**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  |                              |
|                                  | *) |                              |
| TERRY L. PFEIFFER                | ** |                              |
|                                  |    |                              |
| Licensee of Industrial/Business  | *  |                              |
| Private Land Mobile Radio        | *) |                              |
| Station WPWH301, Malone, NY      | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: April 26, 2004 Released: April 28, 2004**

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

# INTRODUCTION

1.  By this *Memorandum Opinion and Order*, we initiate a proceeding to
    modify the license of Terry L. Pfeiffer ("Pfeiffer") for
    Industrial/Business Pool Station WPWH301, Malone, New York, to
    delete frequency 152.870 MHz. As discussed in futher detail below,
    we take this action in furtherance of ensuring compliance with
    international obligations and to promote the public interest.

# BACKGROUND

2.  On November 15, 2002, Pfeiffer was granted a license for Station
    WPWH301 in Malone, New York to operate "FB8"[^1] trunked
    operations.[^2] Among the assigned base station frequencies was
    frequency 152.870 MHz. The maximum authorized effective radiated
    power (ERP) is five watts.[^3]

3.  On September 10, 2003, a representative of Industry Canada contacted
    the Licensing and Technical Analysis Branch (Branch) of the former
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau[^4] stating that several stations in
    Ontario licensed to Union Gas were receiving interference to their
    communications on frequency 152.870 MHz.[^5] Industry Canada
    indicated that it had pinpointed the source of the interference to a
    U.S. station located near Malone, New York transmitting on frequency
    152.870 MHz.[^6] Industry Canada later updated its interference
    report to indicate that the interference was of a continuous nature
    and so harmful that it hampered Union Gas's ability to respond to
    emergency situations such as a natural gas leak.[^7]

4.  Based on the information supplied by Industry Canada, agents from
    the Commission's Enforcement Bureau performed an inspection of
    Station WPWH301 on December 22, 2003. During the inspection, the
    Commission field agents verified that Pfeiffer's Station WPWH301 was
    the source of the interference to Union Gas's operations. In
    coordination with the Branch, Pfeiffer modified his operations in an
    effort to eliminate the interference. However, on March 3, 2004,
    Industry Canada reported that Union Gas continues to suffer harmful
    interference from Station WPWH301.[^8]

# DISCUSSION

5.  Based on the information before us, we conclude that Pfeiffer's
    operation on frequency 152.870 MHz should cease in order to prevent
    interference to the Union Gas stations operating on frequency
    152.870 MHz. The Union Gas stations are entitled to protection from
    harmful interference created by Pfeiffer's station because Union
    Gas's stations were coordinated with the United States in accordance
    with the current U.S/Canadian agreement.[^9] By contrast, Pfeiffer's
    application to operate with five watts ERP on frequency 152.870 MHz
    was granted without Canadian coordination.[^10]

6.  According to Section 90.173 of the Commission's Rules, all
    applicants and licensees shall cooperate in the selection and use of
    frequencies in order to reduce interference and make the most
    effective use of authorized facilities.[^11] In addition, Section
    90.173 indicates that the Commission may deny the use of any
    frequency at a given location if its use in that location is not in
    the public interest.[^12]

7.  In this instance, based on the circumstances presented, we find that
    Pfeiffer's current operation on frequency 152.870 MHz in Malone, New
    York, is contrary to the public interest. Pfeiffer's operation on
    this frequency is causing harmful interference to Union Gas, which
    is a consequence at odds with the U.S.- Canada Agreement. Moreover,
    we note that, although Pfeiffer has modified his operations on
    frequency 152.870 MHz, on more than one occasion since December 22,
    2003, he has been unable to effectively reduce or eliminate the
    interference. We believe that Section 316(a)(1) of the
    Communications Act of 1934, as amended (the Act), provides the
    appropriate vehicle for resolving this matter.[^13] Section 316(a)
    permits the Commission to modify a station license if the action
    will promote the public interest, convenience, and necessity.[^14]
    Therefore, we conclude that it would be in the public interest to
    delete frequency 152.870 MHz as an authorized frequency for
    operation of Station WPWH301. In this connection, we note that the
    proposed modification would serve the public interest by eliminating
    harmful interference to Union Gas. Further, we believe that such
    action would not unduly disrupt Pfeiffer's operations because other
    frequencies also are assigned to Station WPWH301. We further note
    that we are unaware of the availability of alternate frequency that
    could be assigned to Pfeiffer in replacement of frequency 152.870
    MHz. Thus, we believe that a modification of Pfeiffer's license to
    delete the subject frequency without authorizing a replacement
    frequency is appropriate under the circumstances presented.

8.  Consequently, we propose to modify Pfeiffer's license for Station
    WPWH301 to remove frequency 152.870 MHz. In accordance with Section
    1.87(a) of the Commission\'s Rules,[^15] we will not issue a
    modification order until Pfeiffer has received notice of our
    proposed action and has had an opportunity to file a protest. To
    protest the modification, Pfeiffer must, within thirty days of the
    release date of this *Memorandum Opinion and Order*, submit a
    written statement with sufficient evidence to show that the
    modification would not be in the public interest. The protest must
    be filed with the Office of the Secretary, Federal Communications
    Commission, 445 Twelfth Street, S.W., Room TW-A325, Washington, DC
    20554.[^16] If no protest is filed, Pfeiffer will have waived his
    right to protest the modification and will be deemed to have
    consented to the modification.

**V. ORDERING CLAUSES**

9.  ACCORDINGLY, IT IS PROPOSED, pursuant to Sections 4(i) and 316(a) of
    the Communications Act of 1934, 47 U.S.C. §§ 154(i), 316, and
    Section 1.87 of the Commission\'s Rules, 47 C.F.R. § 1.87, that the
    license for Private Land Mobile Radio Service Station WPWH301,
    Malone, New York held by Terry L. Pfeiffer, BE MODIFIED by deleting
    frequency 152870 MHz.

10. IT IS FURTHER ORDERED that this *Memorandum Opinion and Order* shall
    be sent by certified mail, return receipt requested, to Terry L.
    Pfeiffer, 6350 Bills Rd, Naples, NY 14512-9738.

11. 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 Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: An "FB8" station class code indicates a centrally trunked
    operation. Centralized trunking uses multiple channel pairs
    controlled by a computer that automatically assigns a user the first
    available channel or places the user in a queue to be served in
    turn. 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, 10924 ¶ 2 (1999).

[^2]: FCC File No. A061567.

[^3]: For one base station frequency (150.950 MHz), the maximum
    authorized ERP was fifty watts; for the other base station
    frequencies (152.870 MHz, 153.305 MHz, 153.365 MHz, and 153.635
    MHz), the maximum authorized ERP was five watts.

[^4]: The Commission reorganized the Wireless Telecommunications Bureau
    effective November 13, 2003, and the relevant duties of the Public
    Safety and Private Wireless Division were assumed by the Public
    Safety and Critical Infrastructure Division. *See* Reorganization of
    the Wireless Telecommunications Bureau, *Order*, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003).

[^5]: *See* E-mail dated Sept. 10, 2003 from Pierre Gaudreau, Industry
    Canada, to Tracy Simmons. The harmful interference was being
    experienced by mobile units associated with the following Union Gas
    stations: Station VAJ579, Morrisburg, Ontario; Station VEK839,
    Bunker Hill, Ontario; Station VEK855, Cornwall, Ontario; Station
    XNG529, Cornwall, Ontario; and Station XNG530, South Mountain,
    Ontario. *Id.*

[^6]: *Id.*

[^7]: *See* E-mail dated Nov. 28, 2003 from Aldo Ongaro, Industry
    Canada, to Tracy Simmons.

[^8]: Telephone call on Mar. 3, 2004 from Denis Papineau, Industry
    Canada, to Tracy Simmons.

[^9]: *See* USA: *Treaties and Other International Acts Series* (TIAS)
    5205; CAN: *Canada Treaty Series* (CTS) 1962 No. 15. *Agreement
    Between the United States of America and Canada Revising the
    Technical Annex to the Agreement of October 24, 1962* (TIAS 5205/CTS
    1962 No. 15), Effected by Exchange of Notes at Ottawa, Canada, June
    16 and 24, 1965. Entered into force June 24, 1965. USA: TIAS
    5833/CAN: CTS 1962 No. 15, as amended June 24, 1965 (U.S-Canada
    Agreement). We note that most of the affected Union Gas stations
    were coordinated prior to the licensing of Station WPWH301: Station
    XNG530 was coordinated on September 4, 1969 (serial no. 69-571).
    Stations VEK855 and VEK839 were coordinated on February 20, 2001
    (serial nos. 011814 and 011815). Station XNG592 was coordinated on
    March 17, 2001 (serial no. 81-489). Station VEK839 was coordinated
    on March 28, 2003 (serial no. 033302).

[^10]: The U.S-Canada Agreement allows stations in the border area to
    operate at a maximum of 5 watts ERP without coordination. *See*
    U.S.-Canada Agreement at § 4(a) (indicating that coordination with
    Canada is only necessary for applications involving an ERP in excess
    of 5 watts). We note that Canada rejected coordination of Station
    WPWH301 with higher power limits. *See* comments of Industry Canada
    on April 27, 2001 and October 10, 2002 rejecting the proposed
    coordination of Pfeiffer's station (Serial No. 2000116289).

[^11]: 47 C.F.R. § 90.173(b).

[^12]: *Id.*

[^13]: 47 U.S.C. § 316(a)(1).

[^14]: *Id*.

[^15]: 47 C.F.R. § 1.87(a).

[^16]: The address for FCC locations should be used only for documents
    filed by United States Postal Service first-class mail, Express
    Mail, and Priority Mail. Hand-delivered or messenger-delivered
    documents for the Commission\'s Secretary are accepted only at our
    new location at 236 Massachusetts Avenue, N.E., Suite 110,
    Washington, D.C. 20002. Other messenger-delivered documents,
    including documents sent by overnight mail (other than United States
    Postal Service, Express Mail, and Priority Mail) should be addressed
    for delivery to 9300 East Hampton Drive, Capitol Heights, MD 20743.
    *See* FCC Announces a New Filing Location for Paper Documents and a
    New Fax Number for General Correspondence, *Public Notice*, 16 FCC
    Rcd 22165 (2001).