**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FCC File No. 0000998539      |
|                                  | *) |                              |
| Request for Waiver by Midport    | ** |                              |
| Electronics, Inc. to Allow       |    |                              |
| Operation on Frequencies in the  | *  |                              |
| 421-430 MHz Band in the Detroit, | *) |                              |
| Michigan Area                    | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: July 28, 2004 Released: August 5, 2004**

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

# Introduction

1.  In this *Order*, we address an application and accompanying request
    for waiver of the Commission's Rules filed by Midport Electronics,
    Inc. ("Midport")[^1] seeking authorization to operate on certain
    frequencies in the 421-430 MHz band,[^2] beyond 50 miles of the
    geographic center of Detroit, Michigan. For the reasons stated
    herein, we grant the waiver request.

# Background

2.  On August 15, 2002, Midport filed an application for authorization
    to commence land mobile operations on various 421-430 MHz
    frequencies[^3] at a distance of 52.8 miles from the geographic
    center of Detroit, Michigan.[^4] Midport also requested a waiver of
    Section 90.273 of the Commission's Rules[^5] to permit its proposed
    operations.[^6] Section 90.273(c) and (d) of the Commission's Rules
    require that base and control stations and mobiles, respectively,
    operating in the 421-430 MHz frequency band in the vicinity of
    Detroit be located within 80 kilometers (50 miles) of the center of
    the city.[^7] Stations operating within these distance restrictions
    are authorized to transmit at a maximum of 250 watts ERP.[^8]

3.  With its proposed site approximately 53 miles from the center of
    Detroit, Midport proposes to operate at a reduced power of no more
    than 80 watts output power (TPO).[^9] Midport contends that the
    proposed service area would be equivalent to, or less than, the
    geographic area served if its proposed station were to operate at 90
    watts TPO within the 50-mile geographic restriction area.[^10]
    Consequently, Midport requests a waiver of Section 90.273(c) of the
    Commission's Rules.[^11]

4.  Midport argues that grant of the requested waiver would not
    undermine the fundamental purpose served by Section 90.273(c).[^12]
    Midport states that the rule was adopted "to provide for the most
    intensive use possible of this spectrum by land mobile entities
    throughout the Buffalo, Detroit, and Cleveland areas."[^13] Midport
    states that grant of the requested waiver would result in more
    extensive land mobile usage, and would make its land mobile service
    available, at no cost, to various charitable agencies and
    organizations in Ohio, such as the American Red Cross, food banks,
    and kitchens for the homeless.[^14] Midport also submits that a
    secondary purpose of the rule is to avoid unduly impeding operations
    in the Amateur Radio Service.[^15] Midport indicates that its
    proposed station location would constitute a mere *de minimis*
    extension of the 50-mile standard.[^16] Coupled with its proposed
    reduced output power and its distance from authorized Amateur
    stations in the Detroit area, Midport contends that there would be
    no adverse impact on stations in the Amateur Radio Service.[^17]

5.  On January 15, 2003, the former Public Safety & Private Wireless
    Division, Wireless Telecommunications Bureau issued a *Public
    Notice* seeking comment on Midport's proposal.[^18] On February 14,
    2003, Futronics, Inc. (Futronics) filed comments opposing Midport's
    Request.[^19] Futronics suggests that Midport's Request presumably
    must be premised on a factual demonstration that it is not possible,
    or would be unduly burdensome, for Midport to operate its system in
    conformance with the Commission's Rules.[^20] In its comments,
    Futronics argues that Midport has not made a sufficient showing as
    to why it cannot operate its system within the permitted 50-mile
    area.[^21] Therefore, Futronics argues, Midport's Request should be
    denied.[^22] Futronics also suggests that it would be a novel
    interpretation of the Commission's waiver standard if a party were
    to establish good cause for waiver relief on the basis that it had
    filed an application with erroneous site information and had
    operated at that site illegally for some period of time, but now
    needed a waiver to validate the illegal operation.[^23] Futronics
    asserts that Midport does not show that its customers would not be
    served from a permissible location, but, rather, Midport's entire
    showing addresses its claim that the waiver relief requested would
    not have an adverse impact on amateur operations in the area.[^24]
    Such assertion, Futronics contends, would only have been relevant if
    the Commission determined that Midport had presented some compelling
    rationale for a deviation from the Commission's Rules.[^25] However,
    Futronics contends that Midport does not present unique or unusual
    factual circumstances that would render application of the rule
    inequitable, unduly burdensome or contrary to the public interest,
    or that Midport has no reasonable alternative.[^26]

6.  Futronics states that the *Report and Order* adopting the 50-mile
    rule does not provide for a waiver of the distance requirement, and
    that Futronics's research did not identify any instance in which the
    Commission had waived this 50-mile area requirement.[^27]
    Additionally, Futronics contends that the public interest would not
    be served by granting the Request under the circumstances presented
    because the spectrum beyond the 50-mile geographic area center of
    Detroit is allocated on a primary basis to Federal Government
    radiolocation operations[^28] pursuant to an agreement between the
    Commission and the National Telecommunications and Information
    Administration (NTIA).[^29] Futronics points out that the Commission
    previously rejected proposals to allow for land mobile operations
    outside the 50-mile area because it would conflict with the
    Government Radiolocation allocation.[^30] Additionally, Futronics
    notes that non-government stations may only be authorized to use
    Federal Government frequencies above 25 MHz if the Commission finds,
    after consultation with the appropriate government agency, that such
    use is necessary for coordination of government and non-government
    activities.[^31] In this connection, Futronics observes that there
    is no indication that such consultation has been initiated or that
    it would likely be successful.[^32] Further, Futronics suggests that
    NTIA and other governmental entities are unlikely to permit use of
    these frequencies for purposes other than national defense and
    homeland security.[^33]

7.  On March 3, 2003, Midport filed reply comments.[^34] With regard to
    Futronics' assertion that Midport has failed to make a showing as to
    why it cannot operate within the 50-mile area, Midport notes that
    according to some distance calculation programs, such as Javanet,
    Midport's proposed station location is within 50 miles of
    Detroit.[^35] Additionally, Midport suggested that although the
    *Report and Order* that adopted the 50-mile distance requirement did
    not provide a waiver standard, such an omission is of no
    consequence, as Commission rulemaking proceedings typically do not
    provide for waivers, given that the permissibility of waivers is
    addressed in Section 1.925 of the Commission's Rules.[^36]

8.  Midport observes that when the Commission adopted the rules for use
    of the 421-430 MHz band in Detroit, the Commission had considered
    whether the rules would be unduly restrictive on land mobile
    operations.[^37] In that proceeding, land mobile commenters
    suggested that the Commission permit the operation of base and
    control stations anywhere within the 50-mile radius subject to
    certain technical requirements to control interference and that the
    Commission, in fact agreed with this proposal.[^38] Midport states
    that its proposal to operate with no more than 80 watts TPO is
    consistent with such an approach.[^39]

9.  Midport states that the Commission expressed no concern regarding
    the potential for interference from land mobile systems to U.S.
    Government operations, and only identified interference potential
    from Federal Government operations to land mobile systems.[^40] In
    fact, Midport contends, the Commission stated that "pursuant to an
    agreement between the Commission and NTIA," land mobile use of the
    421-430 MHz band is subject to accepting interference from U.S.
    Government radiolocation operations.[^41] Further, Midport observes
    that Futronics has presented no evidence to demonstrate that
    locating a base station approximately 53 miles from the geographic
    center creates a more significant interference threat to homeland
    security than a station located 49.9 miles from Detroit's geographic
    center.[^42] Absent evidence of harmful interference, Midport states
    that granting the instant waiver request would not only be
    consistent with the underlying purpose of Section 90.273(c), but
    also would provide Midport the operational flexibility to locate its
    base and control stations through the Detroit metropolitan
    area.[^43]

# Discussion 

10. The Commission is responsible for the licensing of radio frequencies
    to non-Government entities,[^44] and the NTIA is responsible for the
    licensing of radio frequencies to Federal Government departments and
    agencies. As a general matter, the shared use of frequencies with
    the Federal Government requires coordination with, and the
    concurrence of, the Federal Government. With regard to the 421-430
    MHz band, the shared use of this band by both private land mobile
    radio services and the Government Radiolocation service is made
    permissible by an agreement resulting from discussions between the
    Commission and the NTIA.[^45] The NTIA has agreed to allow the
    United States portion of this band to be used for non-Government
    purposes in the Buffalo, Detroit, and Cleveland areas, while
    retaining the primary United States allocation for Radiolocation in
    regions outside of the areas of these three cities.[^46] By way of
    clarification, we note that our grant of authority herein related to
    Midport's proposed use of the 421-430 MHz band is made subject to
    NTIA's approval.

## Waiver Standard 

11. A request for a rule waiver in the Wireless Telecommunications
    Services may be granted if it is shown that (a) the underlying
    purpose of the rule will not be served or would be frustrated by its
    application in the particular case, and that grant of the waiver is
    in the public interest; or (b) the unique facts or unusual
    circumstances of a particular case render application of the rule
    inequitable, unduly burdensome, or otherwise contrary to the public
    interest, or the applicant has no reasonable alternative.[^47]
    Alternatively, pursuant to Section 1.3 of the Commission's Rules,
    the Commission has authority to waive its rules if there is "good
    cause" to do so.[^48] While Futronics argues that no provision for a
    waiver is provided in the *Report and Order* establishing the
    defined 50-mile area within which the subject frequencies may be
    assigned, we agree with Midport that rulemaking proceedings
    typically do not include specific provisions for a waiver of the
    rules being adopted because Section 1.925 of the Commission's Rules
    already provides a standard for waiver of rules. Additionally, Part
    1, Subpart F of the Commission's Rules establishes the requirements
    and conditions under which entities may be licensed in the Wireless
    Radio Services as described in Part 90, including the applicable
    waiver standard codified at 47 C.F.R. § 1.925.[^49]

12. Midport argues that grant of its Request is warranted under the
    first prong of Section 1.925(b)(3), on grounds that denial of its
    Request would frustrate the underlying purpose of Section
    90.273.[^50] As discussed more fully below, we conclude that Midport
    has made a sufficient showing that grant of the requested waiver is
    warranted. Specifically, we conclude that the underlying purpose of
    the subject rule would not be served by application to the instant
    case, and that grant of the requested waiver would be in the public
    interest. In this regard, we note that Midport is only required to
    satisfy one prong of Section 1.925.[^51] Because we find that
    Midport's waiver request satisfies the first prong of the applicable
    waiver standard, we need not address whether unique or unusual
    circumstances exist, whether application of the rules would be
    inequitable or unduly burdensome, or whether no reasonable
    alternative exists, since such condition(s) constitute the
    prerequisite to relief under the second prong of the Commission\'s
    waiver standard.[^52]

## Underlying Purpose 

13. In light of the record in this proceeding and our analysis thereof,
    we believe that a waiver of Section 90.273(c) of the Commission\'s
    Rules would further the underlying purpose to the Commission's
    50-mile distance limitation. In adopting the 50-mile limit, the
    Commission wanted to provide for the most intensive use possible of
    this spectrum by land mobile entities throughout the Buffalo,
    Detroit, and Cleveland areas, while minimizing interference
    potential.[^53] The Commission recognized the contributions of the
    Amateur Radio Service, and did not wish to unduly impede amateur
    radio operations.[^54] In balancing these objectives, the Commission
    noted that the relationship between land mobile and amateur
    operations varies among the three urban areas. In view of the above,
    the Commission believed it appropriate to tailor its rules
    concerning allowable locations for base and control stations to best
    fit the situation that exists in each of the three areas.[^55] In
    Detroit, the Commission believed maximum flexibility in locating
    base and control stations could be provided with little or no
    potential for conflict between land mobile and amateur
    operations.[^56] Accordingly, the Commission allowed base or control
    stations to be located anywhere within a 50-mile radius of
    Detroit.[^57] Even with this additional flexibility, land mobile
    base and control stations in the Detroit area, the Commission
    observed, will be at least 40 miles from the nearest amateur
    station.[^58]

14. We find that requiring Midport to operate within the specified
    50-mile area limit under the circumstances presented to be
    unnecessary. Midport's proposed land mobile radio operations are
    intended to facilitate more extensive use of the spectrum and
    provide service. Additionally, Midport's proposed operation with a
    reduced antenna height and output power than that permitted under
    the Commission's Rules, if authorized, would decrease the risk of
    interference to amateur operations when compared to licensees'
    operations at the edge of the 50-mile area and at the maximum
    permissible antenna height and output power. Additionally, the NTIA
    does not oppose the grant of Midport's waiver request to locate a
    base station outside the 50-mile zone provided Midport utilizes a
    four-meter antenna, limits its output power to eighty watts, and
    accepts a condition on its license prohibiting modification to raise
    the proposed antenna height and output power. With these conditions,
    we conclude that it is not necessary to require Midport to locate
    its base station within the 50-mile zone to avoid interference to
    amateur operations, as Midport proposes to essentially confine its
    operations to an area equivalent to the maximum service area
    allowable under the Commission's rules. A waiver appears warranted
    under these circumstances because the purpose underlying the 50-mile
    rule would not be served by applying it to Midport when it is
    unlikely that either amateur or Federal Government licensees would
    experience interference from its proposed operations, as modified by
    the aforementioned conditions.

15. We also note a discrepancy between the 80 watts TPO proposed by
    Midport in the Request on the one hand, and the 90 watts TPO and 250
    watts ERP it proposed in its Application on the other.[^59] Because
    Midport seeks to operate outside of the 50-mile circle around
    Detroit, and states that it will reduce its power below 250 watts
    ERP in order to reduce potential interference to other users, we
    will hold Midport to the ERP equivalent of 80 watts TPO, as proposed
    in its Request, rather than the 90 watts TPO and 250 watts ERP
    proposed in its Application.[^60] Using the ratio of 90 watts TPO to
    250 watts ERP to determine the equivalent ERP of 80 watts TPO, we
    determine that the appropriate ERP is approximately 220 watts ERP.
    We therefore limit Midport's base station to 220 watts ERP.

16. Futronics' suggestion that the Commission had previously denied
    requests for larger allocation areas because it would conflict with
    the Federal Government Radiolocation allocation is inapposite.
    Unlike the instant Application, in the matters cited by Futronics,
    the Commission considered requests that sought to expand the land
    mobile allocation in the 421-430 MHz band to include an entire
    state.[^61] Here, Midport seeks only to locate its base station an
    approximately three-mile distance outside of the geographic area
    ordinarily permitted by the 50-mile limit. Furthermore, Midport has
    proposed technical parameters that would essentially confine its
    operations to avoid interference. We also note that the NTIA does
    not oppose Midport's proposal, subject to certain conditions.[^62]

17. Although Futronics contends that it has been unable to find any
    instance in which the Commission has waived Section 90.273's 50-mile
    limitation, we believe that Midport's waiver request is similar to
    that of 470-512 MHz licensees for whom the Commission has granted
    requests for waiver of analogous distance requirements in the
    470-512 MHz band.[^63] To minimize interference potential between
    land mobile and television operations in the 470-512 MHz band,
    Section 90.305 of the Commission's Rules provides that land mobile
    operations must operate subject to certain distance
    requirements.[^64] However, to promote more extensive land mobile
    use of this band in congested spectrum environments, the Commission
    has, in certain instances, waived Section 90.305's distance
    requirement, provided that such land mobile operations limit their
    service area within certain parameters to avoid harmful interference
    to neighboring television operations.[^65] In a similar manner, as
    discussed *infra*, Midport proposes measures to protect neighboring
    operations by reducing power and antenna height in order to confine
    its service area.[^66] Further, Midport's operations will be
    licensed subject to certain conditions, including that of operating
    on a non-interference basis with respect to Federal Government
    operations.[^67]

18. We also disagree with Futronics' argument that it would be a novel
    interpretation of the Commission's waiver standard to grant
    Midport's request.[^68] As noted above, Midport seeks authorization
    with respect to frequencies that had been previously licensed to
    Midport. In this connection, Midport previously requested waiver of
    Section 90.273(c)'s distance requirements to retain these
    frequencies.[^69] However, we dismissed as moot Midport's waiver
    request and underlying application because we found that the
    authorization for those frequencies cancelled automatically.[^70]
    Therefore, we did not reach the merits of Midport's waiver request.
    Additionally, our Part 90 rules generally contemplate that after a
    license terminates, that the previous licensee may file a new
    application for use of those frequencies subject to any service
    specific rules. Indeed, our recently concluded Private Land Mobile
    spectrum audit provides that applicants may file new applications
    and seek to be re-licensed on frequencies that had cancelled
    automatically for failure to construct.[^71] Futronics points to
    nothing in our rules that would bar Midport from filing a new
    application with waiver request setting forth new information to
    justify use of frequencies that had been licensed previously to
    Midport and GRH.[^72] Moreover, as discussed *infra*, Section 1.925
    of the Commission's Rules is the applicable waiver standard in the
    instant matter, and we believe a waiver is appropriate here because
    granting such relief would not disserve the underlying purpose of
    the distance requirement and would better serve the public interest
    than enforcing the requirement.[^73] Indeed, we observe that this
    waiver request is different from the previous request as Midport now
    proposes measures to avoid interference to other users and NTIA
    consents to the grant of this request subject to certain conditions.
    Accordingly, we believe that granting the requested relief is
    consistent with the Commission's rules and licensing policies and
    procedures.[^74]

## Public Interest

19. We also conclude that Midport has shown that grant of the Request
    would be in the public interest. Midport states that there is a need
    for additional telecommunications services in the Detroit area and
    that the only suitable site is located 52.8 miles from the
    geographic center of Detroit.[^75] Indeed, in the *Report and Order*
    allocating the 421-430 MHz band to land mobile operations, the
    Commission noted that the purpose of its action is to help satisfy
    the communications capacity needs of the private land mobile radio
    services in the vicinity of Detroit by allocating portions of the
    421-430 MHz band for land mobile use near this city.[^76] In
    addition, Midport states that it will make its land mobile service
    available, at no cost, to various charitable agencies and
    organizations in Ohio, such as the American Red Cross, food banks,
    and kitchens for the homeless.[^77] We believe that Midport has
    shown that its proposed operation would serve the public interest by
    increasing the availability of communications services near Detroit,
    without resulting in interference to amateur and Federal Government
    operations.

## Other Matters

20. *Section 2.106 footnote US230.* An authorization of Midport's
    proposed operations also requires a waiver of footnote US230 of
    Section 2.106 of the Commission's Rules.[^78] This section provides
    that non-government land mobile service be allocated on a primary
    basis in the bands 422.1875-425.4875 MHz and 427.1875-429.9875 MHz
    within 50-miles of Detroit.[^79] For the reasons stated above with
    regard to Midport's waiver request, we believe that granting Midport
    a waiver of Section US230 would serve the public interest.
    Therefore, we will, on our own motion, waive US230 in order to
    permit Midport's operation.[^80]

# Conclusion

21. We conclude that Midport has made the requisite showing that a
    waiver of the 50-mile distance restriction is warranted under the
    circumstances presented. In order to further ensure that this waiver
    is consistent with the public interest, we will impose the following
    conditions: Midport shall (1) utilize a four-meter antenna, (2)
    limit its output power to 80 watts TPO or its equivalent 220 watts
    ERP, (3) have as a condition on its license be prohibited from any
    modification to raise the proposed antenna height and TPO/ERP,
    and (4) be licensed on a secondary basis to Federal Government
    users. For the reasons stated herein, we therefore grant Midport's
    request for waiver.

# Ordering Clauses

22. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), and
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925 the
    Waiver Request of Midport Electronics, Inc., for waiver of Section
    90.273(c), 47 C.F.R. §§ 90.273(c), is GRANTED to the extent
    described above and, on our own motion, we waive Section 2.106 US
    230 of the Commission\'s Rules, 47 C.F.R. §§ 2.106 US 230.

23. IT IS FURTHER ORDERED, that pursuant to Sections 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), the
    associated license application for frequency pairs in the 421-430
    MHz band, FCC File No. 0000998539, SHALL BE PROCESSED in accordance
    with this *Order*.

24. This action is taken under delegated authority pursuant to Section
    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]: *See* FCC File No. 0000998539 (Application) and accompanying
    waiver request (filed Aug. 15, 2002, amended on Aug. 20, 2002, and
    Jan. 31, 2003) (Request).

[^2]: Midport seeks authorization to operate on the following
    frequencies: 422/427.47500 MHz, 424/429.45000 MHz, and 424/429.55000
    MHz.

[^3]: *See supra,* note 1.

[^4]: *Id.* We note that several of the frequencies on which Midport now
    seeks authorization had been previously authorized to Midport and
    GRH, Associates, Inc., an affiliated entity, under various licenses.
    However, these earlier licenses were cancelled for failure to
    construct or construct in substantial accordance with its
    authorizations, *e.g.,* constructed facilities at an unauthorized
    location. *See* Midport Electronics, Inc., *Order*, 17 FCC Rcd.
    13778 (WTB PSPWD 2002) (*Midport Order*). In its waiver request,
    Midport states that it inadvertently operated on the 421-430 MHz
    band at coordinates 41-39-20.9 N. latitude and 83-31-51.0 W.
    longitude. *See* Request at 1. Midport's current license application
    proposes to operate at essentially the same coordinates: 41-39-21.0
    N. latitude and 83-31-52.0 W. longitude. *See* FCC File No.
    0000998539 (as amended, Jan. 31, 2003).

[^5]: 47 C.F.R. § 90.273.

[^6]: Request at 1.

[^7]: 47 C.F.R. §§ 90.273 (c), (d). The geographic center coordinates
    for Detroit, MI are 42-19-48.1 N. latitude and 83-2-56.7 W.
    longitude. *See* 47 C.F.R. § 90.273 (c).

[^8]: 47 C.F.R. § 90.279(a). We note that while Midport's waiver request
    proposes to operate at 80 watts TPO, Midport's application, however,
    proposes to operate at 90 watts TPO (250 watts ERP). *See* FCC File
    No. 0000998539 (as amended, Jan. 31, 2003).

[^9]: Request at 2.

[^10]: *Id*. Midport proposes to operate mobile units within a 20-mile
    (32 kilometer) radius of coordinates very close to Detroit's
    geographic center (*i.e.* 42-18-48.1 N. latitude and 83-2-56.7 W.
    longitude). *See* FCC File No. 0000998539 (as amended Jan. 31,
    2003).

[^11]: *See* Request at 2.

[^12]: Request at 2.

[^13]: *Id*.

[^14]: *Id*. at 4.

[^15]: *Id*. at 2.

[^16]: *Id*. at 3.

[^17]: *Id*.

[^18]: *See* Wireless Telecommunications Bureau Seeks Comment on Request
    for Waiver by Midport Electronics, Inc. to Allow Operation on
    Frequencies in the 421-430 MHz Band in the Detroit, Michigan Area,
    *Public Notice*, 18 FCC Rcd. 219 (WTB PSPWD rel. Jan. 15, 2003). 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 (Division). *See*
    Reorganization of the Wireless Telecommunications Bureau, *Order*,
    FCC 03-0291, ¶ 2 (rel. Nov. 25, 2003).

[^19]: *See* Futronics Comments at 1.

[^20]: *See id.* at 1-2 *citing* 47 C.F.R. § 1.925(b)(3).

[^21]: Futronics essentially argues that the Commission adheres strictly
    to its rules unless a party can demonstrate that "in the public
    interest the rule should be waived", that the Commission may only
    waive a provision of its rules for good cause shown, and that the
    applicant has the burden of showing good cause for waiver: "an
    applicant \[for a waiver\] faces a high hurdle even at the starting
    gate." *See* Futronics Comments at 6.

[^22]: *Id.*

[^23]: *See id.* at 7. Futronics observes that Midport only states that
    it "inadvertently operated on frequencies in this band at the
    requested location." *Id*. Futronics suggests that presumably the
    Commission would need evidence that Midport has not operated on
    these frequencies subsequent to license cancellation. *Id*.

[^24]: *Id*.

[^25]: *Id.*

[^26]: *Id*.

[^27]: *Id.* at 5-6, *citing* Amendment of the Part 90 of the
    Commission's Rules to Provide for Private Land Mobile Operation in
    the 421-430 MHz Band in Detroit, Cleveland, and Buffalo, *Report and
    Order*, 2 FCC Rcd 825 (1987) (*Report and Order*).

[^28]: *Id.* at 2, 8.

[^29]: *Id*. at 8. *See* Implementation of the Arrangement With Canada
    for Use of the 406.1-430 MHz Band in the Border Areas, and Use of
    the 421-430 MHz Band by Land Mobile Users in Detroit, Cleveland, and
    Buffalo, *Report and Order*, 58 RR 2d 1566, 1567 ¶ 4 (1985).

[^30]: *Id.* at 8. Futronics observed that in commenting in the
    rulemaking proceeding that reallocated this spectrum from the
    Federal Government to land mobile use, land mobile commenters argued
    for a land area larger than a 50-mile radii allocation. *Id*.
    However, the Commission said that while this allocation would not
    conflict with the Canadian Arrangement, it would conflict with the
    other primary allocation in this band, Government radiolocation and,
    therefore, such a requirement was not adopted. *See* *id*., *citing*
    Amendment of Part 2 of the Commission's Rules to Permit Land Mobile
    Use of the Band 421-430 MHz in Detroit, Cleveland and Buffalo,
    *Report and Order*, 58 RR 2d 1566 (1985).

[^31]: Futronics Comments at 8.

[^32]: *Id.* at 8-9.

[^33]: *Id*. at 9 citing Amendment of Section 2.106 of the Commission's
    Rules to Allocate Spectrum for Wind Profiler Radar Systems, *Notice
    of Proposed Rulemaking and Notice of Inquiry*, 8 FCC Rcd 2546 ¶ 6
    (1993).

[^34]: Midport Reply Comments (filed March 3, 2003).

[^35]: *Id*. at 2 n.1. Midport argues that at the core of this
    proceeding is the assumption that the Commission's distance
    calculation program is correct and that the results of Midport's
    distance calculation program are erroneous. At the very least,
    Midport suggests, it should be recognized that there is a lack of
    unanimity.

[^36]: *Id*. at 3.

[^37]: *Id*.

[^38]: *See Report and Order*, 2 FCC Rcd 825 ¶¶ 25-28.

[^39]: Midport Reply Comments at 3.

[^40]: *Id*. at 4.

[^41]: *Id*.

[^42]: *Id*.

[^43]: *Id*.

[^44]: 47 C.F.R. § 2.106 shows the United States Table of Allocations.
    On the table, Columns 4 through 7 are divided into the Government
    Table of Frequency Allocation and the Non-Government Table of
    Frequency Allocations. The Government plan (shown in column 4) is
    administered by the NTIA, and the non-Government plan (shown in
    column 5) is administered by the Commission. *See* 47 C.F.R. §
    2.105. \"Non-Government\" means an entity which is not a Federal
    entity. Thus, for example, Alaska is deemed a non-Government entity
    because it is not a Federal entity.

[^45]: *See Report and Order,* 2 FCC Rcd 825 (1987).

[^46]: In an earlier Commission order, the 422.1875-425.4875 MHz and
    427.1875-429.9875 MHz bands were allocated for private land mobile
    use on a primary basis within 50 miles of Detroit, Michigan. This
    allocation was made permissible after negotiations with Canada,
    which employs the 421-430 MHz band for land mobile operation, and
    with the Federal Government, which uses the band for radiolocation.
    *See* Amendment of the Rules To Permit Land Mobile Use of the Band
    421-430 MHz*, Report and Order*, 50 FR 40016 (Oct. 1, 1985).

[^47]: *See* 47 C.F.R. § 1.925(b)(3). *See also* *WAIT Radio v. FCC*,
    418 F.2d 1153 (D.C. Cir. 1969), *cert. denied*, 409 U.S. 1027
    (1972). This standard was formerly codified at section 22.119(a) of
    the rules, 47 C.F.R. § 22.119(a) (1997). *See* Amendment of Parts 0,
    1, 13, 22, 24, 26, 27, 80, 90, 95, 97, and 101 of the Commission\'s
    Rules to Facilitate the Development and Use of the Universal
    Licensing System in the Wireless Telecommunications Service, *Report
    and Order*, 13 FCC Rcd. 21027 (1998) (streamlining and recodifying
    rules governing wireless license application procedures).

[^48]: *See* 47 C.F.R. § 1.3. *See also* Northeast Cellular Telephone
    Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990).

[^49]: *See* 47 C.F.R. § 1.901.

[^50]: Waiver Request at 2.

[^51]: *See, e.g.*, State of Alaska, *Memorandum Opinion and Order*, 29
    Communications Reg. (P&F) 1209, n.61 (WTB 2003).

[^52]: 47 C.F.R. § 1.925(b)(3)(ii); *see also, e.g.*, City of San Diego,
    *Order*, 17 FCC Rcd. 8005, n.15 (WTB PSPWD 2003); Fresno City and
    County Housing Authorities, *Order on Reconsideration*, 15 FCC Rcd
    10998 (WTB PSPWD 2000).

[^53]: In the *Report and Order* allocating the 421-430 MHz band to land
    mobile operations, the Commission noted that the purpose of this
    action is to help satisfy communications capacity needs of the
    private land mobile radio services in the vicinities of Detroit,
    Cleveland and Buffalo, by allocating portions of the 421-430 MHz
    band for land mobile use near these cities. *See* Amendment of the
    Part 90 of the Commission's Rules to Provide for Private Land Mobile
    Operation in the 421-430 MHz Band in Detroit, Cleveland, and
    Buffalo, *Report and Order*, 2 FCC Rcd 825 (1987). This allocation,
    the Commission said, is desirable because it will reduce land mobile
    channel congestion near these cities and is possible without further
    disrupting amateur operations beyond that already proposed in other
    proceedings. *Id*.

[^54]: *Id*.

[^55]: *Id*. at 827.

[^56]: *Id*. at 828.

[^57]: *Id*.

[^58]: *Id*.

[^59]: *See* n.8 *supra*.

[^60]: In arriving at this conclusion, we assume that Midport's antenna
    gain minus any loss factors will convert 90 watts TPO to 250 watts
    ERP. *See* Amendment of Part 90 of the Commission\'s Rules and
    Policies for Applications and Licensing of Low Power Operations in
    the Private Land Mobile Radio 450-470 MHZ Band, *Report and Order,*
    18 FCC Rcd 3948, 3954 ¶ 12 (2003). *See* In the Matter of 1998
    Biennial Review-47 C.F.R. Part 90-Private Land Mobile Radio
    Services, *Memorandum Opinion and Order and Second Report and
    Order,* 17 FCC Rcd 9830, 9840 ¶ 23 (2002); *See* Amendment of Part
    90 of the Commission\'s Rules and Policies for Applications and
    Licensing of Low Power Operations in the Private Land Mobile Radio
    450-470 MHZ Band, *Notice of Proposed Rulemaking*, 16 FCC Rcd 14946,
    14951 ¶ 10 (2001).

[^61]: *See R**eport and Order*, 50 Fed. Reg. 40018 ¶ 25 (Oct. 1, 1985).

[^62]: In this connection, we observe that should Midport seek to
    specify that its mobiles center around its base station coordinates,
    Midport would then be required to seek a waiver justifying such a
    location. 47 C.F.R. § 90.273(d) (confining mobile operations in the
    421-430 MHz band to within 50 miles of Detroit). Similarly, should
    Midport seek to expand the mobile area of operation beyond 20 miles
    of Detroit, it would be required to file a license modification
    application.

[^63]: *See, e.g.*, Goosetown Enterprises, *Memorandum Opinion and
    Order*, 16 FCC Rcd 12792 (2001) (*Goosetown*) (470-512 MHz band is
    shared by land mobile radio operations and television operations).

[^64]: *See* 47 C.F.R. § 90.305(a) (location of station). Pursuant to
    Section 90.305(a) of the Commission\'s Rules, base stations
    operating in the 470-512 MHz band must be located within 80
    kilometers (50 miles) of the geographic center of the urbanized
    areas listed in Section 90.303 of the Commission\'s Rules. *See* 47
    C.F.R. § 90.303. This mileage restriction was established to protect
    over-the-air broadcast operations on television channels 14-21 from
    harmful interference by land mobile radio systems operating in the
    470-512 MHz band. *See* Further Sharing of the UHF Television Band
    by Private Land Mobile Radio Services, *Notice of Proposed Rule
    Making*, 101 FCC 2d 852 (1985).

[^65]: *See, e.g*., *Goosetown*, 16 FCC Rcd 12792 ¶ 12. Indeed, the
    Commission has indicated that it is more inclined to consider
    favorably requests for waiver of Section 90.305(a) of its rules when
    the applicant proposes to contain its area of operation within
    certain distances of the geographic center of the urban area in
    question. *Id*. at ¶ 13.

[^66]: *See infra* ¶ 3.

[^67]: *See infra* ¶ 10.

[^68]: *See* Futronics Comments at 7.

[^69]: *See* *Midport Order*, 17 FCC Rcd. 13778.

[^70]: *Id*.

[^71]: *See e.g.*, Wireless Telecommunications Bureau Lists Private Land
    Mobile Licenses Cancelled as a Result of the Spectrum Audit, *Public
    Notice*, DA 04-1553 (WTB, PSCID June 8, 2004).

[^72]: Moreover, Futronics has presented no evidence that Midport has
    operated on the frequencies and at the site in question subsequent
    to the cancellation of Midport's previous licenses. Nonetheless
    should evidence surface that Midport has operated without
    authorization on 421-430 MHz frequencies subsequent to the *Midport
    Order*, we reserve the right to initiate enforcement action.

[^73]: *See infra*, ¶¶15, 19.

[^74]: While we disagree with Midport that a waiver should be granted
    solely because the distance in question is only 2.8 miles, we
    believe that Midport has shown that its proposed operation would
    serve the public interest. *See, e.g.*, *Goosetown*, 16 FCC Rcd at
    12797 ¶ 11.

[^75]: *See infra* ¶ 4.

[^76]: *See Report Order*, 2 FCC Rcd at 825. While Futronics contends
    that Midport fails to explain why it cannot operate within the
    prescribed distance requirements, Midport notes that according to
    some distance calculation programs, Midport's proposed station
    location is within fifty miles of Detroit. *See* Reply Comments at
    2.

[^77]: *See infra* ¶ 4.

[^78]: 47 C.F.R. § 2.106 footnote US230.

[^79]: *Id.*

[^80]: 47 C.F.R. 1.925(a) (the Commission may grant rule waivers on its
    own motion or upon request).