**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | FCC File No. 0001669196      |
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| Access Spectrum, LLC Request for | ** |                              |
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| Waiver of Section 27.60          | *  |                              |
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**MEMORANDUM OPINION & ORDER**

**Adopted: August 12, 2004 Released: August 12, 2004**

By the Chief, Wireless Telecommunications Bureau:

# INTRODUCTION

1.  This order addresses a request for waiver (Waiver Request) of
    section 27.60 of the Commission's rules,[^1] filed on March 24, 2004
    by Access Spectrum, LLC (Access Spectrum) in association with FCC
    Form 601, file no. 0001669196.[^2] Section 27.60 sets forth the
    protection criteria for base, fixed, control and mobile transmitters
    operating in the 698-764 MHz and 776-794 MHz frequency bands, in
    order to reduce the potential for interference to public reception
    of the signals of existing TV and DTV broadcast stations
    transmitting on TV Channels 51 through 68. For the reasons described
    below, Access Spectrum's Waiver Request is granted, subject to the
    conditions set forth herein.

# BACKGROUND

2.  Access Spectrum holds a license for the MEA031 (Houston, Texas)
    service area in the 700 MHz Guard Band "A-Block" at 746-747 MHz and
    776-777 MHz. Access Spectrum proposes a ten-channel trunked land
    mobile base station, at 50 watts ERP per channel, within its
    licensed service area.[^3] Although adjacent to channel 61,
    currently occupied by broadcast station KZJL, the proposed station's
    operating frequencies are roughly 5 MHz removed from the lower end
    of KZJL's 6 MHz of channel space.[^4] However, Access Spectrum's
    proposed station is located too close to KZJL, pursuant to the
    Commission's TV/DTV protection criteria.[^5] In fact, the proposed
    station is located inside the hypothetical Grade B contour of
    KZJL.[^6] Section 27.60(b) of the Commission's rules references
    specific, minimum geographic separations that must be maintained
    between a 700 MHz licensee's transmitter and an incumbent broadcast
    station.[^7] In addition, section 27.60(a) requires a minimum
    desired-to-undesired (D/U) ratio of 0 dB at the hypothetical Grade B
    contour of an adjacent channel analog TV station such as KZJL. As a
    matter of engineering principle, compliance with section 27.60(a)
    requires that the minimum D/U ratio be maintained everywhere within
    the hypothetical Grade B contour of an adjacent channel analog TV
    station.

# DISCUSSION

3.  Access Spectrum argues that its base station will meet the TV/DTV
    protection criteria set forth in section 27.60 of the Commission's
    rules.[^8] Specifically, Access Spectrum argues that its associated
    engineering study, pursuant to section 27.60(b)(1)(iii), justifies
    the station's proposed geographic "short-spacing" to KZJL that
    otherwise would violate the required minimum distance
    separation.[^9] Additionally, Access Spectrum argues that no waiver
    is necessary because it submitted an engineering study pursuant to
    section 27.60(b)(1)(iii).[^10] Every commenter concurs, with the
    exception of KZJL, that no waiver is necessary and that Access
    Spectrum's engineering study is sufficient.[^11] Also, Access
    Spectrum, together with several commenters, argue that any such
    Guard Band Manager need not apply for a specific station on FCC Form
    601, so long as it sufficiently demonstrates that the proposed
    operations will not interfere with any TV/DTV station.[^12]
    Nonetheless, as a precautionary measure, Access Spectrum filed the
    Waiver Request, together with an application on FCC Form 601, while
    maintaining its position that circumstances do not require an
    application.[^13]

## Necessity for Application and Waiver

4.  Access Spectrum argues that Guard Band Managers like itself should
    not have to file on FCC Form 601 for a specific station
    authorization, together with a request for waiver of section 27.60,
    because the filing of an engineering study is sufficient.[^14]
    Access Spectrum notes that the Commission created the Guard Band
    Manager licensing rules to stimulate innovation and to streamline
    the Commission's spectrum management responsibilities.[^15]
    According to Access Spectrum, the Commission's rules support its
    position that an engineering study alone is sufficient, pursuant to
    section 27.60(b)(1).[^16]

5.  Section 27.60(b)(1) establishes four methods to demonstrate
    compliance with the Commission's TV/DTV protection
    requirements.[^17] The licensee must select one method and
    accordingly must obtain Commission approval.[^18] In general, these
    methods are: (1) meet established geographic separations; (2) when
    station parameters are greater than those indicated in the tables,
    calculate geographic separation in accordance with the required D/U
    ratio; (3) submit an engineering study justifying a proposed
    geographic separation based on the actual parameters of the proposed
    station and the actual parameters of the TV/DTV station requiring
    protection; or (4) obtain written concurrence from the TV/DTV
    station.[^19]

6.  Every commenter, with the exception of KZJL, concurs with Access
    Spectrum that a request for waiver should not be necessary when an
    engineering study is filed pursuant to the third method referred to
    above, section 27.60(b)(1)(iii).[^20] Furthermore, several
    commenters support Access Spectrum's position that an associated
    application on Form 601 need not be filed.[^21] Motorola argues that
    such a waiver and application process is overly burdensome, and
    could delay the deployment of public safety and commercial
    operations.[^22] UTC asserts that the Guard Band Manager licensing
    framework was established to permit the construction and operation
    of systems without the need for individual licensing through the
    Commission.[^23] The Coalition adds that as Guard Band Managers
    increasingly submit engineering studies with applications and waiver
    requests, the approval process could be overwhelmed, thus
    forestalling the deployment of valuable services.[^24] The Coalition
    therefore proposes that an engineering study pursuant to section
    27.60(b)(1)(iii), absent an associated application and waiver
    request, should be presumed valid unless objected to within 30 days
    of filing, after which deployment could occur without prior
    approval.[^25]

7.  KZJL argues that Access Spectrum's proposed station should be
    considered solely through the application and waiver process.[^26]
    KZJL asserts that an engineering study pursuant to section
    27.60(b)(1)(iii) must meet the criteria set forth in section
    27.60(b)(2)(i), which only conceives of a section 27.60(b)(1)(iii)
    showing when the proposed station is located outside the
    hypothetical Grade B contour of the TV/DTV station.[^27]
    Accordingly, KZJL argues, Access Spectrum must request a waiver of
    section 27.60 because its proposed station is located inside the
    hypothetical Grade B contour of KZJL's transmitter.[^28]
    Additionally, KZJL argues that an application on Form 601 is
    necessary at all times, because it is the most efficient way to
    assure enforcement of the Commission's rules protecting incumbent
    broadcasters.[^29]

8.  In its reply comments, Access Spectrum notes that the limitation on
    engineering studies in section 27.60(b)(2)(i), to locations outside
    the Grade B contour, does not apply.[^30] That limitation, Access
    Spectrum notes, specifically refers to co-channel stations, and not
    to adjacent channel stations like the one at issue.[^31] Access
    Spectrum also argues that the Commission, when enumerating the four
    methods in section 27.60(b)(1) to meet its TV/DTV protection
    requirements, would have explicitly established a waiver requirement
    if it meant to.[^32]

9.  We agree with KZJL that the application and waiver process is
    necessary for Access Spectrum's proposed operation. The option
    provided in section 27.60(b)(1)(iii), to submit an engineering study
    subject to Commission approval, assumes that the study will
    demonstrate compliance with the required D/U protection ratios
    specified in section 27.60. We believe that a waiver is required in
    this instance because Access Spectrum, which proposes to locate its
    transmitter inside the hypothetical Grade B contour of KZJL, does
    not comply with the interference protection specified in section
    27.60(a). By its own admission, Access Spectrum does not provide
    full protection against interference to KZJL. Specifically, Access
    Spectrum acknowledges that television receivers within a radius of
    as much as 169.3 meters from its proposed transmitter could
    experience interference.[^33]

10. We agree with the commenters' argument that an engineering study
    under section 27.60(b)(i)(iii) is required. However, we disagree
    with commenters that argue that an FCC Form 601 application should
    not be necessary. While the rules do not specifically require that
    the engineering study be submitted with an accompanying FCC Form
    601, we clarify that, for administrative efficiency, the engineering
    study must be submitted electronically via FCC Form 601.
    Furthermore, as discussed above, we have determined that Access
    Spectrum's proposed operation requires a waiver of section 27.60 of
    the Commission's rules. Where a waiver is necessary, section
    1.925(b)(1) requires that the request be filed on FCC Form 601.[^34]
    We disagree with the Coalition that the Engineering study should be
    presumed valid unless the Commission objects to the showing within
    thirty days, as Section 27.60(b)(1)(iii) requires prior Commission
    approval.

## Access Spectrum's Engineering Study and Waiver Request

11. Access Spectrum acknowledges that some interference is possible,
    given its proposed location of a facility inside the Grade B contour
    of incumbent broadcaster KZJL. However, according to Access
    Spectrum, its engineering study demonstrates that the possibility of
    interference to off-air reception of KZJL is virtually
    non-existent.[^35] The base station is proposed for a fixed location
    atop the 75-story JP Morgan Chase tower in downtown Houston, Texas,
    at 305 meters above ground.[^36] Access Spectrum estimates that at
    most, its base station could interfere with off-air reception of
    KZJL at distances of up to 169.3 meters. Thus, the potential zone of
    interference does not reach ground level, and is "negligible at
    best."[^37] Access Spectrum asserts that there are no known
    residences within the zone of interference.[^38] Access Spectrum
    also assures that after construction it will do extensive testing
    with KZJL within the identified interference zone, and commits to
    alleviate any interference as well as bear financial
    responsibility.[^39] KZJL notes that many office workers in the JP
    Morgan Chase tower and surrounding office buildings will be subject
    to interference from Access Spectrum's proposed station.[^40] KZJL
    argues that it would be difficult to ascertain the impact of
    interference, because these viewers would more likely turn to
    alternative programming than complain about the interference to KZJL
    or to the Commission.[^41] Furthermore, KZJL argues that master
    antennas, and cable and DBS head-ends, could exist within the zone
    of interference, for distribution well outside the zone, thus
    involving a potentially larger area of impact.[^42] Finally, KZJL
    argues that Access Spectrum failed to account for possible
    interference to licensed operation of wireless microphones and other
    auxiliary broadcast facilities under Part 74 of the Commission's
    rules.[^43]

12. Having determined that Access Spectrum requires a waiver of section
    27.60 of our rules in order to deploy its base station, we must
    apply the waiver standard set forth in section 1.925(b)(3). The
    Commission may grant a waiver if it is shown that: "(i) The
    underlying purpose of the rule(s) would not be served or would be
    frustrated by application to the instant case, and that a grant of
    the requested waiver would be in the public interest; or (ii) In
    view of unique or factual circumstances of the instant case,
    application of the rule(s) would be inequitable, unduly burdensome
    or contrary to the public interest, or the applicant has no
    reasonable alternative."[^44]

13. Access Spectrum requests a waiver pursuant to the first of the two
    waiver standards described above.[^45] It asserts that a waiver
    would be in the public interest because the Guard Band Manager
    licensing approach is meant to streamline the Commission's spectrum
    management responsibilities, as well as to diversify use of the
    746-806 MHz band, thereby promoting development and rapid
    deployment.[^46] KJZL argues that the Waiver Request fails under the
    first of the two waiver standards in section 1.925 because the
    purpose of section 27.60 is to protect incumbent broadcasters from
    interference, and denying the Waiver Request would actually uphold
    the purpose of the rule rather than frustrate it.[^47] With respect
    to the second waiver standard, KZJL argues that Access Spectrum has
    not alleged any circumstances that would result in the application
    of section 27.60 being inequitable, unduly burdensome or contrary to
    the public interest.[^48] KZJL notes that Access Spectrum purchased
    its spectrum with full knowledge of KZJL's rights, therefore the
    "significant funds" spent by Access Spectrum do not demonstrate
    inequity or undue burden.[^49] Finally, KZJL argues that it would
    defy the public interest to approve Access Spectrum's request,
    because the proposed service is not "new" and would exist alongside
    alternative radio operators in the Houston area.[^50]

14. Under section 1.925, the Commission may grant a waiver if it is
    shown that the standards of either section 1.925(b)(3)(i) or (ii)
    are met. In this case, we find that Access Spectrum has satisfied
    the first waiver standard of section 1.925, and that circumstances
    warrant a conditional grant of waiver. We agree with Access Spectrum
    that it is in the public interest to encourage the deployment of
    alternative land mobile services in the Houston area. We also
    believe that the underlying purpose of section 27.60 is to permit
    700 MHz operations where it is demonstrated that co-channel or
    adjacent channel interference to TV/DTV stations will be prevented.

15. We find that Access Spectrum has adequately demonstrated through its
    engineering showing that the zone of possible interference to
    television receivers is located in a business district, is limited
    to a very small area within a radius of 169.3 meters from Access
    Spectrum's base station antenna, and does not even reach ground
    level. Additionally, there is nothing in the record to indicate that
    over-the-air TV receivers exist within the zone of
    interference.[^51] Although KZJL argues that there could be master
    antennas, and cable and DBS head-ends, within the zone of
    interference, it fails to provide any evidence to support this
    speculative claim. Similarly, we agree with Access Spectrum that
    KZJL failed to provide technical support for the allegation that
    Part 74 devices would experience impermissible interference,[^52]
    and we note that such licensees are authorized on a secondary,
    non-interfering basis.[^53] Although the Part 27 Guard Band Manager
    allocation occurred after the Part 74 rules were established, the
    secondary status of the broadcast auxiliary services extends to the
    Part 27 allocation at issue here. The Commission has not revised
    Part 74 to afford such licensees primary status in any regard, and
    did not afford such licensees interference protection under section
    27.60. Further, the record demonstrates that the likelihood of
    over-the-air TV receivers existing within the zone of interference
    is negligible and, as previously noted, Access Spectrum commits to
    resolve any interference at its expense.[^54] Access Spectrum also
    offers to conduct tests with KZJL after the construction of its
    facilities, if authorized.[^55] For the foregoing reasons, we find
    that the underlying purpose of the rule would not be served by
    strict application to the instant case. As we find that a
    conditional waiver is warranted under section 1.925(b)(3)(i), we
    need not address KZJL's argument that Access Spectrum's Waiver
    Request fails the standard set forth in section 1.925(b)(3)(ii).

16. We grant Access Spectrum a waiver to operate, conditioned on the
    following: (1) Access Spectrum must operate in accordance with
    technical parameters set forth in its FCC Form 601 and accompanying
    engineering showing;[^56] (2) Access Spectrum shall provide KZJL,
    before commencing any operations, with a contact number to receive
    reports of any interference; (3) Access Spectrum shall remedy or
    report to the FCC any and all cases of reported interference within
    five business days; (4) Access Spectrum shall remedy any and all
    interference at its sole expense;[^57] (5) mobile-to-mobile
    operations on Channel 60 are prohibited; and (6) Access Spectrum
    shall be required to protect KZJL's facilities as set forth in
    KZJL's current construction permit (BMPCT-20021107AAA).[^58] We note
    that Access Spectrum has offered to conduct tests in the presence of
    KZJL staff, prior to commencing operations. We encourage Access
    Spectrum to conduct such tests before commencing operations, which
    will help to identify and resolve possible interference, and will
    promote a more coordinated approach among the parties in this
    proceeding.

# CONCLUSION

17. For the reasons set forth above, we find that a conditional grant of
    Access Spectrum's Waiver Request is in the public interest.

# ORDERING CLAUSE

18. Accordingly, IT IS ORDERED that, pursuant to the authority in
    sections 1, 2, 4(i) and 4(j) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 152, 154(i) and 154(j), and section
    1.925(b)(3)(i) of the Commission's rules, 47 C.F.R.
    § 1.925(b)(3)(i), the request for waiver by Access Spectrum, LLC IS
    GRANTED, subject to the conditions set forth herein, and the
    Mobility Division is directed to process file no. 0001669196
    consistent with this Memorandum Opinion and Order.

    FEDERAL COMMUNICATIONS COMMISSION

    John B. Muleta, Chief

    Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 27.60.

[^2]: Access Spectrum, LLC Request for Waiver of Section 27.60(a)(2) of
    the Commission's Rules Relating to TV/DTV Interference Protection
    Criteria at 1 (filed Mar. 24, 2004).

[^3]: *Id.* The proposed station is located on the JP Morgan Chase Tower
    in downtown Houston, Texas at the following coordinates: 29-45-37.82
    N and 95-21-50.78 W (NAD83).

[^4]: *Id.* at 7, Figure 1.

[^5]: *Id.* at 1. See 47 C.F.R. § 27.60(b).

[^6]: *Id.* at 2. The hypothetical Grade B contour encircles the
    incumbent broadcast station at a distance of 88.5 km (55 miles).
    *See* 47 C.F.R. § 27.60(a).

[^7]: 47 C.F.R. § 27.60(b).

[^8]: Waiver Request at 2, citing 47 C.F.R. § 27.60.

[^9]: *Id.*

[^10]: *Id.*

[^11]: *See* Aloha Partners, Reply Comments in Support of Access
    Spectrum Proposal at 2 (filed May 28, 2004) (Aloha Reply Comments);
    Comments of the Association of Public Safety Communications
    Officials-International, Inc. (APCO) at 2 (filed May 17, 2004) (APCO
    Comments); Comments of Industrial Telecommunications Association,
    Inc. (ITA) at 2 (filed May 17, 2004) (ITA Comments); Comments of
    Motorola, Inc. at 5 (filed May 17, 2004) (Motorola Comments);
    Comments of the United Telecom Council (UTC) at 2 (filed May 14,
    2004) (UTC Comments); Reply Comments of the 700 MHz Advancement
    Coalition (Coalition) at 4 (filed May 27, 2004) (Coalition Reply
    Comments); *cf.* Comments of KZJL License Corp. on Access Spectrum,
    LLC Request for Waiver of Section 27.60 (filed May 17, 2004) (KZJL
    Comments).

[^12]: Waiver Request at 4; Motorola Comments at 5; UTC Comments at 4;
    Coalition Reply Comments at 4.

[^13]: Waiver Request at 4.

[^14]: *Id.*

[^15]: *Id.*, citing *Service Rules for the 746-764 and 776-794 MHz
    Bands and Revisions to Part 27 of the Commission's Rules*, WT Docket
    No. 99-168, Second Report and Order, 15 FCC Rcd 5299 (2000)
    ("*Second Report and Order*"). According to the *Second Report and
    Order*, a Guard Band Manager may use its license to "allow others to
    construct and operate stations at any available site within the
    licensed area and on any channel for which the Guard Band Manager is
    licensed." *Id.* at 5314 para. 33; 47 C.F.R. § 27.601(a). However,
    this approach is limited to stations that require neither an
    environmental assessment nor international coordination, and do not
    affect the radio frequency quiet zones. 47 C.F.R. § 27.601(c)(1).

[^16]: Waiver Request at 4.

[^17]: 47 C.F.R. § 27.60(b)(1).

[^18]: *Id.*

[^19]: 47 C.F.R. § 27.60(b)(1)(i)-(iv).

[^20]: *See supra* note 11.

[^21]: *See supra* note 12.

[^22]: Motorola Comments at 5.

[^23]: UTC Comments at 4.

[^24]: Coalition Reply Comments at 4.

[^25]: *Id.* at 4-5.

[^26]: KZJL Comments at 2.

[^27]: KZJL Comments at 3, citing 47 C.F.R. §  27.60(b)(2)(i) ("If the
    distance so determined equals or exceeds the distance to the
    hypothetical or equivalent Grade B contour of a co-channel TV/DTV
    station...an authorization will not be granted unless it is shown in
    an engineering study (see paragraph (b)(1)(iii) of this section)
    that actual terrain considerations are such as to provide the
    desired protection at the actual Grade B contour...or unless the
    effective radiated power will be further reduced so that...the
    desired protection at the actual Grade B contour...will be
    achieved").

[^28]: KZJL Comments at 2-3.

[^29]: Reply Comments of KZJL License Corp. on Access Spectrum, LLC
    Request for Waiver of Section 27.60 at 3 (filed Jun. 2, 2004) (KZJL
    Reply Comments).

[^30]: Reply Comments of Access Spectrum, LLC at 4-5 (filed May 27,
    2004) (Access Spectrum Reply Comments).

[^31]: *Id*. at 5.

[^32]: *Id*. at 6. Access Spectrum notes that section 27.60(b)(1)
    qualifies the four methods as being subject to Commission approval,
    while the rule part does not specify the manner of Commission
    approval. *Id.*

[^33]: *See* Access Spectrum Reply Comments, Engineering Showing and
    Analysis at 3.

[^34]: 47 C.F.R. § 1.925(b)(1). We note that licensees proposing to
    demonstrate interference-free operations by locating facilities
    outside the Grade B contour of an incumbent broadcaster (although
    located at separations closer than those provided in 27.60(a)) are
    only required to submit an FCC Form 601 and engineering study for
    Commission approval under 27.60(b)(1)(iii), and are not required to
    seek a waiver of the Commission's rules.

[^35]: Waiver Request at 6.

[^36]: Access Spectrum Reply Comments, Engineering Showing and Analysis
    at 3. KZJL raised several concerns that were resolved during the
    pleading cycle. In its initial comments, KZJL noted that Access
    Spectrum's application did not specify the elevation of the proposed
    facility, but merely the elevation of the JP Morgan Chase tower.
    *Id.* at 6. Additionally, KZJL noted that Access Spectrum's
    application and engineering study did not address KZJL's
    construction permit for new facilities, at a different physical
    location from its existing facilities, with construction to begin
    July 2004 and approximately to end in August 2004. *Id.* at 4.
    Finally, KZJL asserted that mobile radios could operate in a
    "talk-around" mode, not only receiving from Access Spectrum's
    proposed facility, but also transmitting to one another from
    indeterminate locations within KZJL's coverage area. *Id.* at 5-6.
    In its reply comments, Access Spectrum specified that the radiating
    portion of its antenna would be 305 meters above ground level.
    Access Spectrum Reply Comments at 4. Access Spectrum also conducted
    an additional engineering study to account for the proposed facility
    authorized pursuant to KZJL's construction permit, finding that the
    admitted zone of interference would increase by 50.8 meters, from
    118.5 meters to 169.3 meters. *Id.* at 2. Finally, Access Spectrum
    certified that it simply will not allow "talk-around" operations.
    *Id.* at 3.

[^37]: Access Spectrum Reply Comments at 2.

[^38]: Access Spectrum Reply Comments, Engineering Showing and Analysis
    at 4.

[^39]: Access Spectrum Reply Comments at 7, Engineering Showing and
    Analysis at 4.

[^40]: KZJL Comments at 5.

[^41]: *Id.*

[^42]: Letter from Todd D. Rosenberg and Michael J. Walsh, Jr., Counsel
    to KZJL License Corp., to Marlene Dortch, Secretary, Federal
    Communications Commission at 2 (filed July 8, 2004) (KZJL *Ex
    Parte*).

[^43]: *Id.* at 2.

[^44]: 47 C.F.R. § 1.925(b)(3).

[^45]: Waiver Request at 5, citing 47 C.F.R. § 1.925(b)(3)(i).

[^46]: *Id.* at 5-6.

[^47]: KZJL Comments at 5-6.

[^48]: KZJL Comments at 7.

[^49]: *Id.*, citing Waiver Request at 8.

[^50]: KZJL Comments at 8, Affidavit of Chris Buchanan in Support of the
    Comments of KZJL License Corp. at 2. KZJL also contends that
    according to judicial precedent, the public interest requirement for
    waiver refers to "new services." KZJL Comments at 8, citing *WAIT
    Radio v. FCC*, 418 F.2d 1153, 1157 (D.C.Cir. 1969) ("a general
    rule...may not be in the 'public interest' if extended to an
    applicant who proposes a new service"). Access Spectrum argues that
    the court was not limiting the circumstances for waiver to "new
    services," but rather was including "new services" as an example of
    any factor that could not be considered when the original rule was
    adopted. Access Spectrum Reply Comments at 8.

[^51]: Commission precedent demonstrates a measured concern over the
    likelihood of interference to residential areas. The Automated
    Maritime Telecommunications System (AMTS) is similar to the Guard
    Band Manager regime in that it is bound by service rules to protect
    incumbent TV/DTV broadcasters. In one case, there were an undisputed
    2,053,657 people within a broadcaster's Grade B contour and also
    within the AMTS licensee's predicted interference contour.
    *Application of Fred Daniel d/b/a Orion Telecom*, 14 FCC Rcd 3909,
    3910 para. 3 (1999) ("*Orion Telecom -- Chicago*"). A related case
    had established that when 100 or more residences exist within a
    Grade B contour and predicted interference contour, authorization
    must be solely under exceptional circumstances, and the "stringency
    of the plan to control interference...\[must\] be commensurate with
    the number of potentially affected residences." *Id.* at 3911-12
    para. 7, citing *Amendment of Parts 2, 81 and 83 of the
    Commission\'s Rules to Allocate Spectrum for an Automated Inland
    Waterways Communications System (IWCS) along the Mississippi River
    and Connecting Waterways, Maritime Mobile Radio Services:
    Improvement in Service Through Provision for Automated VHF Common
    Carrier Systems, VHF Frequency Assignments to the Maritime Radio
    Services in the New Orleans and Lower Mississippi Rivers Areas and
    on the Coastlines of the Contiguous States*, Report and Order, 84
    FCC.2d 875, 897 (1981). Orion's application failed because the
    licensee's plan to control interference was inadequate for the large
    number of affected residences. *Orion Telecom -- Chicago*, 14 FCC
    Rcd at 3911-12 para. 7. However, in another case the same licensee
    at a different location prevailed, subject to a power limitation of
    10 watts ERP in order to reduce the number of affected residences.
    *See Application of Fred Daniel d/b/a Orion Telecom*, 14 FCC Rcd
    3837 (1999) ("*Orion Telecom -- Corona*").

[^52]: *See* Letter from Mark E. Crosby, President, Access Spectrum, LLC
    to Marlene Dortch, Secretary, Federal Communications Commission
    (filed July 26, 2004) (Access Spectrum *Ex Parte*).

[^53]: *See* 47 C.F.R. § 2.106 NG 115 ("...wireless microphones and
    wireless assist video devices may be authorized on a
    non-interference basis..."). Part 74 licenses consistently have held
    a secondary status to land mobile operations. For example, when
    establishing Part 74 rules for Studio to Transmitter Links (STL) and
    Intercity Relay (ICR), we stated, "STL/ICR licenses will also be
    secondary to current land mobile allocations..." *Review of
    Technical and Operational Requirements: Part 74-E Aural Broadcast
    STL and ICR Stations and Part 74-F TV Auxiliary Broadcast Stations*,
    Report and Order, 102 FCC.2d 940, para. 17 (1985) (citations
    omitted). In a subsequent Report and Order concerning additional
    changes to Part 74, we restated this principle by noting that
    STLs/ICRs are secondary "to land mobile stations authorized under
    Parts 22 and 90 in areas where land mobile sharing is permitted."
    *Revisions to Broadcast Auxiliary Service Rules in Part 74 and
    Conforming Technical Rules for Broadcast Auxiliary Service, Cable
    Television Relay Service and Fixed Services in Parts 74, 78 and 101
    of the Commission's Rules*, Report and Order, 17 FCC Rcd. 22979,
    23015 para. 93 (2002) (citations omitted). The Low Power Auxiliary
    Station bands in Part 74 also are "secondary to TV broadcasting and
    land mobile stations operating in the UHF-TV spectrum and must not
    cause harmful interference. If such interference occurs, low power
    auxiliary station operation must immediately cease and may not be
    resumed until the interference problem has been resolved." 47 C.F.R.
    § 74.803(b). Additionally, "Low power TV and TV translator stations
    are being authorized on a secondary basis to existing land mobile
    uses and must correct whatever interference they cause to land
    mobile stations or cease operation." 47 C.F.R. § 74.703(e).

[^54]: *See* Access Spectrum Reply Comments at 7, Engineering Showing
    and Analysis at 4.

[^55]: *Id.*

[^56]: As reflected in Access Spectrum's application (FCC File
    No. 0001669196), the proposed trunked base station will be located
    at 29-45-37.82 N, 095-21-50.78 W (NAD 83), from an overall height
    above ground level of 305 meters. Each of the 10 channels will
    operate at up to 50 watts ERP.

[^57]: *Compare with Orion Telecom -- Corona*, 14 FCC Rcd at 3840 para.
    6, citing 47 C.F.R. § 80.215(h)(3) (AMTS applicant must make
    necessary adjustments to television receivers to eliminate
    interference if 100 residences exist within interference zone).
    Access Spectrum could also ensure reception of KZJL through
    provision of an alternative to over-the-air broadcasting such as
    closed circuit or cable television.

[^58]: In the event that KZJL further modifies its facilities, Access
    Spectrum shall not be required to cease operation or modify
    facilities authorized pursuant to this conditional grant of waiver.