Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Applications of | *  | File Nos. 0002864440,        |
|                                  | *) | 0002919013                   |
| NATIONAL SCIENCE AND TECHNOLOGY  | ** |                              |
| NETWORK, INC.                    |    |                              |
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| Consolidated Petition to Deny    | *) |                              |
| Filed by the City of El Segundo, | ** |                              |
| California                       |    |                              |
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| Request for Enforcement Action   | *) |                              |
| and License Modification for     | ** |                              |
| WQAD318, City of El Segundo, Due |    |                              |
| to Non-Construction and          | *  |                              |
| Non-Operation                    | *) |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: April 4, 2008 Released: April 7, 2008**

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

1.  *Introduction*. In this *Order on Reconsideration*, we address a
    petition (Petition)[^1] filed on July 19, 2007 by National Science
    and Technology Network, Inc. (NSTN) for reconsideration of a June
    27, 2007 *Order.*[^2] The *Order*[^3] granted a petition filed by
    the City of El Segundo (El Segundo) to deny NSTN's above-captioned
    applications for authority to operate new trunked
    Industrial/Business Pool stations on, *inter alia*, frequency pairs
    472/475.5250 MHz at Corona, California,[^4] and 471/474.3500 MHz at
    Rancho Palos Verdes and Glendale, California.[^5] We also address
    NSTN's July 24, 2007 Request for Enforcement Action and License
    Modification for WQAD318, City of El Segundo, Due to
    Non-Construction and Non-Operation (Request for Enforcement
    Action).[^6] For the reasons stated below, we deny both the Petition
    and the Request for Enforcement Action.

2.  *Background*. NSTN's applications sought authority to operate on
    12.5 kHz "offset" channels in the 470-512 MHz band. El Segundo
    objected to NSTN's applications, asserting that NSTN's proposed
    operations would not provide the required interference protection to
    El Segundo's operations on frequency pairs 471/474.3375 MHz and
    472/475.5375 MHz under Call Sign WQAD318. Specifically, El Segundo
    asserted that the applications did not satisfy the interference
    protection criteria of TIA/EIA/TSB-88 (TSB-88).[^7] The *Order*
    concluded that a TSB-88 analysis was required because there was
    spectral overlap between El Segundo's licensed operations and NSTN's
    proposed operations, and that NSTN's proposed operations did not
    satisfy the TSB-88 criteria.[^8] The *Order* also rejected NSTN's
    contention, for which NSTN offered no documentation or support, that
    Station WQAD318 was not entitled to protection because the
    facilities were not timely constructed.[^9]

3.  On July 19, 2007, NSTN filed the instant Petition.[^10] NSTN
    disputes the *Order*'s conclusion that there is spectral overlap
    between Station WQAD318 and NSTN's proposed operations. It asserts
    that there is overlap neither in fact nor under the standard set
    forth in Section 90.187(b)(2) of the Commission's Rules,[^11] which
    NSTN contends governs the instant matter rather than TSB-88.[^12]
    NSTN also argues that the *Order* is not in the public interest
    because it conflicts with the Commission's policy to encourage
    transition from 25 kHz to 12.5 kHz operation.[^13]

4.  NSTN also argues that El Segundo's license for Station WQAD318 must
    be cancelled due to non-construction or discontinuance of
    operation,[^14] and now offers documentation in support of its
    allegations.[^15] Because the Petition and the Request for
    Enforcement Action[^16] set forth essentially the same information
    regarding the construction and operational status of Station
    WQAD318, we will address both pleadings herein in the interest of
    administrative efficiency.

5.  *Discussion*. [Spectral overlap and related issues.]{.underline} We
    conclude that the *Order* correctly found that there is spectral
    overlap from NSTN's proposed operations on 12.5 kHz offset channels
    (with an occupied bandwidths of 11.25 kHz) on center frequencies
    12.5 kHz removed from El Segundo's 25 kHz channels (with an occupied
    bandwidth of 20 kHz).[^17] NSTN asserts that there is no spectral
    overlap because 12.5 kHz and 25 kHz channels do not actually occupy,
    respectively, 11.25 kHz and 20 kHz.[^18] Rather, according to NSTN,
    12.5 kHz channel stations and 25 kHz channel stations modulate
    approximately plus or minus 2.5 kHz and 5 kHz, respectively, from
    the center frequency, and beyond that range the applicable emission
    mask "requires the transmitter to roll off the modulation so that
    the power level is severely attenuated, and is not usable nor
    necessary for communications."[^19] NSTN is incorrect. The necessary
    bandwidth is reflected in the emission mask,[^20] rather than in
    some smaller number for which NSTN provides no support or authority.

6.  NSTN also argues that its proposed operations should not be deemed
    to overlap El Segundo's spectrum because Section 90.187(b)(2)
    affords protection only to stations with center frequencies 7.5 kHz
    or less removed from a proposed 12.5 kHz station.[^21] We note,
    however, that the Section 90.187(b)(2) definition of "affected
    licensee" expressly relates only to analyzing applications under
    Section 90.187, which sets forth the standards for determining
    whether a 150-174 MHz or 421-512 MHz band applicant will be required
    to monitor the proposed frequency.[^22] This is a separate
    requirement from TSB-88, which is used to determine whether an
    applicant for 12.5 kHz "offset" channels in the 470-512 MHz band
    will cause impermissible interference. Applications to which both
    Section 90.187 and TSB-88 apply must satisfy both standards.[^23]
    The *Order* thus correctly concluded that NSTN was required to
    satisfy the interference protection criteria of TSB-88.

7.  NSTN also argues that the *Order* is not in the public interest and
    conflicts with the Commission's rules[^24] requiring 25 kHz private
    land mobile radio licensees to transition to more efficient
    equipment by 2013.[^25] We disagree. While the Commission has
    mandated migration to more efficient technology, it did not intend
    to disadvantage the incumbent licensees still operating on 25 kHz
    channels.[^26] The narrowbanding mandate is thus not grounds to
    reduce 25 kHz licensees' privileges prior to the mandatory migration
    date.[^27]

8.  [El Segundo Station WQAD318.]{.underline} We are unpersuaded by
    NSTN's argument that El Segundo's authorization for Station
    WQAD318's Corona, Glendale, Rolling Hills, and Whittier, California
    facilities must be cancelled due to non-construction or
    discontinuance of operation.[^28] NSTN proffers correspondence[^29]
    from the manager of the Corona site to demonstrate that the facility
    was deconstructed when the Los Angeles County Metropolitan
    Transportation Authority (LACMTA) assigned the authorizations to El
    Segundo pursuant to a partial assignment of LACMTA's license for
    Station KUP236.[^30] NSTN asserts, without evidentiary support, that
    LACMTA also deconstructed the Glendale, Rolling Hills, and Whittier
    sites at that time.[^31] In response, El Segundo states that the
    Corona, Glendale, Rolling Hills, and Whittier sites were
    reconstructed after the authorizations were assigned,[^32] and
    submits supporting declarations from the site operators.[^33] After
    NSTN questioned why El Segundo did not provide lease documents,
    invoices for site rental, or canceled checks, which "would have . .
    . ma\[d\]e their case ironclad,"[^34] El Segundo submitted invoices
    and canceled checks.[^35] We conclude that the documents provided by
    El Segundo adequately refute NSTN's allegations regarding the
    construction and operation of Station WQAD318's facilities.

9.  NSTN also requested that the Enforcement Bureau monitor and inspect
    the facilities of Station WQAD318.[^36] The Enforcement Bureau's
    field office in Los Angeles has conducted periodic monitoring of
    Station WQAD318, and heard communication activity between
    dispatchers and police officers.

10. In summary, the *Order* correctly found that NSTN was required to
    satisfy the interference protection criteria of TSB-88 because there
    is spectral overlap between its proposed operations and El Segundo's
    licensed operations. We also conclude that NSTN has not demonstrated
    that El Segundo's license for Station WQAD318 has terminated for
    failure to construct or discontinuance of operation. Consequently,
    we deny the Petition and the Request for Enforcement Action.

11. Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
    and Section 1.106 of the Commission\'s Rules, 47 C.F.R. § 1.106,
    that the Petition for Partial Reconsideration submitted by National
    Science and Technology Network, Inc. on July 19, 2007 IS DENIED.

12. IT IS FURTHER ORDERED pursuant to Section 4(i) of the Communications
    Act of 1934, as amended, 47 U.S.C. § 154(i), and Section 1.41 of the
    Commission\'s Rules, 47 C.F.R. § 1.41, that the Request for
    Enforcement Action and License Modification for WQAD318, City of El
    Segundo, Due to Non-Construction and Non-Operation filed by National
    Science and Technology Network, Inc. on July 24, 2007 IS DENIED.

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
>
> Scot Stone

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: Petition for Partial Reconsideration (filed July 19, 2007)
    (Petition).

[^2]: National Science and Technology Network, Inc., *Order,* 22 FCC Rcd
    11538 (WTB MD 2007) (*Order*).

[^3]: *Id.* at 11540 ¶ 6.

[^4]: FCC File No. 0002864440 (filed Dec. 29, 2006).

[^5]: FCC File No. 0002919013 (filed Feb. 20, 2007).

[^6]: Letter dated July 18, 2007 from Alan M. Lurya, Esq., counsel for
    NSTN, to Scot Stone, Deputy Chief, Mobility Division, Wireless
    Telecommunications Bureau, and Catherine Deaton, District Director,
    Western Region, Enforcement Bureau (filed July 24, 2007) (Request
    for Enforcement Action). NSTN filed a "First Status Report to
    Commision on Investigation of El Segundo's Failure to Construct and
    Operate Certain Locations" (First Status Report) on October 11,
    2007, and a "Second Status Report to Commission on Investigation of
    El Segundo's Failure to Construct and Operate Certain Location and
    Supplement to Request for Commission Action" (Second Status Report)
    on November 28, 2007.

[^7]: *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, Land Mobile Communications Council
    (LMCC), to Daniel B. Phythyon, Esq., Acting Chief, Wireless
    Telecommunications Bureau (Sept. 10, 1997) (LMCC Consensus)). The
    LMCC Consensus was submitted by the LMCC in response to the
    Commission's direction that the private land mobile radio service
    coordinators reach a consensus on the applicable coordination
    procedures for the 12.5 kHz offset channels in the 470-512 MHz
    frequency band. *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).

[^8]: *See Order,* 22 FCC Rcd at 11539 ¶ 3. 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. *See* LMCC
    Consensus, Attachment at 2.

[^9]: *See Order,* 22 FCC Rcd at 11539 ¶ 4.

[^10]: El Segundo filed an opposition on August 1, 2007 (Opposition).
    NSTN filed a reply on August 10, 2007 (Reply). El Segundo filed a
    response to NSTN's reply on October 2, 2007 (Surreply). (Because the
    Reply raised new factual issues regarding the Opposition, we grant
    El Segundo's request for leave to file the Surreply.) Mobile Relay
    Associates and Raycom filed "Comments in Support of the Response of
    El Segundo" (MRA Comments) on October 4, 2007.

[^11]: 47 C.F.R. § 90.187(b)(2).

[^12]: *See* Petition at 2-8.

[^13]: See *id.* at 8-11.

[^14]: *See* 47 C.F.R. §§ 90.155, 90.157.

[^15]: *See* Petition at 11-14.

[^16]: *See* Request for Enforcement Action at 1-2.

[^17]: *See*, *e.g.*, National Science and Technology Network, Inc.,
    *Order*, 23 FCC Rcd 4096, 4097 ¶ 4 (WTB MD 2007), *recon. pending*;
    National Science and Technology Network, Inc., *Order on
    Reconsideration*, 22 FCC Rcd 18644, 18646 ¶ 6 (WTB MD 2007)
    (*NSTN*), *recon. pending*.

[^18]: *See* Petition at 3-4.

[^19]: *See id.* at 3. NSTN asserts that "\[t\]he FCC and the industry
    have confused 'channel spacing' with 'occupied bandwidth.'" *See
    id.* at 3 n.5.

[^20]: *See* 47 C.F.R. § 2.201(a). Moreover, the necessary bandwidth "is
    not the only characteristic of an emission to be considered in
    evaluating the interference that may be caused by that emission." 47
    C.F.R. § 2.202(d).

[^21]: *See* Petition at 2, 6-8.

[^22]: *See* 47 C.F.R. § 90.187(b)(2). Such monitoring is not required
    if the applicant has exclusive use of the frequency, or obtains
    written consent from all "affected licensees," as defined in Section
    90.187. *See* 47 C.F.R. § 90.187(b)(1), (2).

[^23]: We thus disagree with El Segundo's assertion, *see* Opposition at
    4-8, that Section 90.187(b)(2) does not apply to the 470-512 MHz
    band. *See NSTN*, 22 FCC Rcd at 18647 ¶ 8. We have found TSB-88 to
    be applicable in numerous cases where the separation between the
    proposed operations and the incumbent was greater than 7.5 kHz.
    *See, e.g.,* Pappamal Wellington Kurian, *Order of Modification*, 22
    FCC Rcd 20965, 20965-65 ¶¶ 3-4 (WTB MD 2007); *NSTN*, 22 FCC Rcd at
    18646 ¶ 6*;* License Communications Services, Inc., *Order Proposing
    Modification,* 22 FCC Rcd 17596, 17597 ¶ 7 (WTB MB 2007), *protest
    pending*; *see also* University of Southern California, *Order,* 19
    FCC Rcd 23155, 23156 ¶ 4 (WTB PSCID 2004) (agreeing with NSTN that
    an applicant proposing operations on 12.5 kHz offset channels on
    center frequencies 12.5 kHz removed from the center frequency of
    NSTN's 25 kHz channels was required to satisfy TSB-88).

[^24]: *See* 47 C.F.R. § 90.209(b)(5) n.3; Implementation of Sections
    309(j) and 337 of the Communications Act of 1934 as Amended;
    Promotion of Spectrum Efficient Technologies on Certain Part 90
    Frequencies, *Second Report and Order and Second Further Notice of
    Proposed Rule Making and Order,* WT Docket No. 99-87, RM-9332, 18
    FCC Rcd 3034, 3038 ¶ 12 (2003).

[^25]: *See* Petition at 8-9.

[^26]: In fact, to allow such incumbent licensees increased flexibility
    in their migration, the Commission extended the deadline for the
    acceptance of new applications for new operations using 25 kHz
    channels, and for modification of operations that expand the
    authorized contour of such stations, from January 13, 2004 to
    January 1, 2011. *See* Implementation of Sections 309(j) and 337 of
    the Communications Act of 1934 as Amended; Promotion of Spectrum
    Efficient Technologies on Certain Part 90 Frequencies, *Third
    Memorandum Opinion and Order*, *Third Further Notice of Proposed
    Rule Making and Order,* WT Docket No. 99-87, RM-9332, 19 FCC Rcd
    25045, 25046 ¶ 2 (2004).

[^27]: *See* Association of American Railroads, *Order*, 22 FCC Rcd
    1304, 1308-09 ¶ 9 (WTB MD 2007) (denying request for waiver that
    would grant railroads exclusive access to spectrum shared with other
    industries in order to facilitate the railroads' transition to 12.5
    kHz operations).

[^28]: *See* Petition at 12-14. The Petition does not challenge the
    construction or operational status of Station WQAD318's Malibu
    facility. *See id.* at 13; Reply at 3 n.2. *But see* Second Status
    Report at 4 (requesting an inquiry regarding the facility).

[^29]: *See* Petition at Exhibit E (Electronic mail message dated July
    13, 2007 from Barry Permenter, Orange County Sheriff's
    Department/Real Property Services, to Alan Lurya). El Segundo
    objects to the consideration of this evidence on reconsideration
    because it was not presented earlier in the proceeding. *See*
    Opposition at 10 (citing 47 C.F.R. § 1.106(c)). We agree with NSTN,
    *see* Reply at 5, that the correspondence may be considered because
    NSTN could not obtain the information sooner. *See* 47 C.F.R. §
    1.106(b)(2)(ii), (c)(1). We also note that, regardless of whether
    the correspondence is admissible in connection with the Petition, it
    may be considered in connection with the Request for Enforcement
    Action.

[^30]: *See* FCC File Nos. 0001613534 (filed Feb. 19, 2004) (assignment
    application), 0001727015 (filed May 6, 2004) (consummation
    notification).

[^31]: *See* Petition at 13-14.

[^32]: *See* Opposition at 10-11. El Segundo explains that it did not
    file construction notifications when it reconstructed the sites
    because the Commission does not require assignees to file
    construction notifications for facilities for which the assignor had
    filed notifications. *See id.*

[^33]: *See* Opposition at Exhibits A (Letter dated July 27, 2007 from
    James A. Kay, Jr., Lucky's Two Way Radios, to Federal Communications
    Commission, stating that the Corona site has been operational since
    March 2005) and B (Letter dated July 30, 2007 from Mark J. Abrams,
    Mobile Relay Associates, to Federal Communications Commission,
    stating that the Glendale, Rolling Hills, and Whittier sites have
    been operational since April 2005).

[^34]: *See* Reply at 3, 4.

[^35]: *See* Surreply at Exhibits 2-5. While the invoices and canceled
    checks do not specifically refer to El Segundo, MRA confirms that
    they relate to the instant matter. *See* MRA Comments at 2-3. We
    disagree with NSTN's suggestions that because they are not official
    documents of the city, were not in the El Segundo's possession, and
    do not list it as a party, the documents are insufficient to
    demonstrate that the facilities were constructed. *See* First Status
    Report at 3; Second Status Report at 2-4. Any purported conflict
    with El Segundo's Municipal Code or other applicable procedures for
    entering into contractual relationships, disbursement of the
    municipal funds, and recordkeeping is irrelevant to the question of
    whether the facilities are constructed and operational. Nor do we
    believe that the "irregularities" in the documents identified by
    NSTN discredit their authenticity. *See* First Status Report at 3-4.
    For example, the fact that the deposit stamp on one of the checks
    lists "Downey National Bank," which ceased doing business under that
    name in 1999, only means that the depositor continued to use its
    previously issued endorsement stamp after the name change.

[^36]: *See* Request for Enforcement Action at 2; Reply at 3.