PUBLIC NOTICE![](media/image1.png){width="0.6541666666666667in"
height="0.6604166666666667in"}

FEDERAL COMMUNICATIONS COMMISSION

445 12^TH^ STREET, S.W.

WASHINGTON, D.C. 20554 **DA 01-360**

News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet:
http://www.fcc.gov ftp.fcc.gov

**Released: February 12, 2001**

**WIRELESS TELECOMMUNICATIONS BUREAU**

**SEEKS COMMENT ON REQUEST FOR WAIVER AND PROPOSED AIRTIME CAPACITY
AGREEMENT**

# Comment Date: February 27, 2001

**Reply Comment Date: March 9, 2001**

On December 15, 2000, James A. Kay, Jr. ("Kay"), licensee of various
Specialized Mobile Radio Service ("SMR") stations in the 800 MHz band in
southern California, filed a waiver request ("Waiver Request") with the
Federal Communications Commission, pursuant to section 1.925 of the
Commission's rules. [^1] Specifically, Kay requests waiver of "such
rules and policies as the Commission may deem necessary" to permit him
to enter into a proposed "Airtime Retransmission Capacity Agreement"
("Agreement") with Nextel of California, Inc. ("Nextel").[^2] Under the
proposed Agreement, Kay would provide Nextel access to capacity on Kay's
Los Angeles and Orange County, California, SMR stations licensed on
certain 800 MHz Business and Land Transportation ("BI/LT") channels,
obtained through inter-category sharing, to be incorporated for use in
Nextel's 800 MHz digital iDEN system. The specific call signs and BI/LT
channels that would be subject to the "airtime capacity" Agreement are:

Call Sign WNJA910: 854.8875; 855.0625; 855.2625; 855.2875; 855.5375;
855.6375; 855.6875;

855.8125; 857.4125; 858.9125; 859.7875 MHz

Call Sign WNKV762: 854.9375 MHz

Call Sign WNMY402: 854.7875; 855.0875; 855.5125; 855.7875 MHz

Call Sign WNPJ874: 854.7625; 854.9375 MHz

Call Sign WNXW327: 854.7875; 855.0875; 855.5125; 855.7875 MHz

Call Sign WNXW487: 859.7875 MHz

According to the terms of the Agreement, Kay would retain the licenses
and would continue to be the licensee. The Agreement provides that Kay,
as licensee, would make available to Nextel all of the "airtime
capacity" available under Kay's licenses, and that Nextel would
integrate that capacity into its iDEN network for use by Nextel's
customers. Nextel, as user of the spectrum licensed to Kay, would agree
to comply with all applicable FCC policies and regulations. The
Agreement also states that Kay would remain ultimately responsible for
compliance with the Commission's rules.[^3] Kay contends that the
proposed Agreement is fully compliant with the Commission's existing
rules and policies.[^4]

Kay asserts that the arrangement would serve the public interest by
alleviating an immediate demand for additional spectrum by Nextel,
allowing Nextel to enhance and expand its service to customers in the
Los Angeles area, and by allowing Kay to put his spectrum to more
efficient use than currently possible.[^5]

Kay specifies that, to the extent the Commission deems a waiver
necessary, it could be issued contingent upon, and subject to, the
pending rulemaking in the *Secondary Markets* proceeding.[^6] Kay also
asserts that the proposed "airtime capacity" agreement would be
consistent with the Commission's desire to foster secondary market
spectrum transactions, as set forth in its *Secondary Markets*
proceeding, and specifically in its *Secondary Markets NPRM*. Kay
contends that the Agreement includes provisions consistent with the
policies and kinds of safeguards discussed in that proceeding.[^7]

The Bureau seeks comment on the Waiver Request and the proposed
Agreement. In particular, we seek comment on whether granting Kay's
request would further the public interest. We also seek comment on Kay's
contention that the proposed Agreement is fully compliant with all
existing Commission policies and rules, including Section 310(d) of the
Communications Act of 1934, as amended (the "Act"),[^8] our *de facto*
control policies implementing that provision of the Act,[^9] and the
applicable technical and service rules regarding the spectrum licensed
to Kay.

Interested parties may file comments on or before **February 27, 2001.**
The deadline for filing reply comments is **March 9, 2001.** All
comments and reply comments should reference "Waiver Request --
Expedited Action Requested," and include the designated authority number
of this *Public Notice*, **DA 01-360**. An original and four copies of
all pleadings must be filed with the Commission's Secretary, Magalie
Roman Salas, Federal Communications Commission, 445 Twelfth Street,
S.W., TW-A325, Washington, D. C. 20554. **In addition, one copy of each
pleading should be delivered to each of the following locations:** (1)
the Commission's duplicating contractor, International Transcription
Services, Inc. ("ITS"), 445 Twelfth Street, S.W., Room CY-B492,
Washington, D. C. 20554; (2) Office of Media Relations, Reference
Operations Division, 445 Twelfth Street, S.W., Washington, D.C. 20554;
(3) Don Johnson, Commercial Wireless Division, Wireless
Telecommunications Bureau, Room 4-A332, Federal Communications
Commission, 445 Twelfth Street, S.W., Washington, D. C. 20554; and (4)
Paul Murray, Commercial Wireless Division, Wireless Telecommunications
Bureau, Room 4-B442, Federal Communications Commission, 445 Twelfth
Street, S.W., Washington, D. C. 20554.

[Parties should limit their comments to the Waiver Request and the
proposed Agreement and not comment on any other pending proceeding
involving James Kay or any of his licensed stations]{.underline}.
Specifically, as referenced in Kay's Waiver Request,[^10] we note that
Kay is involved in a pending contested proceeding before the Commission,
WT Docket No. 94-147. Because that proceeding remains pending,
commenters are cautioned to avoid any discussion in their submissions in
response to this *Public Notice* of issues arising in or under
consideration in WT Docket No. 94-147. In this regard, we note that the
Waiver Request and proposed Agreement provides that any waiver grant
would be conditioned on whatever action the Commission takes in light of
a final determination in WT Docket No. 94-147. **The Bureau also
specifically requests that commenting parties serve one copy of each
pleading on the following:** (1) Robert J. Keller, Counsel to James Kay,
P.O Box 33428-Farragut Station, Washington, D.C. 20033; and (2) Gary
Schonman, Enforcement Bureau, Room 3-A660, Federal Communications
Commission, 445 12^th^ Street, S.W., Washington, D.C. 20554.

By this *Public Notice*, we announce, pursuant to section 1.1200(a) of
the Commission's rules, 47 C.F.R. § 1.1200(a),[^11] that this proceeding
will be governed by "permit-but-disclose" *ex parte* procedures under
section 1.1206 of the Commission's rules. 47 C.F.R. § 1.1206.[^12] We
believe the public interest will best be served by applying
permit-but-disclose *ex parte* procedures in this case because this
proceeding involves broad public policy issues. These procedures permit
interested parties to make *ex parte* presentations to the Commissioners
and Commission employees, but require that these presentations be
disclosed in the record of the relevant proceeding. If a person makes a
written *ex parte* presentation to a Commissioner or Commission
employees, the written presentation must be filed with the Commission
Secretary no later than the next business day after the presentation. 47
C.F.R. § 1.1206(b)(1). Oral *ex parte* presentations must be summarized
in writing, filed with the Commission Secretary, and copies must be
delivered to the Commissioners or Commission employees involved with the
oral presentation no later than the next business day after the
presentation. 47 C.F.R. § 1.1206(b)(2). All *ex parte* filings must also
reference the designated authority number of this *Public Notice* as
well as any other applicable docket or file numbers. Accordingly, as of
the release date of this *Public Notice*, all parties making *ex parte*
presentations in this proceeding shall file any written *ex parte*
presentations and summaries of any oral *ex parte* presentations in
accordance with the procedures applicable to permit-but-disclose
proceedings set forth in section 1.1206 of the Commission's rules. 47
C.F.R. § 1.1206.

The waiver request and proposed Agreement are also available for public
inspection and copying in the Reference Center, Room CY-A257, Federal
Communications Commission, 445 Twelfth Street, S.W., Washington, D.C.
20554. Copies of these documents are also available from ITS.

For further information, contact Don Johnson or Paul Murray at (202)
418-7240.

By the Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau.

[^1]: *See generally* Letter, "Waiver Request -- Expedited Action
    Requested," from Robert J. Keller, Counsel for James A. Kay, Jr., to
    William W. Kunze, Chief, Commercial Wireless Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, dated
    Dec. 15, 2000 ("December 15, 2000 Waiver Request"). Kay sought
    expedited review. *Id.* at 1. A draft "Airtime Transmission Capacity
    Agreement" ("*Draft Airtime Transmission Capacity Agreement*") is
    attached to the letter. *See also* Letter from Robert J. Keller,
    Counsel for James A. Kay, Jr., to William W. Kunze, Chief,
    Commercial Wireless Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, dated Feb. 5, 2001.

[^2]: December 15, 2000 Waiver Request at 1.

[^3]: *See Draft Airtime Transmission Capacity Agreement*.

[^4]: December 15, 2000 Waiver Request at 1-2.

[^5]: *See id.* at 2-4.

[^6]: *Id.* at 1-2. *See* Promoting Efficient Use of Spectrum Through
    Elimination of Barriers to the Development of Secondary Markets,
    *Notice of Proposed Rulemaking*, WT Docket No. 00-230, FCC 00-402
    (rel. Nov. 9, 2000) ("*Secondary Markets NPRM*"); *see also*
    Principles for Promoting Efficient Use of Spectrum by Encouraging
    the Development of Secondary Markets*, Policy Statement*, FCC 00-401
    (rel. Dec. 1, 2000).

[^7]: December 15, 2000 Waiver Request at 2-3.

[^8]: 47 U.S.C. § 310(d).

[^9]: *See generally Secondary Markets NPRM* at ¶¶ 70-82.

[^10]: December 15, 2000 Waiver Request at 3.

[^11]: Section 1.1200(a) permits the Commission to adopt modified or
    more stringent *ex parte* procedures in particular proceedings if
    the public interest so requires.

[^12]: This *Public Notice* does not alter the *ex parte* procedures
    currently applicable in WT Docket No. 94-147.