 47 C.F.R. § 90.187(b)(2)(ii) (defining service area for
    421-512 MHz stations as 39 dBu contour).

[^32]: *See*, *e.g.*, Mobile Relay Associates, *Order*, 21 FCC Rcd 3551,
    3552 ¶ 3 (WTB PSCID 2006); *see also* LMCC Letter at 2. RCA cites
    several decisions for the proposition that Section 90.187(b)(2) does
    not apply in the 470-512 MHz band. We have reviewed those decisions,
    and conclude that Section 90.187(b)(2) was not discussed therein
    either because the assigned frequencies were not within the stated
    boundaries, *see* *Los Angeles Airports*, 22 FCC Rcd 1808; *El
    Segundo*, 20 FCC Rcd 18857, or because the application did not meet
    the TSB-88 criteria, which mooted the Section 90.187(b)(2) analysis,
    *see* Samuel Moses, *Order on Further Reconsideration*, 21 FCC Rcd
    11257 (WTB 2006), *recon. pending*; University of Southern
    California, *Order*, 19 FCC Rcd 23155 (WTB PSCID 2004).