**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | * | File No. 0000569873          |
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| EMORY UNIVERSITY ATLANTA/NETWORK | ) |                              |
| COMMUNICATIONS                   | * |                              |
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| Request for Waiver of Section    |   |                              |
| 101.1331(c) of the Commission's  | * |                              |
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**ORDER**

**Adopted: May 31, 2002 Released: June 3, 2002**

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

1.  *Introduction*. On August 23, 2001, Emory University Atlanta/Network
    Communications (Emory) filed an application for authorization to
    modify its Multiple Address System (MAS) Station WNTU906, Atlanta,
    Georgia.[^1] In connection with this application, Emory requested
    waiver[^2] of Section 101.1331(c) of the Commission's Rules on
    November 19, 2001.[^3] For the reasons stated herein, we deny the
    request for waiver of Section 101.1331(c) of the Commission's Rule,
    and direct that the application will be dismissed.

2.  *Background.* On February 27, 1997, the Commission initiated a
    comprehensive examination of the MAS service, seeking comment on a
    variety of issues including the current and potential uses of MAS
    spectrum, modifications designed to streamline MAS licensing
    procedures to better accommodate such uses, spectrum allotment, and
    licensing.[^4] In the *Notice*, the Commission proposed to designate
    the 928/959 MHz band for subscriber-based services, and temporarily
    suspended the acceptance and processing of MAS applications,
    including major modifications, for the 928/959 MHz band.[^5] The
    Commission concluded that a suspension of the acceptance of
    applications in this band would permit the orderly and effective
    resolution of the issues in this proceeding and noted that
    applications for new licenses might limit the effectiveness of the
    decisions made and standards developed in the proceeding.[^6] In the
    subsequent *Report and Order* in the MAS proceeding, the Commission
    determined that a geographic area licensing approach would best
    accommodate the current and future uses of the 928/959 MHz MAS
    band.[^7] The Commission also concluded that site-based incumbents
    should be grandfathered indefinitely, but would not be permitted to
    expand their operations beyond their current service areas except
    through participation in the competitive bidding licensing process
    or pursuant to an agreement with the geographic licensee.[^8] The
    auction of MAS spectrum commenced on November 14, 2001[^9] and
    concluded on November 27, 2001.[^10]

3.  Emory operates incumbent MAS Station WNTU906 in the 959 MHz band in
    the area of Atlanta, Georgia. Emory is the largest health care
    provider in Atlanta, and it uses the station to operate a paging
    system for over 10,000 doctors and other health care
    professionals.[^11] On August 23, 2001, Emory filed an application
    to modify Station WNTU906.[^12] In the application, Emory proposed
    to relocate the station approximately one mile, and increase the
    antenna height from 59.4 meters to 312 meters.[^13] On September 28,
    2001, Emory amended its modification application by adding contour
    studies.[^14] The Public Safety and Private Wireless Division's
    Licensing and Technical Analysis Branch (Branch) returned the
    amended application to Emory and requested further amendments to
    Emory's modification application.[^15] In the letter, the Branch
    noted that there were discrepancies between the actual license data,
    the data on the application and the data used in the contour
    studies.[^16] The Branch also stated that the contour studies
    indicated that the proposed modifications would result in an
    increase in the signal strength and the overall contour of the
    station and would, thus, violate Section 101.1331(c) of the
    Commission's Rules.[^17]

4.  On November 19, 2001, Emory further amended its application by
    attaching additional contour studies and the subject request for
    waiver of Section 101.1331(c) of the Commission's Rules to the
    application.[^18] Emory's "main reason" for seeking to relocate the
    station is that increased building construction around the current
    site has limited the ability of the master station transmitter to
    reach its remote sites.[^19] Emory contends that this link is
    critical for notifying doctors of medical emergencies in the Atlanta
    area[^20] and that, without the proposed modifications, the system
    would be ineffective and could put the lives of citizens dependent
    on the health care provider at risk.[^21]

5.  *Discussion*. Section 101.1331(c) of the Commission's Rules
    provides, *inter alia*, that incumbent MAS operators in the 959 MHz
    band are grandfathered as of January 19, 2000 and may expand their
    systems only if the signal level does not increase the composite
    contour that occurs at a 40.2-kilometer (25-mile) radius from the
    center of each master station transmitter site.[^22] As stated
    earlier, Emory's contour studies show that the proposed
    modifications will result in an increase in the signal strength and
    overall contour of the station. Therefore, without waiver of Section
    101.1331(c), Emory's modification application is defective.[^23] We
    may grant a request for waiver of a rule if the requesting party
    shows (i) the underlying purpose of the rule would not be served or
    would be frustrated by application to the instant case, and a grant
    of the requested waiver would be in the public interest; or (ii) in
    view of the 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 the applicant has
    no reasonable alternative.[^24] We do not believe that Emory has
    demonstrated that waiver of Section 101.1331(c) of the Commission's
    Rules is warranted.

6.  We note, as an initial matter, that we have in the past granted
    waivers to licensees who were forced by new construction or other
    circumstances to relocate a station.[^25] However, in those cases,
    the licensees have demonstrated that, because of their rural
    location, the newly proposed sites were the closest suitable
    location from which to transmit. The licensees also demonstrated
    that they would not expand their systems, change equipment or carry
    new traffic at the new location.[^26] In contrast, Emory does not
    provide such information. Thus, we are unable to find that Emory has
    made a sufficient showing that a waiver is warranted. Specifically,
    it has not demonstrated that there is no other location, or
    combination of locations, in Atlanta from which Emory can operate
    its system without substantially[^27] increasing Station WNTU906's
    signal strength at the 25-mile radius contour. Unlike the licensees
    in the cases discussed above, Emory operates in a major urban area
    with, presumably, numerous options for a transmission location that
    would not reduce the territory available to the geographic licensee.

7.  Furthermore, Emory did not explain why it did not or could not bid
    in the MAS auction. We note that no auction licenses were awarded on
    Emory's frequency (959.9375 MHz) in the proposed operating area, and
    these licenses will be re-auctioned in the future.[^28] Emory is
    free to bid on the relevant licenses at that time,[^29] or to
    attempt to reach an agreement regarding expanding its contours with
    the ultimate geographic licensee.[^30] Therefore, we do not believe
    that Emory has demonstrated that it has no reasonable alternatives.
    Accordingly, we deny Emory's request for waiver of Section
    101.1331(c) of the Commission's Rules.

8.  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 filed by Emory University Hospital on November
    19, 2001, IS DENIED.

9.  IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i) and
    Section 1.934(d)(2) of the Commission's Rules, 47 C.F.R. §
    1.934(d)(2), FCC File No. 0000569873, filed August 23, 2001, SHALL
    BE DISMISSED.

10. 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]: FCC File No. 0000569873.

[^2]: *See* FCC File No. 0000569873, Letter from Joseph Massey, Emory
    University Atlanta/Network Communications, Requesting Waiver of
    Section 101.1331(c) of the Commission's Rules (Emory Waiver
    Request).

[^3]: 47 C.F.R. § 101.1331(c).

[^4]: *See* Amendment of the Commission's Rules Regarding Multiple
    Address Systems, *Notice of Proposed Rule Making*, WT Docket No.
    97-81, 12 FCC Rcd 7973 (1997).

[^5]: *Id*. at 8003-04 ¶¶ 68-71.

[^6]: *Id.* We note that a *Further Notice of Proposed Rule Making* was
    released in this proceeding on July 1, 1999, to assess the effects
    of the 1997 Balanced Budget Act on the proposals in the Notice.
    *See* Amendment of the Commission's Rules Regarding the Multiple
    Address Systems, *Further Notice of Proposed Rule Making*, WT Docket
    97-81, 14 FCC Rcd 10744 (1999). The suspension was not affected by
    the *Further Notice*.

[^7]: *See* Amendment of the Commission's Rules Regarding Multiple
    Address Systems, *Report and Order*, WT Docket No. 97-81, 15 FCC Rcd
    11956 (2000) (*Report and Order*).

[^8]: *Id.* at 11978 ¶¶ 57-58; *see* 47 C.F.R. § 101.1331(c).

[^9]: *See* Auction of Licenses for Multiple Address Systems Spectrum,
    *Public Notice*, 16 FCC Rcd 17900 (2001).

[^10]: *See* Multiple Address Systems Spectrum Auction Closes, *Public
    Notice*, 16 FCC Rcd 21011 (2001) (*Auction Closing Notice*).

[^11]: *See* Emory University Atlanta/Network Communications, Request
    for Waiver at 1 (filed Nov. 19, 2001) (Emory Waiver Request).

[^12]: *See* FCC File No. 0000569873 (filed Aug. 23, 2001).

[^13]: *Id.* Emory also proposed to reduce the effective isotropic
    radiated power. *Id.*

[^14]: *See* FCC File No. 0000569873 (as amended Sept. 28, 2001).

[^15]: ULS Automated Letter to Keith Nation, Emory University
    Atlanta/Network Communications, Reference No. 1092735 (dated Oct. 3,
    2001).

[^16]: *See id.*

[^17]: *See id.*

[^18]: *See* FCC File No. 0000569873 (as amended Nov. 19, 2001).

[^19]: Emory Waiver Request at 1.

[^20]: *Id.*

[^21]: *See* Emory University Atlanta/Network Communications,
    Explanation Letter (filed Aug. 23, 2001).

[^22]: 47 C.F.R. § 101.1331(c).

[^23]: Contrary to Emory's suggestion, a waiver of Section 101.1331(c)
    is required even though Emory does not propose to exceed a signal
    strength of 40 dBμV/m at its 25-mile radius contour. While 47 C.F.R.
    § 101.1333(c) provides that geographic licensees are prohibited from
    exceeding a signal strength of 40 dBμV/m at incumbent licensees'
    40.2-kilometer (25-mile) radius contour, it does not authorize
    incumbent licensees to increase their power levels to that level at
    their 25-mile radius. Rather, as noted above, pursuant to 47 C.F.R.
    § 101.1333(c), incumbent licensees may not exceed the signal
    strength currently authorized at their 25-mile radius, even if it is
    below 40 dBμV/m.

[^24]: 47 C.F.R. § 1.925(b)(3).

[^25]: *See* Range Telephone Cooperative, Inc., *Order*, 15 FCC Rcd
    23772, 23774 ¶ 5 (WTB PSPWD 2000) (*Range Telephone*); Telcom
    Systems, Ltd., *Order*, DA 99-2296, ¶¶ 5-6 (WTB PSPWD rel. Oct. 25,
    1999) (*Telcom*).

[^26]: *Range Telephone*, 15 FCC Rcd at 23774-775 ¶ 6; *Telcom*, ¶ 6.

[^27]: A comparison of Emory's current and proposed contours indicates
    that if the modification application were granted, the area
    encompassed by Station WNTU906's 40 dBμ contour would more than
    double.

[^28]: *Auction Closing Notice*, 16 FCC Rcd at 21013.

[^29]: We note that the minimum opening bid for licenses in the Atlanta
    market did not exceed \$1,500. *See* Multiple Address Systems
    Spectrum Auction Scheduled for November 14, 2001, *Public Notice*,
    16 FCC Rcd 12990, 13003 (2001).

[^30]: *See* 47 C.F.R. § 101.1331(c); *Report and Order*, 15 FCC Rcd at
    11980 ¶ 62.