Before the

**Federal Communications Commission**

# Washington, D.C. 20554

In the Matter of )

)

APPLICATION OF TOSCO CORPORATION ) File Number C000817

# ORDER

**Adopted: November 9, 1999 Released: November 10, 1999**

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

1.  **[Introduction.]{.underline}** On February 26, 1998, Henry Radio,
    Inc. (Henry) filed an informal petition to dismiss or deny or to
    require deletion of channels[^1] from the application of Tosco
    Corporation (Tosco) for a private land mobile radio (PLMR) license
    in the 450-470 MHz band.[^2] Based on the record in this proceeding,
    including documentation received from Henry and the Industrial
    Telecommunications Association, Inc. (ITA), the FCC-certified
    frequency coordinator that handled Tosco's application, we conclude
    that Henry's request should be denied and Tosco's application should
    be returned to the Licensing and Technical Analysis Branch (Branch),
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau for processing.

2.  **[Background.]{.underline}** Tosco is engaged in the refining,
    transportation, and distribution of petroleum and applied for this
    radio license to coordinate its operations.[^3] Tosco proposed a
    radio system consisting of 100 mobile units on eight channel
    pairs.[^4] Its application proposed a system with a five‑kilometer
    area of operations around a fixed point in southern California.[^5]
    Additionally, Tosco proposed to limit the output power of its radios
    to two watts.[^6]

3.  On February 26, 1998, Henry filed the Petition claiming that ITA did
    not pick the most appropriate channels for Tosco's application. In
    its Petition, Henry states that five of the channels requested by
    Tosco are co-channel to its existing station, Call Sign KD26967,[^7]
    and the proposed site is located about 20 miles from Henry's
    site.[^8] Further, Henry states that the proposed station would be
    only 12.5 kHz adjacent to another of its stations, Call Sign
    WNMI238, and well within its mobile operating area.[^9] Henry claims
    that, if granted, Tosco's radio system can be reasonably expected to
    cause harmful interference to its existing stations. Finally, Henry
    asserts that it believes that its stations have been purposefully
    targeted for interference by the frequency coordinator.[^10]

4.  After receiving Henry's Petition, the Branch, on September 2, 1998,
    returned Tosco's application to ITA and asked them to review the
    Petition and advise the Commission of its recommendation.[^11] ITA
    responded via letter on October 14, 1998, in which it affirmed its
    original frequency coordination and resubmitted Tosco's application
    for processing.[^12] On October 20, 1998, Henry sent another letter
    to the Branch in which it again claimed that the radio system
    proposed by Tosco would cause harmful interference to its stations.
    [^13] Additionally, Henry claims that the coordination by ITA of
    Tosco's application appears to be an act of retribution for Henry's
    withdrawal of several applications from ITA in October, 1997.[^14]

5.  **[Discussion.]{.underline}** Initially, we note that there are no
    rules that permit a formal petition to deny in this radio
    service.[^15] Therefore, Henry's petition is treated as an informal
    request for Commission action under Section 1.41 of the Commission's
    Rules.[^16] The Commission's *ex parte* rules require that a
    communication directed to the merits or outcome of a proceeding be
    served on the parties to the proceeding.[^17] Because the record
    does not indicate that Henry served its Petition or its reply to ITA
    upon Tosco, we will not address the merits of Tosco's application in
    this *Order*.[^18] We will consider Henry's submittals only to the
    extent that they constitute an informal complaint against ITA's
    frequency coordination practices.

6.  We first note that frequencies in the 450-470 MHz band are available
    only on a shared basis and will not be assigned for the exclusive
    use of any licensee.[^19] Section 90.173 of the Commission's Rules
    does not provide a basis for ITA not to coordinate Tosco's proposed
    use for the applied-for frequencies because they are also being used
    by Henry. In fact, we believe that effective and efficient use of
    shared spectrum has allowed the PLMR spectrum to accommodate
    numerous licensees and transmitters. In its letter, Henry also
    acknowledges that, in accordance with the Commission's Rules, all
    the disputed channels are low power offset channels[^20] and only
    licensed on a secondary non-interference basis.[^21]

7.  In light of the fact that the subject frequencies are shared, Henry
    further argues that ITA did not pick the most appropriate channels
    for Tosco.[^22] In this regard, Henry espouses that ITA purposely
    targeted its stations, Call Signs KD26967 and WNMI238, for harmful
    interference because Henry withdrew several applications from ITA in
    late 1997. The basis for this argument appears to be that many of
    its channels are either co-channel or on adjacent channels to those
    proposed in Tosco's application. To overturn a recommendation from a
    FCC-certified frequency coordinator, a petitioner bears the burden
    of proceeding and the burden of proof.[^23] We find that Henry has
    not sufficiently substantiated its allegations against ITA. Upon
    review of the frequency coordinator's recommendation, we find that
    ITA acted in accordance with the Commission's Rules and that Henry
    provides no evidence to persuade us to overturn the recommendation.

8.  Accordingly, **IT IS ORDERED** that, pursuant to the authority of
    Sections 4(i) and 405 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 154(i) and 405, and Section 1.106 of the Commission's
    Rules, 47 C.F.R. § 1.106, the informal petition to dismiss or deny
    or to require deletion of channels from the application of Tosco
    Corporation filed on February 26, 1998, is **DENIED**.

9.  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 and
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

cc: Private Wireless Division/Chron

D. Terry

H. Zeiler

R. Melson

J. Borkowski

K. Hosford

S. Stone

M. Shultz

S. Linn

K. Lawver

A. Knerr

I. Keltz

Book copy

[^1]: *See* Henry Radio Informal Petition (filed February 26, 1998)
    (Petition).

[^2]: *See* Application of Tosco Corporation, File Number C000817 (filed
    February 2, 1998).

[^3]: *Id.*

[^4]: *Id.*

[^5]: Tosco proposed an operating area centered at 33^o^46'20" N,
    118^o^17'16" W. *Id.*

[^6]: *Id.*

[^7]: Call Sign KD26967 is licensed to National Science & Technology
    Network, Inc. (NST). Ted Henry is President of NST. To avoid
    confusion, NST and Henry Radio are considered to be the same entity
    for the purposes of this *Order*.

[^8]: The operating area of Call Sign KD26967 is centered at 34^o^03'15"
    N, 118^o^14'28" W. The actual distance between this site and the
    site proposed by Tosco is 31.57 km (19.62 mi).

[^9]: *See* Petition at 1.

[^10]: ^?^*See* *Id.*

[^11]: *See* Application Return Notice for the Private Land Mobile Radio
    Services for File Number C000817 from Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division to ITA
    (September 2, 1998).

[^12]: Letter from Mark E. Crosby, President/CEO of ITA to Mary Shultz,
    Chief, Licensing and Technical Analysis Branch, Public Safety and
    Private Wireless Division (October 14, 1998).

[^13]: Letter from Ted. S. Henry, President of National Science &
    Technology Network, Inc. to Mary Shultz, Chief, Licensing and
    Technical Analysis Branch, Public Safety and Private Wireless
    Division (October 20, 1998).

[^14]: *Id.*

[^15]: *See* 47 U.S.C. § 309. Section 309(d) provides for the filing of
    petitions to deny only applications listed in Section 309(b)
    (specifically, applications for broadcast and common carrier
    services stations, industrial radio positioning stations granted on
    an exclusive basis, aeronautical enroute stations, aeronautical
    advisory stations, airdrome control stations, aeronautical fixed
    stations, and such others as the Commission shall prescribe by
    rule). 47 U.S.C. § 309(b), (d).

[^16]: *See* 47 C.F.R. § 1.41.

[^17]: *See* 47 C.F.R. § 1.1202.

[^18]: *See* 47 C.F.R. § 1.1206.

[^19]: *See* 47 C.F.R. § 90.173.

[^20]: Since 1973, the Commission has authorized the use of frequencies
    offset 12.5 kHz from regularly assignable channels on a secondary,
    non-interference basis. Initially, such use was limited to the
    Business Radio Service. *See* Amendment of Parts 2 and 91 of the
    Commission's Rules to Permit Medical Telemetry and Other Low Power
    Uses of Offset Frequencies in the Business Radio Service, Docket No.
    19478, *First Report and Order*, 41 FCC 2d 8 (1973). In 1981, the
    use of offset frequencies was expanded to all eligibles in the
    450-470 MHz band. *See* Amendment of Subpart D of Part 90 of the
    Commission's Rules and Regulations to Permit the Use of 12.5 kHz
    Offset Assignments in the 450-470 MHz Band in the Private Land
    Mobile Radio Services, *Report and Order*, PR Docket No. 80-605,
    RM-3569, 87 FCC 2d 647 (1981). As a result of PR Docket No. 92-235,
    the 'Refarming' proceeding, these channels were reclassified as
    regularly assignable channels and available for high power use.
    *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, *Report and Order and Further Notice
    of Proposed Rule Making*, PR Docket No. 92-235, 10 FCC Rcd 10076
    (1995). Currently, the Commission is generally not accepting
    applications for high power use on the offset frequencies and
    continues to license them on a secondary non-interference basis.
    *See* Freeze on the Filing of High Power Applications for 12.5 kHz
    Offset Channels in the 450-470 MHz Band (PR Docket 92-235, FCC
    95-255), *Public Notice*, DA 95-1771 (rel. August 11, 1995).

[^21]: *See* 47 C.F.R. § 90.267.

[^22]: *See* Petition at 1.

[^23]: *See* 47 C.F.R. § 90.175(a).