**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. 0000782189          |
|                                  | *) |                              |
| ARC, Inc.                        | ** | Station WPLC238              |
|                                  |    |                              |
| Request for Waiver or            | *  |                              |
| Reinstatement                    | *) |                              |
|                                  | ** |                              |
| Application for Industrial/Land  |    |                              |
| Transportation Service Channels  | *  |                              |
| 856-859.3125 MHz                 | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: May 21, 2003 Released: May 22, 2003**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

# introduction

1.  On May 20, 2002, Nextel South Corp, a wholly owned subsidiary of
    Nextel Communications, Inc., (Nextel) filed a petition seeking
    reconsideration of the denial of a request for waiver of Section
    90.693 of the Commission's rules to allow the relocation of
    frequencies and a *de minimis* extension of the existing composite
    interference contours of Nextel's Specialized Mobile Radio (SMR)
    stations in the Richmond, Virginia area. In the alternative, Nextel
    seeks the reinstatement of frequencies 856.3125, 857.3125, 858.3125,
    and 859.3125 MHz (856-859.3125 MHz) under the license for Station
    WPLC238.[^1] For the reasons discussed below, we grant Nextel's
    request for reinstatement.

# background

2.  This case involves applications filed with the Commission pursuant
    to two frequency exchange agreements -- one agreement between Nextel
    and ARC, Inc. (ARC) and another agreement between Nextel and Federal
    Express Corporation (Fed Ex). Prior to entering into the frequency
    exchange agreements, Nextel was authorized under the license for
    Station WPLC238 to operate, in relevant part, on Industrial/Land
    Transportation (I/LT) frequencies 856-859.3125 MHz and 855.8625 MHz
    on a commercial basis. On January 25, 2000, the frequency
    coordinator, Industrial Telecommunications Association, Inc. (ITA),
    certified and filed with the Commission Nextel's application to
    assign the frequencies 856-859.3125 MHz from Nextel's Station
    WPLC257 to ARC.[^2] On that same day, ITA also filed Nextel's
    application to delete the co-channel frequencies 856-859.3125 MHz
    from its license for Station WPLC238.[^3]

3.  On February 24, 2000, while the application to delete the co-channel
    ARC frequencies 856-859.3125 MHz from the license for Station
    WPLC238 was pending, Nextel submitted an application to ITA to
    delete the frequency 855.8625 MHz from the license for Station
    WPLC238 as part of its frequency exchange agreement with Fed Ex.
    According to Nextel, ITA suggested amending Nextel's pending
    application to modify the license for Station WPLC238, rather than
    submitting an entirely separate application.[^4] After Nextel
    agreed, ITA submitted a letter dated April 3, 2000, asking the
    Licensing Branch to amend the ARC modification application to also
    delete 855.8625 MHz from the license for Station WPLC238.[^5] On
    April 14, 2000, the Licensing Branch dismissed ARC's assignment and
    modification applications for Station WPLC257, and returned to
    Nextel its application to modify the license for Station
    WPLC238.[^6]

4.  Because Nextel's returned application included the modification
    pertaining to its frequency exchange agreement with Fed Ex, Nextel
    filed another application on May 30, 2000, asking the Licensing
    Branch to delete frequency 855.8625 MHz from the license for Station
    WPLC238.[^7] Nextel, however, did not include the ARC frequencies
    856-859.3125 MHz in Schedule G of the Fed Ex modification
    application, which lists the frequencies that would be licensed upon
    grant of the application. As a result, when the Licensing Branch
    granted the May 30, 2000 application, the license was issued without
    855.8625 MHz and without the frequencies 856-859.3125 MHz.

5.  According to its Petition, Nextel prepared new applications in
    February 2002, to effect the assignment of 856-859.3125 MHz
    frequencies to ARC. Only in preparing the new applications did
    Nextel discover that the frequencies had already been deleted from
    the license for Station WPLC238.[^8] On February 22, 2002, Nextel
    filed the above-captioned application seeking "to relocate" the
    frequencies under a new station license. Nextel asserts that because
    it was no longer licensed on 856-859.3125 MHz under call sign
    WPLC238, the interference contour proposed in the February 22, 2002
    application would require an extension of Nextel's existing
    composite contour. Nextel therefore included along with the
    application a request for waiver of Section 90.693(b) of the
    Commission's rules to allow for the extension.[^9] On April 24,
    2002, the Licensing Branch denied the waiver request,[^10] and on
    April 29, 2002, dismissed the associated application.[^11]

6.  Nextel filed its Petition on May 20, 2002. In its Petition, Nextel
    seeks reconsideration of denial of the request for waiver to allow a
    *de minimis* extension of its existing composite interference
    contour for the frequencies 856-859.3125 MHz in the Richmond,
    Virginia area. In the alternative, Nextel seeks reinstatement of the
    frequencies under the license for Station WPLC238.

# discussion

7.  We grant reinstatement of the frequencies 856-859.3125 MHz under the
    license for Station WPLC238, because these frequencies were deleted
    from the license in error. The documents that Nextel has provided
    along with its Petition demonstrate that Nextel only intended to
    delete the frequencies 856-859.3125 MHz from the license for Station
    WPLC238 upon assignment of the same channels to ARC under the
    license for Station WPLC257. Specifically, in conjunction with its
    filing the initial applications to effect the assignment of the
    frequencies 856-859.3125 MHz, pursuant to its frequency exchange
    agreement with ARC, Nextel submitted a modification application to
    delete the same co-channel frequencies from its license for Station
    WPLC238 to comply with Commission's interference rules.

8.  After filing the applications pertaining to the frequency exchange
    agreement with ARC, Nextel prepared a second set of applications
    pursuant to its agreement with Fed Ex, including a modification
    application to delete the co-channel frequency 855.8625 MHz from its
    license for Station WPLC238. We believe that when Nextel initially
    prepared the modification application associated with the Fed Ex
    assignment, it reasonably assumed that its ARC assignment and
    modification applications would be processed first, and the four
    856-859.3125 MHz frequencies would be deleted from the license for
    Station WPLC238 before the Fed Ex application was processed. As
    Nextel explains, it omitted the four 856-859.3125 MHz frequencies
    from its Schedule G when it initially prepared the Fed Ex
    modification application to avoid having the ARC frequencies added
    back to the license for Station WPLC238 once the Fed Ex application
    was processed.[^12] Nextel, however, did not file the Fed Ex
    modification application while the applications associated with the
    ARC assignment were pending. Even though the ARC assignment and
    modification applications had been dismissed, Nextel filed the Fed
    Ex modification application and mistakenly omitted the ARC
    frequencies from Schedule G. Thus, when the Fed Ex modification
    application was granted, the four frequencies associated with the
    ARC assignment were not included in the license for Station WPLC238.

9.  Although Nextel made the mistake of omitting the ARC frequencies
    856-859.3125 MHz from Schedule G when it filed the Fed Ex
    modification application, we find it in the public interest to
    reinstate the four I/LT frequencies 856-859.3125 MHz to the license
    for Station WPLC238 under the terms and conditions that applied
    before the frequencies were deleted. No other entity has sought to
    provide service within the contour for Station WPLC238 using the
    four frequencies and reinstatement will allow Nextel and ARC to
    finalize their frequency exchange agreement, which will improve the
    quality of service to the public in the Richmond, Virginia area. We
    therefore grant Nextel's Petition.

# ordering clause

10. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 405 of the Communications Act, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, and Sections 0.331 and 1.106 of the Commission's rules,
    47 C.F.R. §§ 0.331, 1.106, the "Petition for Reconsideration of
    Waiver Request and Dismissal of Application or in the Alternative,
    Reinstate Frequencies \[856.3125, 857.3125, 858.3125, and 859.3125\]
    MHz to Nextel Station WPLC238" filed by Nextel South Corp and Nextel
    Communications, Inc. on May 20, 2002 IS GRANTED to the extent
    described herein.

    FEDERAL COMMUNICATIONS COMMISSION

    Paul D'Ari

    Chief, Policy & Rules Branch

    Commercial Wireless Division

    Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration of Waiver Request and Dismissal of
    Application or in the Alternative, Reinstate Frequencies
    856-859.3125 MHz to Nextel Station WPLC238, filed by Nextel South
    Corp (May 20, 2002) (Petition).

[^2]: Nextel filed an FCC Form 490 Assignment Application and an FCC
    Form 600 Application for Mobile Radio Authorization, File No.
    D136677, to assign the frequencies to ARC, to relocate the station,
    and to allow ARC to retain the call sign WPLC257 after grant of the
    assignment application. Nextel also filed an application, File No.
    D136769, to create a new call sign for all of the frequencies from
    WPLC257 not assigned to ARC.

[^3]: File No. D136768 was assigned to Nextel's application.

[^4]: Petition at 3.

[^5]: Petition at 3 and Exhibit 3 (Letter from Sue Daniel, Spectrum
    Manager, Industrial Telecommunications Association, Inc. to Mary
    Schultz, Chief, Licensing & Technical Analysis Branch, FCC,
    Gettysburg PA (Apr. 3, 2000)).

[^6]: Petition at 3-4.

[^7]: File No. D143480.

[^8]: Petition at 4.

[^9]: Application File No. 0000782189, Attachment, Letter from Robin J.
    Cohen, Regulatory Manager, Nextel to FCC (Feb. 8, 2002) (Waiver
    Request). In its Waiver Request, Nextel argued that the extension
    would be *de minimis*; no licensee or applicant would be adversely
    affected; the public interest would be served by allowing Nextel, as
    the geographic area licensee on the frequencies it would receive
    from ARC, to complete the frequency exchange and provide
    "unfettered" service in its geographic area; and because Nextel
    would be required to cancel the ARC frequencies from all Nextel
    stations within 55 miles, the transaction would result in the return
    of more white space to the Commission than asked for in the *de
    minimis* extension. Waiver Request at 2-3.

[^10]: Letter from Ronald B. Fuhrman, Deputy Chief, CWD, Licensing and
    Technical Analysis Section, to Robin J. Cohen (Apr. 24, 2002)
    (Denial Letter). The Licensing Branch denied Nextel's request for
    waiver based on the decision that Nextel should have sought waiver
    of Section 90.617 of the Commission's rules, which allocates
    spectrum to I/LT entities; Nextel's arguments would not support
    waiver of that rule section; and Nextel did not explain why it could
    not make minimal reductions to the proposed interference contour to
    comply with Commission rules. Denial Letter at 2.

[^11]: Universal Licensing Service Automated Letter, Reference No.
    1404823 (Apr. 29, 2002).

[^12]: Petition at 2-3.