**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Applications of | *  | File Nos. 852997-853009      |
|                                  | *) |                              |
| WARREN C. HAVENS                 | ** |                              |
|                                  |    |                              |
| For Authorization to Operate     | *  |                              |
| Automated\                       | *) |                              |
| Maritime Telecommunications      | ** |                              |
| System Stations\                 |    |                              |
| at Various Locations in Texas    | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 16, 2002 Released: September 18, 2002**

By the Commission:

# introduction

1.  On November 13, 2001, Warren C. Havens (Havens) filed an application
    for review of the October 12, 2001 *Order on Reconsideration* of the
    Wireless Telecommunications Bureau, Public Safety and Private
    Wireless Division (Division).[^1] The *Order on Reconsideration*
    denied Havens's petition for reconsideration of an earlier Division
    *Order* that dismissed the above-captioned applications to operate
    Automated Maritime Telecommunications System (AMTS) stations at
    various locations in Texas.[^2] On January 4, 2002, Havens filed a
    petition for declaratory ruling that was placed into the record of
    this proceeding. For the reasons that follow, the application for
    review is denied and the petition for declaratory ruling is
    dismissed.

# background 

2.  AMTS stations provide automated, integrated, interconnected
    ship-to-shore communications similar to a cellular phone system for
    tugs, barges, and other maritime vessels.[^3] Under Section
    80.475(a) of the Commission's Rules, AMTS applicants who propose to
    serve a navigable inland waterway that is less than 150 miles in
    length must serve that waterway in its entirety.[^4] On the other
    hand, AMTS applicants who propose to serve a navigable inland
    waterway that is more than 150 miles in length must provide
    continuity of service along at least 60 percent of the waterway.[^5]
    The Commission adopted these requirements, in 1991, as a means to
    ensure that there is interoperability over a major portion of one or
    more waterways.[^6] Finally, waterways that can be covered by a
    single station are ineligible for AMTS service.[^7]

3.  *Thirteen Applications.* On February 24, 2000, the Commission gave
    public notice of Havens's thirteen captioned applications to operate
    AMTS stations on channel block B.[^8] These applications requested
    authority to serve three waterways in Texas, as follows: six
    applications for AMTS stations that would serve 236 miles, or 55.5
    percent, of the 425-mile Trinity River;[^9] four applications for
    AMTS stations that would serve 87.5 miles, or 43.7 percent, of the
    200-mile San Antonio River;[^10] and three applications for AMTS
    stations that would serve 120 miles, or 42 percent, of the 286-mile
    Lower Colorado River.[^11]

4.  *Order*. While Havens conceded that he proposed to serve less than
    60 percent of each waterway, he argued that the applications
    nonetheless satisfied the coverage requirement set forth in Section
    80.475 of the Commission's Rules. Havens explained that in each case
    he was proposing to serve 100 percent of the waterway that could be
    served without causing interference to the previously licensed,
    co-channel AMTS stations of Waterway Communications System, Inc.
    (Watercom).[^12] The Division rejected this argument, and on January
    31, 2001, dismissed the above-captioned applications because they
    did not propose 60 percent coverage of the entire Trinity River,
    Lower Colorado River, or San Antonio River.[^13]

5.  *Order on Reconsideration*. On March 2, 2001, in his petition for
    reconsideration, Havens argued that the service coverage requirement
    (Section 80.475(a))[^14] would be satisfied if the tributaries of
    the three rivers were taken into account.[^15] The Division rejected
    that argument because tributaries are routinely and consistently
    treated as separate waterways for purposes of the AMTS rules.[^16]
    Havens also argued that his applications should be treated similarly
    to certain Regionet Wireless Licensee LLC (Regionet)
    applications,[^17] which he contends did not comply with the service
    coverage requirement but were nonetheless granted.[^18] In rejecting
    this argument, the Division noted that it was reasonable to conclude
    that the granted applications were extensions of Regionet's existing
    West Coast system.[^19] In this connection, the Division observed
    that Regionet is allowed to provide coverage to these inland
    waterways because Section 80.477(c) expressly permits service to
    vessels operating beyond the served waterway.[^20] Finally, the
    Division rejected Havens's argument that its interpretation of the
    service coverage requirement is contrary to the rule's underlying
    intent.[^21]

6.  On November 13, 2001, Havens filed the instant application for
    review. On November 28, 2001, Regionet filed an opposition and on
    December 12, 2001, Havens filed a reply. On January 4, 2002, Havens
    filed a petition for a declaratory ruling on whether the Division
    complied with Section 309 of the Communications Act of 1934, as
    amended, when it dismissed the above-captioned applications as
    opposed to designating them for hearing.[^22] This petition was not
    captioned under the instant proceeding and did not include a
    certificate of service on Regionet. In this connection, on April 17,
    2002, the Division concluded that this petition for declaratory
    ruling appeared to be a prohibited *ex parte* presentation that
    should be made part of the record of this restricted proceeding and
    served it on Regionet.[^23]

# discussion

7.  Any person aggrieved by any action taken pursuant to delegated
    authority may file an application requesting review of that action
    by the Commission.[^24] The Commission may grant the application for
    review in whole or in part, or it may deny the application with or
    without specifying reasons therefor.[^25] No application for review
    will be granted if it relies on questions of fact or law upon which
    the designated authority has been afforded no opportunity to
    pass.[^26]

8.  Havens argues that the Division's interpretation of the AMTS
    60-percent service coverage requirement is anticompetitive because
    it results in only the incumbent licensee, Watercom, being able to
    propose AMTS service to the waterways at issue.[^27] He suggests
    that a "reasonable and rational" interpretation of the service
    coverage requirement would permit the grant of his
    applications.[^28] In this connection, Havens refers to the
    "substantial service" standard that the Commission adopted for
    several of the Private Land Mobile Radio Services, governed under
    Part 90 of our rules. Specifically, Havens notes that for the 800
    MHz Specialized Mobile Radio[^29] and certain 220-222 MHz band
    channels,[^30] the Commission recognized "substantial service" as an
    alternative for geographic area licensees who could not satisfy the
    Part 90 population service coverage requirement because of incumbent
    operations.[^31] Havens contends that we should ensure a similar
    result for his AMTS applications.[^32]

9.  We disagree. As a preliminary manner, the "substantial service"
    argument is raised for the first time in the application for review.
    As such, Havens is barred from presenting it for our consideration
    at this juncture because it could have been but was not presented to
    the Division.[^33] Thus, we will not treat the substance of this
    particular Havens argument here.[^34] Next, we find Havens's claim
    that the Division should have interpreted the 60 percent coverage
    requirement as being satisfied when there is 100 percent coverage of
    the available portion of the waterway to be unpersuasive. Section
    80.475(a) provides that AMTS applicants who propose to serve a
    navigable inland waterway that is more than 150 miles in length must
    provide continuity of service along at least 60 percent of the
    waterway.[^35] Havens acknowledges both that he did not propose to
    serve at least 60 percent of each waterway and that Section
    80.475(a) does not contain a "substantial service" option.[^36] We
    also note that Havens did not request a waiver of Section 80.475(a),
    pursuant to the criteria set forth in 47 C.F.R. § 1.925, at any
    point during this proceeding. Accordingly, we find no error by the
    Division, and decline to address Section 1.925 of our Rules *sua
    sponte*.[^37]

10. Turning to Havens's claim that Regionet has received favorable
    licensing treatment, Havens refers to certain Regionet applications
    which he contends did not comply with the service coverage
    requirements but were nonetheless granted improperly under Section
    80.477(c) of the Commission's Rules.[^38] We note that Havens has
    offered no evidence that would cause us to differ with the
    Division's judgment that it was reasonable for the staff to conclude
    that the Regionet applications were properly granted as extensions
    of Regionet's existing West Coast system. Contrary to what Havens
    contends,[^39] the Division did not suggest in the *Order on
    Reconsideration* that the subject Regionet extensions were granted
    under Section 80.477(c). Rather, the Division suggested that if
    stations authorized to serve the West Coast also were capable of
    providing coverage to portions of certain inland waterways, such
    coverage was permitted under Section 80.477(c).[^40] Finally, we
    agree with the Division that to the extent that granting any of
    these Regionet applications could have been erroneous, as Havens
    alleges, such error would provide no basis for granting Havens's
    captioned applications.[^41]

11. In his application for review, Havens argues that the captioned
    applications to serve 43.7 percent of the San Antonio River should
    now be treated as applications to serve 100 percent of the Cibalo
    Creek, a tributary of the San Antonio River.[^42] We note, however,
    that Havens's applications suggested that the proposed stations were
    meant to serve the San Antonio River.[^43] Subsequently, his
    petition for reconsideration suggested that Cibalo Creek would
    receive full coverage, but only when arguing that the applications
    to serve the San Antonio River would satisfy the service coverage
    requirement if the mileage of the San Antonio River and the mileage
    of certain tributaries were combined.[^44] By comparison, Havens now
    argues in the application for review that the San Antonio River
    applications should be treated as applications to serve the Cibalo
    Creek. This is a completely new argument for why the applications
    should have been granted. Havens offers no explanation for failing
    to properly raise this argument to the Division or to request a
    waiver of Section 1.115(c) of the Commission's Rules. Accordingly,
    we find that this argument is barred at this juncture because it was
    not presented first to the Division.[^45]

12. In the alternative, Havens once again argues that the applications
    should be granted because if tributaries are taken into account, the
    proposed stations would satisfy the coverage requirement for the
    specified waterways.[^46] He states that the Army Corp of Engineers
    and the State of Texas have determined for purposes of major
    recreational navigable uses that the subject waterways include the
    identified tributaries.[^47] We reach the same conclusions as the
    Division in the *Order on Reconsideration*.[^48] We reject Havens's
    method of calculating the length of a particular navigable inland
    waterway for purposes of determining whether the AMTS coverage
    requirement is met. The requirement of 60 percent service coverage,
    by its express terms, applies to "each of one or more navigable
    inland waterways"[^49] and not to the combined mileage of the
    waterway and any applicant-selected tributaries. Moreover, as a
    general matter, the Commission has routinely and consistently
    treated tributaries as separate waterways for purposes of the AMTS
    rules.[^50]

13. Finally, on January 4, 2002, Havens filed a separately captioned
    petition requesting that the Chief, Wireless Telecommunications
    Bureau, issue a declaratory ruling on whether the Division complied
    with Section 309 of the Communications Act of 1934, as amended, when
    it dismissed the captioned applications without designating them for
    hearing.[^51] We agree with the Division, however, that the petition
    for declaratory ruling is in fact a collateral attack on the
    Division's actions in the *Order* and *Order on Reconsideration,*
    and is properly considered a part of the record of the proceeding
    now before us.[^52] In this connection, we find that the petition is
    barred under Section 1.115(d) as an untimely supplement to the
    instant application for review.[^53] Moreover, relative to the
    captioned applications, the petition also is barred under Section
    1.115(c) because the designated authority, the Division, has been
    afforded no opportunity to address the merits of the Section 309
    argument.[^54] Furthermore, this infirmity cannot be cured simply by
    addressing the petition to the Chief, Wireless Telecommunications
    Bureau, because Havens offers no explanation for failing to timely
    raise this argument to the Division within the statutory thirty-day
    period for seeking reconsideration of the *Order*.[^55] For the
    foregoing reasons, we find that Havens's Section 309 claim is
    precluded herein.[^56]

# Ordering Clauses

14. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 5(c), and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 155(c), 303(r), and Section 1.115 of the Commission's Rules,
    47 C.F.R. § 1.115, that the application for review filed by
    Warren C. Havens on November 13, 2001, IS DENIED.

15. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 5(c), and 303(r)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    155(c), 303(r), and Section 1.115 of the Commission's Rules, 47
    C.F.R. § 1.115, that the petition for declaratory ruling filed by
    Warren C. Havens on January 4, 2002, IS DISMISSED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: Warren C. Havens, *Order on Reconsideration*, 16 FCC Rcd 18046
    (WTB PSPWD 2001) (*Order on Reconsideration*).

[^2]: Warren C. Havens, *Order*, 16 FCC Rcd 2539 (WTB PSPWD 2001)
    (*Order*).

[^3]: *See, e.g.,* Amendment of Parts 2 and 80 of the Commission\'s
    Rules Applicable to Automated Maritime Telecommunications Systems
    (AMTS), *First Report and Order*, GEN Docket No. 88-732, 6 FCC Rcd
    437, 437 ¶ 3 (1991) (*AMTS First Report and Order*).

[^4]: 47 C.F.R. § 80.475(a) (2001).

[^5]: *Id.*

[^6]: *See* *AMTS First Report and Order*, 6 FCC Rcd at 440 ¶ 25.

[^7]: *See* Fred Daniel d/b/a Orion Telecom, *Memorandum Opinion and
    Order*, 14 FCC Rcd 19912, 19916-17 ¶ 10 (1999).

[^8]: *See* Wireless Telecommunications Bureau Weekly Receipts and
    Disposals, Report No: 2081 (rel. Feb. 24, 2000).

[^9]: FCC File Nos. 852997-853002, Supplemental Statement in Support of
    Applications Filed by Warren C. Havens to Serve the Trinity River
    with Six AMTS Radio Stations, at 4 (dated Jan. 24, 2000).

[^10]: FCC File Nos. 853003-853006, Supplemental Statement in Support of
    Applications Filed by Warren C. Havens to Serve the San Antonio
    River with Four AMTS Radio Stations, at 4 (dated Jan. 24, 2000).

[^11]: FCC File Nos. 853007-853009, Supplemental Statement in Support of
    Applications Filed by Warren C. Havens to Serve the Lower Colorado
    River with Three AMTS Radio Stations, at 4 (dated Jan. 24, 2000).

[^12]: *Order*, 16 FCC Rcd at 2540 ¶ 3. Watercom argued in a petition to
    deny Havens's applications that the proposed stations would cause
    interference to its stations located near the Texas coastline unless
    there was a 150-mile separation. *Id.* at 2541-42 ¶ 5. In rejecting
    this argument, the Division expressed concern that requiring overly
    conservative co-channel interference protection would be spectrally
    inefficient. *Id.*

[^13]: *Id.* at 2542 ¶¶ 6-7.

[^14]: 47 C.F.R. § 80.475(a) (2001).

[^15]: *Order on Reconsideration*, 16 FCC Rcd at 18047 ¶ 4.

[^16]: *Id.* citing Amendment of Parts 2, 81 and 83 of the rules to add
    the Gulf Intracoastal Waterway to the authorized service area of
    Inland Waterways Communications Systems, *Report and Order*, GEN
    Docket No. 81-822, 51 R.R. 2d (P&F) 440, 443 ¶ 15 (1982) (indicating
    that "adjacent lakes, bays, feeder canals and the like" are not part
    of a waterway for purposes of the AMTS (formerly IWCS) coverage
    requirement, but may be served pursuant to the rule now codified at
    47 C.F.R. § 80.477(c) (AMTS service may be provided to any vessel
    within communication service range of an AMTS station even though
    the vessel may not be operating within the confines of a served
    waterway)); *see also* 47 C.F.R. § 81.913(a) (1982) (setting out
    Mississippi River and its tributaries as separate waterways).

[^17]: Watercom and Regionet are both controlled by Mobex
    Communications, Inc. *See, e.g.,* Transfer of Control from Waterway
    Communications System, Inc. to Mobex Communications, Inc. (granted
    July 13, 2000); Transfer of Control from Regionet Wireless License,
    LLC to Mobex Communications, Inc. (granted Feb. 23, 2000).

[^18]: *Order on Reconsideration*, 16 FCC Rcd at 18048 ¶ 5.

[^19]: *Id.*

[^20]: *Id.* (citing 47 C.F.R. § 80.477(c)).

[^21]: *Id.* at 18048 ¶ 6.

[^22]: Petition for Declaratory Ruling Concerning Requirements of
    Section 309 of the Communications Act of 1934, as Amended, as
    Applied to AMTS Application Denials (dated Jan. 4, 2002). Havens
    addressed this petition to the Chief of the Wireless
    Telecommunications Bureau. In addition to the above-captioned
    applications, the petition also cited Havens's dismissed
    applications to serve the portion of the Arkansas River known as the
    Arkansas Headwaters. *See* Applications of Warren C. Havens, *Order
    on Further Reconsideration*, 16 FCC Rcd 19240 (WTB 2001); *see also*
    Applications of Warren C. Havens, *Order on Further
    Reconsideration*, 16 FCC Rcd 9337 (WTB PSPWD 2001); Applications of
    Warren C. Havens, *Order*, 15 FCC Rcd 22296 (WTB PSPWD 2000).

[^23]: *See* Letter from Ramona E. Melson, Deputy Chief, Public Safety
    and Private Wireless Division, Wireless Telecommunications Bureau to
    John Reardon, Esquire, Mobex Communications, Inc. (dated Apr. 17,
    2002). The Division served the petition for declaratory ruling on
    Regionet in accordance with 47 C.F.R. § 1.1212.

[^24]: 47 C.F.R. § 1.115(a).

[^25]: 47 C.F.R. § 1.115(g).

[^26]: 47 C.F.R. § 1.115(c).

[^27]: Application for Review at 7-8. Havens emphasizes that while he
    does not suggest that the rule is anticompetitive, "the 60 percent
    rule has an anticompetitive effect when coupled with the requirement
    for incumbent protection and the \[Division's\] application of the
    rule." *Id.* at 8.

[^28]: *Id.*

[^29]: Application for Review at 6-7 n.7 citing Amendment of Part 90 of
    the Commission's Rules to Facilitate Future Development of SMR
    Systems in the 800 MHz Frequency Band, *Memorandum Opinion and Order
    on Reconsideration*, PR Docket No. 93-144, 14 FCC Rcd 17556, 17568 ¶
    18 (1999).

[^30]: *Id.* at 7 n.8 citing Amendment of Part 90 of the Commission's
    Rules to Provide for the Use of the 220-222 MHz Band by the Private
    Land Mobile Radio Service, *Third Report and Order; Fifth Notice of
    Proposed Rule Making*, PR Docket No. 89-552, 12 FCC Rcd 10943, 11020
    ¶ 163 (1997).

[^31]: *Id.* at 5-8.

[^32]: *Id.* at 8, 10.

[^33]: *See* 47 C.F.R. § 1.115(c).

[^34]: In any event, we believe that Havens's reliance on "substantial
    service" options under Part 90 is misplaced because these Part 90
    provisions apply to licensees granted authority for a given
    geographic area, whereas Havens's captioned applications are for
    site-based authority. Moreover, we recently concluded that the AMTS
    service differs from the 800/900 MHz Specialized Mobile Radio
    service with respect to how they should be licensed. *See* Amendment
    of the Commission's Rules Concerning Maritime Communications,
    *Second Memorandum Opinion and Order and Fifth Report and Order*, PR
    Docket No. 92-257, 17 FCC Rcd 6685, 6707 ¶ 49 n.211 (2002) (*Second
    MO&O and Fifth R&O*).

[^35]: 47 C.F.R. § 80.475(a) (2001)*.*

[^36]: Application for Review at 8.

[^37]: Recently, after notice and comment, the Commission adopted
    revisions to Section 80.475(a) and other Part 80 AMTS rules under
    which AMTS licenses will be granted by geographic area with a
    substantial service coverage requirement. *See* *Second MO&O and
    Fifth R&O*, note 34, *supra*. We believe this action could be viewed
    as consistent with the policy considerations that Havens presented
    herein. Nonetheless, it also demonstrates that the Division did not
    "misinterpret" the 60-percent coverage rule that governed the
    captioned applications.

[^38]: Application for Review at 9-11.

[^39]: *See id*. at 10 ("Section 80.477(c) does not even remotely
    suggest that additional stations can be added for the sole purpose
    of expanding coverage into inland waterways. That is purely a staff
    interpretation that cannot stand muster.").

[^40]: *Order on Reconsideration*, 16 FCC Rcd at 18048 ¶ 5.

[^41]: *Id*; *see* *also* Applications of Fred Daniel d/b/a Orion
    Telecom, *Order on Reconsideration*, 14 FCC Rcd 1050, 1055 n.43 (WTB
    PSPWD 1999) (citing Quinnipiac College, *Memorandum Opinion and
    Order*, 8 FCC Rcd 6285, 6286 ¶ 12 (1993)) (erroneous grant of
    previous application does not provide a grounds for approving
    subsequent defective applications).

[^42]: *See* Application for Review at 11.

[^43]: *See, e.g.,* FCC File Nos. 853003-006; *see* Supplemental
    Statement in Support of Applications Filed by Warren C. Havens to
    Serve the San Antonio River with Four AMTS Radio Stations at 4-6
    (dated Jan. 24, 2000).

[^44]: Petition for Reconsideration at 16. The tributaries identified
    were the Cibalo Creek as well as the waterway that connects
    Calaveras Lake to the San Antonio River).

[^45]: *See* note 26, *supra* and accompanying text. *See also* Charles
    T. Crawford, *Order*, 17 FCC Rcd 2014, 2017-18 ¶ 10 (2002).

[^46]: Application for Review at 12-16. Specifically, with regard to the
    Trinity River and the associated connecting waterways he identifies
    (Clear Fork, West Fork, Elm Fork, and East Fork), Havens argues that
    407 of the combined 596 miles are covered (68 percent). With regard
    to the Lower Colorado River and the associated connecting waterways
    he identifies (Lake Travis, Pedernales River, Town Lake, Lake
    Austin, the waterway that connects Walter E. Long Lake to Lower
    Colorado River, and the waterway that connects Lake Bastrop to Lower
    Colorado River), he argues that 276 of the combined 442 miles are
    covered (62.4 percent). With regard to the San Antonio River and the
    associated connecting waterways he identifies (Cibalo Creek, and the
    waterway that connects Calaveras Lake to San Antonio River), he
    argues that 183.5 of the combined 296 miles are covered (62
    percent).

[^47]: *Id.* at 13.

[^48]: *Order on Reconsideration*, 16 FCC Rcd at 18047 ¶ 4.

[^49]: 47 C.F.R. § 80.475(a).

[^50]: *See* note 17, *supra*.

[^51]: *See* note 22, *supra* and accompanying text.

[^52]: *See* note Error: Reference source not found, *supra* and
    accompanying text.

[^53]: With exceptions not relevant, Havens's application for review and
    any supplemental thereto had to be filed within 30 days of October
    12, 2001, the release date of the *Order on Reconsideration. See* 47
    C.F.R. § 1.115(d).

[^54]: 47 C.F.R. § 1.115(c).

[^55]: *See* 47 U.S.C. § 405; 47 C.F.R. § 1.106(f).

[^56]: We note that Section 309(e) requires an evidentiary hearing if a
    substantial and material question of fact is presented, or if the
    Commission is unable to make the finding of whether the public
    interest, convenience, and necessity will be served by the granting
    of the application. 47 U.S.C. § 309(e). The D.C. Circuit has stated
    that the decision of whether or not hearings are necessary or
    desirable is a matter in which the Commission's discretion and
    expertise is paramount. *See* *United States of America v. Federal
    Communications Commission*, 652 F.2d 72, 91 (D.C. Cir. 1980). The
    D.C. Circuit has further stated that the Commission is not required
    to hold hearings in matters where the ultimate decision will not be
    enhanced or assisted by the receipt of evidence. *Id.* For example,
    if it is undisputed that an application is not in accordance with
    the rules, then there is no substantial and material question of
    fact that would necessitate a hearing.