University of California, Davis

Business Contracts Department

202 Cousteau Place, Suite 205

Davis, CA 95618-7761

Attn: Arthur R. Silen

Re: Waiver of Section 90.259(a)(3) of the Commission's Rules

Dear Mr. Silen:

This letter responds to your July 24, 2007 letter on behalf of the
University of California, Davis (UC Davis) regarding operation of a
wireless audience response system---consisting of a radio transceiver
unit and fifty hand-held broadcasting keypads for transmitting audience
responses---on frequency 216.0125 MHz.[^1] You indicate that UC Davis
has been using the system without a Commission license, and that the
Commission's Universal Licensing System will not permit you to file an
appropriate application. For the reasons set forth below, we hereby
grant UC Davis a waiver of Section 90.259(a)(3) of the Commission's
rules[^2] to permit the filing of an application for a new license for
the system.

By way of background, the 216-217 MHz band previously was available to
Part 90 Industrial/Business Pool licensees for telemetering operations,
and was shared on a secondary basis by the Part 95 Low Power Radio
Service (LPRS).[^3] In 2002, however, the Commission elevated the LPRS
from secondary to primary status.[^4] Consequently, the Commission
prohibited new applications for non-LPRS operations in the band in order
to protect LPRS operations from interference, but it grandfathered
incumbent telemetering licensees.[^5] The prohibition on new
applications is codified in Section 90.259(a)(3).

You state that UC Davis purchased a low-power radio frequency system for
obtaining and tabulating audience participation and opinion
approximately ten years ago, but inadvertently failed to file a license
application. As a result of recent attempts to license the system, UC
Davis discovered that no applications for new 216-217 MHz band frequency
assignments are being accepted.

You ask whether a license is still required for the system, or whether
UC Davis may use the system without a license pursuant to the LPRS
rules. We conclude that the system may not be operated pursuant to the
LPRS rules, because audience response reporting is not currently one of
the permissible uses of LPRS frequencies.[^6]

We note that UC Davis would be authorized to operate the system if it
had submitted an application when it first purchased the system, and its
license would be grandfathered and renewable indefinitely. We also note
that we have received no complaints of interference to LPRS operations
attributable to UC Davis's system.[^7] Consequently, on our own motion,
we grant UC Davis a waiver pursuant to Section 1.925 of the Commission's
rules,[^8] to permit UC Davis to file an application for a new license
for the system. Under the circumstances presented, the underlying
purpose of Section 90.259(a)(3) would not be served by denying UC Davis
the opportunity to license its pre-2002 system.[^9]

We note that our action here is without prejudice to further inquiry and
action by the Commission\'s Enforcement Bureau in connection with UC
Davis's unauthorized operation of the system.

Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 309 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
and Section 1.925 of the Commission\'s rules, 47 C.F.R. § 1.925, Section
90.259(a)(3) of the Commission's rules, 47 C.F.R. § 90.259(a)(3), IS
WAIVED to permit the University of California, Davis, to file an
application for a new license to operate its existing audience response
system on frequency 216.0125 MHz, and that such application SHALL BE
PROCESSED in accordance with this action and the Commission's rules.

This action is taken under delegated authority pursuant 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]: Letter from Arthur R. Silen, Analyst, University of California,
    Davis to Office of the General Counsel, Federal Communications
    Commission dated July 24, 2007.

[^2]: 47 C.F.R. § 90.259(a)(3).

[^3]: *See* 47 C.F.R. §§ 2.106, 90.259, 95.629 (2001).

[^4]: Reallocation of the 216-220 MHz, 1390-1392 MHz, 1427-1429 MHz,
    1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz
    Government Transfer Bands, *Report and Order and Memorandum Opinion
    and Order,* ET Docket No. 00-221, 17 FCC Rcd 368, 377 ¶ 19 (2002).

[^5]: *Id.* at 380 ¶ 26 ("While it would not be equitable to force
    incumbent operations to relocate, we believe that we should no
    longer accept new applications in order to protect LPRS devices.").

[^6]: *See* 47 C.F.R. § 95.1009. We note that the equipment was type
    accepted only under Part 90, and is not approved for use under Part
    95. *See* Grant of Equipment Authorization FBR5FKRSPTX-1 (Apr. 26,
    1989).

[^7]: Indeed, given that UC Davis presumably operates the system, which
    operates at quite low power, within an enclosed room on campus, any
    such interference would likely be only to UC Davis's own LPRS
    operations.

[^8]: 47 C.F.R. § 1.925(b)(3).

[^9]: *Cf.*, *e.g.*, Disneyland Resort, *Order*, 21 FCC Rcd 536, 539 ¶ 9
    (WTB PSCID 2006) (granting waiver of filing freeze to permit
    application for new license for facility for which the license
    inadvertently was allowed to expire).