Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of               | * | FCC File No. 0001072079         |
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| OCCIDENTAL PERMIAN LTD         | ) |                                 |
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| Application for Assignment of  | * |                                 |
| Licenses for                   |   |                                 |
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| Commercial 800 MHz Specialized | * |                                 |
| Mobile                         | ) |                                 |
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| Radio Frequencies, and Request | * |                                 |
| for Waiver                     |   |                                 |
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| of Section 90.621(b) of the    | * |                                 |
| Commission's Rules; and        | ) |                                 |
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| NEXTEL COMMUNICATIONS, INC.    | * |                                 |
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| Request for Waiver of Section  | * |                                 |
| 90.617of the                   | * |                                 |
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| Commission's Rules             | * |                                 |
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+--------------------------------+---+---------------------------------+

**ORDER**

**Adopted: February 24, 2005 Released: February 25, 2005**

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

1.  In this *Order*, we address the above-captioned application filed by
    Occidental Permian, Inc. (Occidental), and requests for waiver filed
    by Nextel Communications, Inc. (Nextel) and Occidental (Nextel
    Waiver Request and Occidental Waiver Request, respectively).[^1] For
    the reasons set forth below, we grant the waiver requests.

2.  *Nextel Waiver Request.* Prior to 1995, "intercategory sharing"[^2]
    enabled Specialized Mobile Radio (SMR), Business, Industrial/Land
    Transportation (I/LT), and Public Safety eligibles in the
    806-821/851-866 MHz bands to apply for frequencies in other service
    categories regardless of eligibility criteria under certain
    circumstances.[^3] In December of 1995, however, the Commission
    eliminated intercategory sharing for SMR applicants,[^4] and adopted
    a geographic area licensing approach (Economic Areas (EAs)) for such
    operators.[^5] As part of the new regulatory framework, the
    Commission authorized EA licensees to relocate incumbents to
    comparable facilities.[^6] It concluded that a smooth and equitable
    transition to the new wide-area licensing approach would necessitate
    some form of mandatory relocation.[^7] Therefore, upon licensing, an
    EA licensee has the option of relocating incumbents to other
    channels provided certain requirements are met.[^8] The Commission
    adopted a mechanism for relocation of incumbents that was finalized
    in 1997, providing first for voluntary negotiations, then for
    mandatory negotiations, and lastly for involuntary relocation.[^9]

3.  In December of 1997, the Commission auctioned EA licenses for the
    upper 200 channels of the 800 MHz SMR band (800 MHz SMR
    auction).[^10] Nextel's wholly owned subsidiary, Nextel License
    Acquisition Corporation, was the winning bidder for 475 EAs in the
    800 MHz SMR auction.[^11] The licenses were conditionally granted on
    June 17, 1998.[^12]

4.  Nextel is a provider of SMR services, offering digital wide-area
    services to the public in an integrated package of cellular-like
    phone service, paging, short messaging, and one-to-one and
    one-to-many dispatch services.[^13] In order to relocate upper 200
    channel incumbent Occidental to comparable channels in the 800 MHz
    band, Nextel requests to assign Occidental frequencies 856/860.1375
    MHz and 856/857.1125 MHz, as well as seven SMR channels, in spectrum
    blocks L and K.[^14] Since intercategory sharing among commercial
    and noncommercial services is no longer permitted,[^15] Nextel seeks
    waiver of Section 90.617(d) of the Commission's Rules to permit the
    assignment of the subject commercial 800 MHz SMR channels to
    Occidental for private I/LT operations.[^16]

5.  Section 1.925 of the Commission's Rules permits waiver of specific
    rule requirements if (i) the underlying purpose of the rule(s) 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 case, application of the rule would be
    inequitable, unduly burdensome or contrary to the public interest,
    or the applicant has no reasonable alternative.[^17] Additionally,
    Section 1.3 of the Commission's Rules provides authority for a rule
    waiver upon a showing of good cause.[^18]

6.  Section 90.617(c) of the Commission's Rules lists the channels
    available for I/LT applicants in the 800 MHz band;[^19] and Section
    90.617(d) of the Commission's Rules lists the channels available for
    SMR applicants.[^20] Section 90.617(d) specifically states that the
    channels listed in that subsection are available only to applicants
    in the SMR category. The waiver of the Commission's intercategory
    prohibition sought by Nextel would enable it to use SMR spectrum to
    relocate an I/LT operator. Based on the record before us, we
    conclude that a waiver designed to facilitate relocation of 800 MHz
    SMR upper 200 channel incumbents, especially on a voluntary basis,
    would serve the public interest.[^21] We believe that such waiver
    would further the Commission's goals in the 800 MHz SMR proceeding
    by promoting an efficient and effective transition to geographic
    area licensing.[^22] When the Commission adopted Section 90.617(c)
    and (d) of the Rules, it sought to avoid a potential scarcity of
    radio frequencies for Private Land Mobile Radio Services (PLMRS) use
    by stopping the then prevailing practice of incorporating Business
    and I/LT channels into SMR systems.[^23] However, in the instant
    case, interservice category sharing does not impinge on PLMRS
    frequencies. Rather, a PLMRS applicant gets the use of channels
    assigned for SMR operations. Thus, the proposed interservice sharing
    does not undermine the underlying purpose of the prohibition.[^24]

7.  *Occidental Waiver Request.* Section 90.621(b) of the Commission's
    Rules[^25] requires license applicants desiring to operate on 800
    MHz channels at distances less than seventy miles (113 km) from
    co-channel facilities to submit with their applications either a
    waiver request[^26] or a letter of consent from each licensee
    operating a constructed and operational station with that
    distance.[^27] Since Occidental seeks to operate on frequency
    856.1125 MHz at a distance less than that prescribed in Section
    90.621(b)(4), and such use would affect two co-channel licensees,
    Occidental submitted a waiver request with respect to one such
    licensee and a letter of concurrence from the other.

8.  First, Occidental requests a waiver of the separation standards to
    permit it to operate on frequency 856.1125 MHz at its proposed
    Andrew, Texas, site, which is sixty-five miles from Station
    WPUR224.[^28] A certificate of service is attached to Occidental's
    waiver indicating that CellSMR of Lubbock, licensee of Station
    WPUR224, was concurrently served with a copy of the waiver request
    and associated application.[^29] Also, Occidental submitted an
    engineering study that demonstrates that both the proposed station
    and Station WPUR224 will receive the requisite interference
    protection.[^30] The technical analysis indicates that the proposed
    station's 22 dBμ/v interference contour will not overlap with the 40
    dBμ/v service contour of the CellSMR station.[^31] In view of
    Occidental's technical submission, we conclude that it has met the
    Commission's waiver requirements for short-spacing as it concerns
    Station WPUR224.

9.  Second, Occidental submits a letter indicating consent by Nextel to
    co-channel separation[^32] on the specified frequency relative to
    more than one hundred co-channel Nextel stations.[^33] As required
    by Section 90.621(b)(5) of the Commission's Rules, Nextel, in its
    consent, certifies that its facilities are constructed and
    operational and that it accepts any interference resulting from the
    reduced separation between the proposed facility and its
    stations.[^34] Nextel also indicated that it had received a copy of
    the application as mandated by the Commission's Rules.[^35] In view
    of this, we conclude that Occidental also has met the short-spacing
    criteria concerning Nextel's stations and, thus, the requirements of
    Section 90.621(b)(5) of the Rules. Short-spacing of stations serves
    the purpose of spectrum efficiency and allows more licensees to
    conduct operations than would otherwise be possible, while the
    consent procedure protects the operations of previously licensed
    co-channel stations from harmful interference, thus permitting
    flexibility in the granting of additional licenses.[^36] We achieve
    both goals with the instant decision.

10. In conclusion, we find that Nextel has met the burden for waiver of
    the intercategory prohibition in Section 90.617(c) and (d) of the
    Commission's Rules. Additionally, Occidental has met the
    short-spacing requirements established in Section 90.621(b)(4)
    and (5) of the Commission's Rules. This *Order* grants the waiver
    requests and permits the processing of the subject assignment
    application.[^37] This action serves the public interest because it
    promotes the effective transition to geographic licensing sought by
    the Commission.

11. Accordingly, **IT IS ORDERED**, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.925(b)(3), 90.617(c) and (d), and 90.621(e)(4) and (5) of
    the Commission's Rules, 47 C.F.R. §§ 1.925(b)(3), 90.617(c), (d),
    90.621(e)(4), (5), that the requests for waiver filed by Nextel
    Communications, Inc., and Occidental Permian Ltd., **ARE GRANTED**,
    as set forth above.

12. **IT IS FURTHER ORDERED** that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), that
    application FCC File No. 0001072079 **SHALL BE PROCESSED**
    consistent with this *Order*.

13. 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

Michael J. Wilhelm

Chief, Public Safety and Critical Infrastructure Division Wireless
Telecommunications Bureau

[^1]: The waiver requests were submitted as attachments to the
    application. *See* Nextel Communications, Inc., Request for Waiver
    of Section 90.617(d) Eligibility Restrictions to Permit Use of SMR
    Channels for Private Industrial/Land Transportation Operations
    (*Nextel Waiver Request*), and Occidental Permian Ltd., Request
    Waiver of the Separation Rules Contained in Section 90.621(b)(4),
    FCC File No**.** 0001072079 (*Occidental Waiver Request*) (filed
    Oct. 28, 2002, as amended on Mar. 28, 2003, July 25, 2003, and July
    30, 2003).

[^2]: *See* 47 C.F.R. § 90.621(e).

[^3]: *See* 47 C.F.R. §§ 90.615 (a) and 90.621(e).

[^4]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *First Report and Order, Eighth Report and Order, and Second Further
    Notice of Proposed Rulemaking*, PR Docket No. 93-144, 11 FCC Rcd
    1463, 1536-37 ¶¶ 138-142 (1995) (800 MHz Report and Order); 47
    C.F.R. § 90.621(e)(1).

[^5]: 800 MHz Report and Order, 11 FCC Rcd at 1483-85 ¶¶ 23-25.

[^6]: *Id.* at 1510 ¶ 79.

[^7]: *Id.* at 1507 ¶ 73.

[^8]: *See* 47 C.F.R. § 90. 699 which provides, among other things, that
    EA licensees must guarantee payment of relocation costs, and build
    and test the system for comparability with the incumbents' existing
    800 MHz system.

[^9]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Band, *Memorandum
    Opinion and Order on Reconsideration,* PR Docket No. 93-144, 12 FCC
    Rcd 9972, 9983-91 ¶¶ 32-58 (1997) *(*800 MHz MO&O on Recon);
    Amendment of Part 90 of the Commission's Rules to Facilitate Future
    Development of SMR Systems in the 800 MHz Band, *Second Report and
    Order,* PR Docket No. 93-144, 12 FCC Rcd 19079, 19110-26 ¶¶ 85-132
    (1997).

[^10]: 800 MHz SMR Auction Closes Winning Bidders in the Auction of 525
    Specialized Mobile Radio Licenses, *Public Notice*, 12 FCC Rcd 20417
    (1997).

[^11]: *Nextel Waiver Request* at 2.

[^12]: FCC Announces the Conditional Grant of 800 MHz SMR Licenses to
    Nextel and Nevada Wireless, *Public Notice*, 13 FCC Rcd 12024
    (1998).

[^13]: *Nextel Waiver Request* at 1.

[^14]: *Id.* at 2.

[^15]: *See supra* para. 2.

[^16]: *Nextel Waiver Request* at 1.

[^17]: 47 C.F.R. § 1.925(b)(3).

[^18]: 47 C.F.R. § 1.3.

[^19]: 47 C.F.R. § 90.617(c).

[^20]: 47 C.F.R. § 90.617(d).

[^21]: *See* Nextel Communications, Inc., *Order*, 14 FCC Rcd 11678,
    11689 ¶¶ 25, 26 (WTB 1999) (Nextel Order).

[^22]: 800 MHz Report and Order, 11 FCC Rcd at 1537 ¶ 141. *See also*
    Nextel Order at 11689 ¶ 26.

[^23]: 800 MHz Report and Order, 11 FCC Rcd at 1537 ¶ 141.

[^24]: *See* American Medical Response, Inc., *Order on
    Reconsideration*, 15 FCC Rcd 25587, 25590, 25591-92 ¶¶ 8, 11 (WTB
    PSPWD 2000).

[^25]: 47 C.F.R. § 90.621(b).

[^26]: 47 C.F.R. § 90.621(b)(4).

[^27]: 47 C.F.R. § 90.621(b)(5).

[^28]: *Occidental Waiver Request* at 1.

[^29]: *Id.* at Attachment 1.

[^30]: *Id.* at 2, Attachment 2.

[^31]: *Id.*

[^32]: The letter indicating consent was submitted as an attachment to
    the instant application. *See* Nextel Communications, Inc., Letter
    of Concurrence, FCC File No. 0001072079 (filed Oct. 28, 2002, as
    amended on March 28, 2003, July 25, 2003, and July 30, 2003).

[^33]: *Id.* at 1, Exhibits 1-5.

[^34]: *Id.* at 2.

[^35]: *Id.*

[^36]: *Cf.* Britz Fertilizers, Inc., *et al.*, *Order on
    Reconsideration*, 19 FCC Rcd 6819, 6821 ¶ 3 (PSCID 2004).

[^37]: The waiver grants are conditioned on the completion of the
    processing of the subject assignment application.