Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FCC File No. D108068         |
|                                  | *) |                              |
| NATIONAL SCIENCE AND TECHNOLOGY  | ** | FCC File No. C007248         |
| NETWORK, INC.                    |    |                              |
|                                  | *  |                              |
| Licensee of Private Land Mobile  | *) |                              |
| Radio Station WPMJ456, Glendale, | ** |                              |
| California                       |    |                              |
|                                  | *  |                              |
| FISHER WIRELESS SERVICES, INC.   | *) |                              |
|                                  | ** |                              |
| Licensee of Private Land Mobile  |    |                              |
| Radio Station WPNQ697, Running   | *  |                              |
| Springs, California              | *) |                              |
|                                  | ** |                              |
| HENRY RADIO, INC.                |    |                              |
|                                  | *  |                              |
| Informal Petitions               | *) |                              |
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| AMERICAN AUTOMOBILE ASSOCIATION  |    |                              |
|                                  | *  |                              |
| Informal Complaint               | *) |                              |
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| and                              |    |                              |
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| MOBILE RELAY ASSOCIATES          | *) |                              |
|                                  | ** |                              |
| Licensee of Private Land Mobile  |    |                              |
| Radio Stations                   | *  |                              |
|                                  | *) |                              |
| WPHH415, La Crescenta,           | ** |                              |
| California, WPQF246, Palm        |    |                              |
| Springs, California, WPQA973,    | *  |                              |
| Indio, California, WPPE290,      | *) |                              |
| Claremont, California, WPPE823,  | ** |                              |
| Escondido, California, WPPE824,  |    |                              |
| Dulzura, California, WPPF223,    | *  |                              |
| Pasadena, California, and        | *) |                              |
| WPPF353, Poway, California       | ** |                              |
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+----------------------------------+----+------------------------------+

#### ORDER ON RECONSIDERATION

**Adopted: August 4, 2006 Released: August 7, 2006**

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

1.  *Introduction.* We have before us a petition for reconsideration
    filed by National Science and Technology Network, Inc. (NSTN), on
    July 2, 2003.[^1] NSTN seeks reconsideration of an order of the
    Wireless Telecommunications Bureau's former Public Safety and
    Private Wireless Division (Division)[^2] that modified NSTN's
    license for Station WPMJ456, Glendale, California.[^3] Specifically,
    the Division modified the license by altering its station class code
    from FB8 (centralized trunked)[^4] to FB6 (decentralized
    trunked).[^5] This action was taken pursuant to an earlier order
    proposing to modify NSTN's license, and affording NSTN an
    opportunity to object to the proposed modification.[^6] In its
    petition for reconsideration, NSTN contends that the Division
    improperly failed to hold a formal evidentiary hearing and that the
    procedures followed by the Division amounted to an abuse of
    discretion and a denial of due process. For the reasons stated
    below, we conclude that the Division acted in a procedurally correct
    manner, and accordingly deny NSTN's petition for reconsideration.

2.  *Background*.[^7] In 1997, the Commission decided to permit
    centralized trunking in the private land mobile radio (PLMR) bands
    between 150 MHz and 512 MHz.[^8] The Commission emphasized that
    centralized trunking would be permitted only in those areas where
    exclusivity is recognized by the Commission or where an
    applicant/licensee has obtained the consent of all licensees whose
    service areas overlap a circle with a radius of seventy miles from
    the proposed trunked system's base station.[^9]

3.  The instant matter originated on May 14, 1998, when the American
    Automobile Association (AAA), an FCC-certified frequency coordinator
    for PLMR spectrum, filed an application on behalf of NSTN to operate
    in the centralized trunked mode in the 450 MHz band.[^10] NSTN
    received an authorization to operate centralized trunked
    Industrial/Business Station WPMJ456 on August 12, 1998.
    Approximately three months later, on November 5, 1998, the
    Industrial Telecommunications Association, Inc. (ITA), another
    FCC-certified PLMR frequency coordinator, filed an application on
    behalf of Fisher Wireless Services, Inc. (Fisher), requesting
    authorization for Fisher to operate in the decentralized trunked
    mode in the 450 MHz band.[^11] In November 1998, NSTN filed an
    "informal petition" in which it requested the deletion of frequency
    pairs 452.3000/457.3000 MHz and 452.6500/457.6500 MHz from Fisher's
    application due to the close proximity of NSTN's use of the same
    frequencies in its operation of Station WPMJ456.[^12]

4.  In response to an FCC request to examine the frequency coordination
    and procedural issues surrounding the Fisher application, ITA
    submitted a frequency analysis demonstrating that on virtually every
    frequency at each of the four base station sites authorized for
    Station WPMJ456, there were multiple incumbent co-channel or
    adjacent channel licensees located within seventy miles of NSTN's
    base stations.[^13] As a result, ITA opined that Station WPMJ456
    should never have received a "YG" (trunked) license.[^14] On
    February 10, 2000, Mobile Relay Associates (MRA), licensee of
    several PLMR stations located in the Los Angeles, California area,
    filed a letter in support of ITA's suggestion to modify the license
    for Station WPMJ456, stating that NSTN's license had been obtained
    through an "improper, defective coordination,"[^15] as MRA had three
    co-channel applications pending before the Commission at the time
    NSTN's application was coordinated by AAA.[^16]

5.  On June 26, 2000, the Division's Licensing and Technical Analysis
    Branch (Branch or LTAB) requested that AAA demonstrate the
    sufficiency of the frequency coordination conducted for Station
    WPMJ456.[^17] The Branch noted that although AAA indicated that it
    does not maintain frequency coordination records,[^18] Section
    90.187(b)(2)(v) of the Commission's Rules[^19] requires trunked
    licensees to maintain letters of consent and to provide copies to
    the FCC upon request.[^20] LTAB further noted that if AAA's
    coordination of Station WPMJ456 was not proven to be valid, LTAB
    would "institute a license modification proceeding."[^21] On July
    21, 2000, AAA responded not by supplying the requested information,
    but by taking the position that it was "unreasonable" to ask it to
    recreate the "state of affairs" that existed in 1997 or 1998.[^22]
    On January 22, 2001, NSTN submitted to the Branch a letter
    challenging ITA's standing to contest NSTN's license for Station
    WPMJ456, and asserting that the license could not be revoked "absent
    a full trial before an administrative law judge."[^23]

6.  On January 26, 2001, NSTN filed an informal petition requesting that
    the Commission cancel the licenses of eight stations licensed to MRA
    for "causing harmful co-channel interference to the users of
    \[NSTN's\] FB-8 \[sic\] YG trunked stations."[^24] The Branch
    dismissed that petition on April 6, 2001.[^25] On July 29, 2002,
    NSTN filed a petition for reconsideration of the Branch's dismissal.

7.  On August 9, 2002, the Division proposed to modify NSTN's license
    for Station WPMJ456 by changing its station class code from a
    centralized trunked station (station class FB8) to a decentralized
    trunked station (station class FB6).[^26] The Division concluded
    that the original NSTN application should not have been coordinated
    or granted because it did not provide the requisite interference
    protection to several existing stations and pending applications,
    and there was no record that any of the required consents were
    obtained.[^27]

8.  On September 9, 2002, NSTN filed a petition protesting the proposed
    license modification.[^28] In its protest, NSTN made two arguments
    why the license for Station WPMJ456 should not be modified.[^29]
    First, NSTN claimed that the frequency coordination performed for
    the Fisher application was "improper due to the congestion of the
    relevant frequencies."[^30] Second, NSTN pointed to its reliance on
    the Commission's grant of its license and stated that it would
    "suffer grievous injury as a result of any change in status of the
    license."[^31] The Division rejected both arguments.[^32]
    Consequently, the Division modified NSTN's license for Station
    WPMJ456 by altering its station class code from FB8 to FB6. In
    addition, the Division dismissed as moot NSTN's petition for
    reconsideration of the Branch's dismissal of NSTN's informal
    petition requesting that the Commission cancel MRA's licenses,
    because the petition was premised on Station WPMJ456 having FB8
    status.[^33] On July 2, 2003, NSTN filed the instant petition for
    reconsideration of the Division's decision.[^34]

9.  *Discussion.* NSTN states that the modification of its license
    changing the station class from FB8 to FB6 is the equivalent of a
    license revocation, because it rendered the license economically
    valueless. NSTN therefore argues that it was entitled to a formal
    hearing prior to such action, pursuant to Section 312 of the
    Communications Act of 1934, as amended (the Act).[^35] It also
    argues that the Division was prohibited from taking any action with
    respect to the license once the grant became final. As set forth
    below, we find these arguments unpersuasive.

10. First, NSTN contends, "The modification . . . is actually the
    economic equivalent of revocation. The Order destroys an FB8 license
    which has substantial economic value, as it is an exclusive license,
    and puts in its place a valueless FB6 license, which is economically
    worthless because it enjoys no effective protection from harmful
    co-channel interference."[^36] We disagree. License modification is
    not the equivalent of license revocation, even if the modification
    reduces the station's utility in the licensee's perspective.[^37]
    NSTN is still authorized to operate Station WPMJ456. The imposition
    of a monitoring requirement neither revokes the license nor renders
    it valueless.[^38] Thus, a Section 312 revocation hearing was not
    required under the circumstances presented.

11. Rather, this matter is governed by Section 316 of the Act.[^39]
    Section 316, as implemented by Section 1.87 of the Commission's
    Rules,[^40] provides that the Commission may modify a license to
    promote the public interest, convenience, and necessity, but no such
    order of modification will become final until the licensee is
    provided an opportunity to protest the proposed modification.[^41]
    It also provides that, if a hearing is conducted, the burden of
    proof shall be upon the Commission.[^42] Contrary to NSTN's
    assertions,[^43] Section 316 does not provide for an automatic right
    to a formal hearing prior to license modification.[^44] Rather, to
    warrant an evidentiary hearing, the licensee's protest "must . . .
    set forth a substantial and material question of fact,"[^45] *i.e.*,
    specific allegations of fact sufficient to show that the action
    would be *prima facie* inconsistent with the public interest,
    convenience and necessity.[^46] Only if this *prima facie* case is
    made must the Commission proceed to the second level of inquiry and
    determine whether the totality of the evidence arouses sufficient
    doubt that further inquiry to determine the facts is necessary.[^47]

12. As noted above, the Division concluded in the order proposing
    modification that NSTN's application for Station WPMJ456 should not
    have been granted because it did not provide the requisite
    interference protection to existing stations and pending
    applications. NSTN had the same opportunity, as AAA had previously,
    to explain how the application complied with the Commission\'s
    rules, but NSTN's protest did not raise any question of fact
    concerning whether NSTN obtained the requisite concurrences or
    otherwise provided the required interference protection. Rather,
    NSTN argued that changing the class of its station would not be in
    the public interest because: (1) the Bureau had not resolved another
    reconsideration proceeding where the matter of overlapping licenses
    was at issue; and (2) the modification would cause severe hardship
    to users of NSTN\'s system. In the *Order of Modification,* the
    Division addressed the arguments NSTN did raise and found that the
    proposal raised no significant issues of fact. It further found that
    a formal hearing was not warranted to address NSTN\'s issues.[^48]

13. Again, in its instant petition for reconsideration, NSTN fails to
    present any specific allegations of fact different from those relied
    on by the Division in reaching its decision. Moreover, NSTN has not
    presented any evidence that a factual issue exists that might
    warrant a formal hearing or an affidavit[^49] in support of the
    facts it does allege.[^50] As courts have held, the standard for
    making out a *prima facie* case \"in effect says that the Commission
    must look into the possible existence of a fire only when it is
    shown a good deal of smoke.\"[^51] In this case, NSTN provides no
    allegations or evidence of any factual \"smoke\" in the modification
    proceeding.

14. Finally, NSTN argues that the Division's action was untimely,
    because "NSTN's FB8 license became incontestable thirty days from
    date of grant, except by the institution of formal revocation
    proceedings."[^52] This is incorrect. Relevant authority clearly
    establishes that the Commission\'s authority to modify licenses
    under Section 316 is not limited in time or to the correction of
    post-licensing events.[^53]

15. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i), 316, and 405
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    316, and 405, and Sections 1.87 and 1.106 of the Commission's Rules,
    47 C.F.R. §§ 1.87 and 1.106, that the Petition for Reconsideration
    filed by the National Science and Technology Network, Inc. on July
    2, 2003, IS DENIED.

16. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

###### FEDERAL COMMUNICATIONS COMMISSION

Michael J. Wilhelm

> Chief, Public Safety and Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration of FCC Order of Modification Released
    June 4, 2003, filed July 2, 2003 (NSTN Petition).

[^2]: 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. *See* Reorganization of
    the Wireless Telecommunications Bureau, *Order*, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003).

[^3]: National Science and Technology Network, Inc. *Order of
    Modification,* 18 FCC Rcd 11321 (WTB PSPWD 2003) (*Order of
    Modification*)*.*

[^4]: In a "centralized trunked system," the base station controller
    provides dynamic channel assignments automatically searching all
    channels in the system for, and assigning to a user, an open channel
    within that system.

[^5]: In a "decentralized trunked system," which is also a system of
    dynamic channel assignment, the system continually monitors the
    assigned channels for activity both within the trunked system and
    outside the trunked system, and transmits only when an open channel
    is found.

[^6]: *See* National Science and Technology Network, Inc., *Memorandum
    Opinion and Order*, 17 FCC Rcd 15728 (WTB PSPWD 2002) (*Modification
    MO&O*).

[^7]: The background of this matter is set forth at greater length in
    the *Order of Modification*.

[^8]: *See* Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them,
    *Second Report and Order*, PR Docket No. 92-235, 12 FCC Rcd 14307,
    14337-38 ¶¶ 56-59 (1997).

[^9]: *Id.* In 1999, the Commission provided applicants with an
    alternate means of obtaining an authorization for a centralized
    trunked system by obtaining the concurrence of any existing
    co-channel or adjacent channel licensee whose 39 dBu service contour
    (UHF) or 37 dBu service contour (VHF) is intersected by the 21 dBu
    (UHF) or 19 dBu (VHF) interference contour of a proposed trunked
    station. *See* Replacement of Part 90 by Part 88 to Revise the
    Private Land Mobile Radio Services and Modify the Policies Governing
    Them, *Third Memorandum Opinion and Order*, PR Docket No. 92-235, 14
    FCC Rcd 10922, 10926-27 ¶¶ 6-9 (1999).

[^10]: *See* FCC File No. 9805D108068 (filed May 14, 1998).

[^11]: *See* FCC File No. 9811C007248 (filed Nov. 5, 1998).

[^12]: Henry Radio Informal Petition, dated November 25, 1998.

[^13]: *See* Letter dated June 16, 1999 from Mark E. Crosby,
    President/CEO of ITA, to Eric Smith, Commercial Wireless Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission at 1.

[^14]: *Id*. at 1-2.

[^15]: *See* Letter dated Feb. 10, 2000 from David J. Kaufman, counsel
    to MRA, to Herb Zeiler, Deputy Chief, Public Safety and Private
    Wireless Division.

[^16]: *See* FCC File Nos. D103740, D104462, and D107518 (subsequently
    granted respectively under Call Signs WPPE290, WPHH415, and
    WPPF223).

[^17]: *See* Letter dated June 26, 2000 from Steve Linn, Deputy Chief,
    on behalf of Mary Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau, to Elizabeth Sachs, counsel to Fisher
    (LTAB Letter).

[^18]: *See* Letter dated Nov. 15, 1999 from Michele C. Farquhar,
    counsel to AAA, to Ronald B. Fuhrman, Deputy Chief, Technical
    Analysis Section, Commercial Wireless Division.

[^19]: 47 C.F.R. § 90.187(b)(2)(v).

[^20]: LTAB Letter at 1 n.1.

[^21]: *Id*. at 1-2.

[^22]: *See* Letter dated July 21, 2000 from Gary Ruark, Frequency
    Coordinator, AAA, to Mary Shultz, Chief, Licensing and Technical
    Analysis Branch, Public Safety & Private Wireless Division, Wireless
    Telecommunications Bureau.

[^23]: Letter dated January 22, 2001 from Alan M. Lurya, counsel to
    NSTN, to Mary Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau

[^24]: Letter from Alan Lurya, counsel to NSTN, to Mary Shultz and Steve
    Linn, Chief, Licensing and Technical Analysis Branch, Public Safety
    and Private Wireless Division, Federal Communications Commission,
    filed Jan. 26, 2001; *see also* Letter from Alan Lurya to Mary
    Shultz and Steve Linn, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, Federal
    Communications Commission, filed Feb. 2, 2001.

[^25]: *See* Letter dated Apr. 6, 2001 from Mary Shultz, Chief,
    Licensing and Technical Analysis Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau, Federal
    Communications Commission to Alan M. Lurya.

[^26]: *Modification MO&O*, 17 FCC Rcd at 15734 ¶ 19.

[^27]: *Id*. at 15734 ¶¶ 16-17.

[^28]: Protest of Proposed License Modification, filed Sept. 9, 2002.

[^29]: *Id*. at 4.

[^30]: *Id*. at 5.

[^31]: *Id*. at 6.

[^32]: With respect to the first argument, the Division concluded that
    NSTN had not provided any legal or technical support for its
    contention that the frequencies were fully occupied; and, even if
    the frequencies were fully occupied, the argument failed to address
    the Division's conclusion that NSTN's application was improperly
    granted. *Order of Modification*, 18 FCC Rcd at 11325-26 ¶ 12. With
    respect to the second argument, the Division concluded that the
    effect of the proposed modification on NSTN did not outweigh the
    benefits, because it would be more equitable to modify NSTN's
    license than it would be to completely bar Fisher and MRA from
    operating on the subject frequencies. *Id.* at 11326 ¶ 13. In any
    event, we note that NSTN failed to explain and document how it would
    be injured.

[^33]: *Id.* at 11326 ¶ 14.

[^34]: MRA filed an opposition on July 15, 2003. Opposition to Petition
    for Reconsideration, filed July 15, 2003 (Opposition). NSTN filed a
    reply on July 25, 2003. Reply to Opposition of Mobile Relay
    Associates (MRA), filed July 25, 2003 (Reply).

[^35]: 47 U.S.C. § 312.

[^36]: NSTN Petition at 9; *see also* Reply at 3.

[^37]: *See* Pacific Gas and Electric Company, *Memorandum Opinion and
    Order*, 18 FCC Rcd 22761, 22765 ¶ 11 (2003) (concluding that
    modifying a license by reducing the base transmitter power did not
    constitute a revocation); *see also* Review of Spectrum Sharing Plan
    among Non-Geostationary Satellite Orbit Mobile Satellite Service
    Systems in the 1.6/2.4 GHz Bands, *Report and Order, Fourth Report
    and Order and Further Notice of Proposed Rulemaking*, IB Docket No.
    02-364, 19 FCC Rcd 13356, 13395 ¶ 89 (2004) (rejecting assertion
    that changing the Big LEO channel plan constituted a revocation
    rather than a modification).

[^38]: Indeed, a review of the Commission's Universal Licensing System
    database indicates that forty-seven of NSTN's sixty-four other
    licenses (excluding Station WPMJ456) for base station operations
    list frequencies authorized on an FB6 basis. Thus, it appears that
    NSTN does in fact place some value on an FB6 license.

[^39]: 47 U.S.C. § 316.

[^40]: 47 C.F.R. § 1.87.

[^41]: 47 U.S.C. § 316(a); 47 C.F.R. § 1.87(a).

[^42]: 47 U.S.C. § 316(b); 47 C.F.R. § 1.87(e).

[^43]: *See*, *e.g*., NSTN Petition at 3.

[^44]: Modification of FM or Television Licenses Pursuant to Section 316
    of the Communications Act, *Order*, 2 FCC Rcd 3327, 3327 ¶ 1 (1987)
    (*Section 316 Order*).

[^45]: *Id.* at 3327 ¶ 5.

[^46]: *See, e.g.,* Serafyn v. FCC, 149 F.3d 1213 (D.C. Cir. 1998)
    (*Serafyn*); Gencom Inc. v. FCC 832 F.2d 171, 180-81 (D.C. Cir.
    1987); Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 394-95
    (D.C. Cir. 1985) (*Citizens for Jazz on WRVR*).

[^47]: *Section 316 Order*, 3 FCC Rcd at 3327 ¶ 5; *Citizens for Jazz on
    WRVR*, 775 F.2d at 394-95.

[^48]: In addition, we note that NSTN did not request a hearing in the
    protest it submitted to the Division, and thus may be deemed to have
    waived any right to a hearing. *See* 47 C.F.R. § 1.87(h). As noted
    above, although NSTN asserted to the Branch that its license could
    not be revoked without a hearing, that claim was irrelevant because,
    as explained, *supra,* NSTN's license was not revoked.

[^49]: Under Section 316(a)(3), protests shall contain specific
    allegations of fact supported by affidavit of a person or persons
    with personal knowledge thereof, except for facts of which official
    notice may be taken. *See* 47 U.S.C. § 316(a)(3); 47 C.F.R. §
    1.87(d).

[^50]: In its reply to MRA's opposition to its petition for
    reconsideration, NSTN appears to contest the Division's conclusion
    that modifying the license for Station WPMJ456 would serve the
    public interest. It states, "This decision puts the health and
    safety of the public at risk. Many of NSTN's customers are engaged
    in emergency response activities, which directly affect public
    health and safety. For example, there are several paramedic
    ambulance companies who are users of the system." Reply at 4. This
    is not sufficient to raise a factual issue based on the record thus
    far established in this proceeding. NSTN does not quantify the
    number of emergency responders using its system, or explain how the
    use of decentralized trunking instead of centralized trunking would
    impair their operations, or compare the composition of its users
    with that of MRA's and Fisher's users.

[^51]: *Citizens for Jazz on WRVR, Inc*., 775 F. 2d at 397; *see also
    Serafyn,* 149 F. 3d at 1220.

[^52]: NSTN Petition at 9.

[^53]: California Metro Mobile Communications, Inc. v. FCC, 365 F. 2d
    38, 45 (D.C. Cir. 2004) (concluding that "section 316 'contains no
    limitation on the time frame within which \[the Commission\] may act
    to modify a license' and that its action under the section 'is not
    subject to the limitations on revocation, modification or
    reconsideration imposed by \[s\]ection 405'") (citations omitted);
    *see*, *e.g.*, Amendment of Part 2 of the Commission's Rules to
    Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to
    Support the Introduction of New Advanced Wireless Services,
    including Third Generation Wireless Systems, *Eighth Report and
    Order, Fifth Notice of Proposed Rule Making and Order*, ET Docket
    No. 00-258, 20 FCC Rcd 15866, 15877 n.62 (2005).