Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File Nos.                    |
|                                  | * |                              |
| MOBILCOM PITTSBURG, INC.         | ) | 0000474637 (Ref. #1286736)   |
|                                  | * |                              |
| ST. MARY'S COLGAN, MT. CARMEL    | * | 0000474713 (Ref. #1286735)   |
| MEDICAL CENTER, MIKE SOUTHARD,   |   |                              |
| THE YARD CART, WHEELER &         | * | 0000474744 (Ref. #1297079)   |
| MITCHELSON CHARTERED, BLUE WATER | * |                              |
| POOLS, BRENT'S ELECTRIC, DOC'S   | ) | 0000474946 (Ref. #1297081)   |
| HEATING & AIR CONDITIONING, B&L  | * |                              |
| SHEETMETAL, DUMM FARMS, JCB      | * | 0000474864 (Ref. #1297080)   |
| FARMS, INC., DAVID CLARK,        |   |                              |
| RIPPEL'S INC., LACY KENT,        | * | 0000545797 (Ref. #1284028)   |
| HEARTLAND RURAL ELECTRIC         | * |                              |
| COOPERATIVE INC., UNIFIED SCHOOL | ) | 0000696428 (Ref. #1286740)   |
| DISTRICT 246, FIRST STATE BANK   | * |                              |
| OF ARMA, CRAWFORD CO. AMBULANCE  | * | 0000696429 (Ref. #1286737)   |
| SERVICE, GERRY DENNET            |   |                              |
| HOMEBUILDING INC.                | * | 0000702092 (Ref. #1286739)   |
|                                  | * |                              |
| Applications for Multiple        | ) | 0000703864 (Ref. #1286741)   |
| Licensed Trunked Radio Systems   | * |                              |
| (YB/FB4) in the Private Land     | * | 0000703869 (Ref. #1286743)   |
| Mobile Radio Services in         |   |                              |
| Southeastern Kansas              | * | 0000702072 (Ref. #1297075)   |
|                                  | * |                              |
|                                  | ) | 0000702078 (Ref. #1297076)   |
|                                  | * |                              |
|                                  | * | 0000702079 (Ref. #1297077)   |
|                                  |   |                              |
|                                  | * | 0000703872 (Ref. #1286727)   |
|                                  | * |                              |
|                                  | ) | 0000705853 (Ref. #1286730)   |
|                                  | * |                              |
|                                  | * | 0000702083 (Ref. #1297078)   |
|                                  |   |                              |
|                                  | * | 0000703884 (Ref. #1286728)   |
|                                  | * |                              |
|                                  | ) | 0000703874 (Ref. #1286738)   |
|                                  | * |                              |
|                                  | * | 0000703885 (Ref. #1286734)   |
|                                  |   |                              |
|                                  | * | 0000703867 (Ref. #1286733)   |
|                                  | * |                              |
|                                  | ) | 0000703873 (Ref. #1286742)   |
|                                  | \ |                              |
|                                  | ) | 0000703882 (Ref. #1286731)   |
|                                  | \ |                              |
|                                  | ) | 0000705855 (Ref. #1286729)   |
|                                  | \ |                              |
|                                  | ) | 0000703865 (Ref. #1286732)   |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 3, 2003 Released: November 6, 2003**

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

# INTRODUCTION

1.  In this *Memorandum Opinion and Order* (*Order*)*,* we consider a
    Consolidated Petition for Reconsideration filed on March 14, 2002,
    by Mobilcom Pittsburg, Inc. (Mobilcom).[^1] Mobilcom requests
    reconsideration of the dismissals by the Licensing and Technical
    Analysis Branch (Branch), Public Safety and Private Wireless
    Division, of each of the captioned applications for trunked private
    land mobile radio (PLMR) "community repeaters."[^2] For the reasons
    discussed below, we deny Mobilcom's Petition.

# BACKGROUND

2.  *Multiple Licensing under Section 90.185*. Under the Commission's
    multiple licensing rule, two or more entities may be licensed for
    the same land station, provided that each licensee complies with the
    Commission's Rules regarding permissible communications and each
    licensee is eligible for the frequency or frequencies on which the
    proposed land station would operate.[^3] A \"multiple-licensed\"
    system, also known as a \"community repeater,\" is a base station in
    the Part 90 PLMR services which functions as a mobile relay,
    enabling low power mobile units to communicate with one another over
    a wide area by picking up a signal from one unit and repeating it to
    another.[^4] Generally, the licensees who share a multiple-licensed
    facility have been brought together by a third party, often the
    manufacturer of the land mobile radio equipment or a retailer who
    operates the station on a profit-making basis.[^5] The Commission
    does not usually regulate this third party\'s activity and the third
    party is not licensed by the Commission.[^6]

3.  In 2000, the Commission re-examined the multiple licensing of
    facilities in the PLMR services and found such practices to be
    permissible as a matter of law and desirable as a matter of public
    policy.[^7] The Commission agreed with a commenter that the
    \"practical realities\" that led to the development of community
    repeaters continue to prevail, *i.e.,* most Part 90 licensees cannot
    independently afford the monthly site rent for a tower or rooftop
    which could provide the necessary coverage, and that if each entity
    had to construct a separate system, it would be difficult to
    coordinate.[^8] However, the Commission also acknowledged comments
    stating that the relevant rules for multiple licensing are widely
    ignored, little enforced, and an invitation to abuse, as well as
    decisions that support the view that not every multiple licensing
    application represents a legitimate private radio cost-sharing
    proposal.[^9] The Commission noted, for example, that in *East River
    Electric Power Cooperative*,[^10] East River, which previously had
    applied unsuccessfully for Specialized Mobile Radio (SMR)[^11]
    frequencies, sought a waiver of the multiple licensing rules to
    permit use of its excess capacity by entities not otherwise eligible
    to use those frequencies.[^12] Opponents of the proposal argued that
    East River simply intended to provide a for-profit commercial
    communications service to other parties[^13] and the Wireless
    Telecommunicatins Bureau agreed, finding that East River's proposal
    was not a legitimate multiple licensing arrangement under Section
    90.185 of the Commission's Rules.[^14] In this connection, the
    Commission noted that while East River's use of its system for
    internal communications remained private mobile radio service
    (PMRS), the proposed sale of excess capacity to third parties did
    not.[^15] Moreover, in *Viking Dispatch Services, Inc.*, the
    Commission rejected a purported sharing proposal on the grounds that
    it really was a for-profit commercial mobile radio service
    (CMRS).[^16] Viking filed applications to be licensed to operate
    forty-two sites for PMRS two-way mobile dispatch systems as a
    third-party provider on a not-for-profit, cost-shared basis.[^17]
    The Commission concluded that Viking's proposal was not PMRS because
    it intended only to provide communications service to others rather
    than using the radio facilities to meet its internal communications
    needs.[^18] The Commission also concluded that it was not a true
    not-for-profit arrangement, because the system manager and equipment
    vendor was an affiliate of Viking.[^19] Therefore, Viking's request
    was denied. The Commission concluded its 2000 review of multiple
    licensing by stating that, as in *Viking* and *East River*, "we must
    continue to closely monitor multiple-licensed systems and judge
    their validity on a case-by-case basis."[^20]

4.  *Captioned applications for multiple licensing under Section
    90.185*. Mobilcom provided trunked, analog 800 MHz SMR service in
    Southeastern Kansas to approximately thirty business customers,
    including the Applicants, using radio facilities licensed under Call
    Signs KNRS271, KNHK797, WNLV446, KNRS224 and WNUX370.[^21] However,
    Mobilcom sold these licenses to a digital SMR operator that plans to
    terminate the analog operations, which will leave no infrastructure
    to support the Applicants' trunked, analog 800 MHz mobiles and
    portables.[^22]

5.  To replace the aforementioned analog systems, in January 2001,
    Mobilcom submitted five "lead" applications to the Personal
    Communications Industry Association, Inc. (PCIA), a
    Commission-certified PLMR frequency advisory committee, each
    requesting authorization to establish a trunked "community repeater"
    system at several locations on 800 MHz Business Category Pool
    frequencies.[^23] However, PCIA notified Mobilcom that applicants
    for trunked community repeaters must file applications "up front"
    for each proposed user to justify the number of frequencies
    requested by showing that each channel would be loaded in accordance
    with the Commission's Rules.[^24] PCIA states that Mobilcom refused
    its request and that it was therefore unable to certify the
    applications for trunking.[^25] PCIA filed the referenced
    applications with the Commission on May 18, 2001, after revising the
    radio service code from trunked business (YB) to conventional
    business (GB).

6.  On July 24, 2001, the Commission sent Notice of Application Returns
    to Mobilcom for three of its applications, requesting that
    Mobilcom (1) justify its need for the number of channels requested
    for internal use; (2) verify that all requested units will be used
    for internal operation; and (3) explain how Mobilcom intends to
    utilize a community repeater when Mobilcom's requested units appear
    to fill the system to capacity.[^26] In response, Mobilcom submitted
    amended applications, requesting YB service for all of its
    applications. Additionally, Mobilcom submitted a letter explaining
    that it was seeking to establish an 800 MHz trunked system pursuant
    to Section 90.617 of the Commission's Rules.[^27] Mobilcom asserted
    that it was establishing four "primary" base stations, and three
    "secondary" stations, and that the primary stations were entitled to
    20 trunked frequency pairs pursuant to Section 90.617.[^28]

7.  In addition, Mobilcom asserted that initial loading was not required
    for its proposed trunked system, and that it was only required to
    *certify* that a minimum of seventy mobiles for each channel would
    be placed in operation within five years of the initial license
    grant.[^29] Mobilcom further stated that it was entitled to increase
    its channel capacity by five channels without meeting any loading
    requirements.[^30] Thus, Mobilcom claimed that it was entitled to
    request a minimum of five channels per site without having to
    demonstrate loading at the time the stations are placed in
    service.[^31] Finally, Mobilcom re-filed its application directly
    with the Commission, arguing that no purpose would be served by
    returning the applications to PCIA for coordination given PCIA's
    prior refusal to coordinate YB stations.[^32] Thereafter, between
    October and December 2001, the Applicants filed the captioned
    applications as "add on" users of Mobilcom's proposed trunked
    stations.[^33]

8.  On February 13, 2002 and February 20, 2002, the Branch dismissed the
    captioned applications, finding insufficient loading to justify
    assigning the requested frequencies to the proposed system.[^34] The
    Branch noted that under Section 90.631(a) of the Commission's Rules,
    non-SMR trunked systems are authorized on the basis of a loading of
    100 mobile stations per channel. Therefore, in order to justify
    authorization for the 32 frequencies sought, the Petitioners would
    be required to demonstrate that its system would support 3200 mobile
    units.[^35] The Branch found that because the proposed system was
    only intended to support 249 mobile units, it could only justify a
    request for three channels. Thus, the Branch denied the Petitioners'
    requests for all remaining channels.[^36] On March 14, 2002,
    Mobilcom filed the instant petition for reconsideration of the
    Branch's dismissals of the captioned applications.[^37]

# Discussion

9.  Turning to the Petition now before us, the captioned applications
    were governed by Section 90.631(a) of the Commission's Rules,[^38]
    which provides that non-SMR trunked systems are authorized on the
    basis of a loading criterion of one hundred (100) mobile stations
    per channel.

10. According to Mobilcom, as an applicant for a rural trunked system,
    it is only required to certify in its application that a minimum of
    70 mobiles for each channel will be placed into operation within
    five years of the initial grant, pursuant to Section 90.631(b).[^39]
    Mobilcom further argues that the Commission does not require
    applications for rural trunked systems to meet any threshold loading
    standards.[^40] We disagree. While the Commission has eliminated the
    channel recovery program for underutilized non-SMR systems, it has
    considered the issue with regard to 800 and 900 MHz non-SMR systems
    and determined that the mobile loading requirement for such systems
    should not be eliminated.[^41] Thus, the Commission's rules continue
    to require applicants for non-SMR system licenses to comply with the
    loading requirements set forth in Section 90.631(a). On the other
    hand, Mobilcom's applications, filed in 2001, are not subject to the
    provisions of Section 90.631(b), which clearly states that such
    provision is only applicable to non-SMR licensees initially
    authorized before June 1, 1993.[^42]

11. Mobilcom points to the loading requirements in Section 90.633(a) of
    our rules to support its assertion that only conventional systems
    are subject to upfront loading requirements.[^43] Section 90.633(a)
    authorizes non-SMR conventional systems on the basis of a minimum
    loading criteria of 70 mobile stations per channel.[^44] Section
    90.633(a), which only governs conventional systems, is not
    applicable to trunked systems, and does not support Mobilcom's
    argument that only conventional systems are subject to upfront
    loading requirements. Indeed, the loading requirements for
    conventional systems set forth in Section 90.633(a) closely mirror
    the loading requirements for trunked systems set forth in Section
    90.631(a).[^45] Therefore, if one concludes that Section 90.633(a)
    includes upfront loading criteria as a term of authorization for
    non-SMR conventional stations, as Mobilcom does, one must also
    conclude that Section 90.631(a) includes upfront loading criteria as
    a term of authorization for non-SMR trunked stations. There is
    simply no support for Mobilcom's assertion that upfront loading is
    not required for non-SMR trunked systems.

12. We note that the upfront loading requirement in Section 90.631(a)
    serves the important function of ensuring that non-SMR applicants
    for a multiple-licensed system are not granted more PLMR channels
    than needed for their private internal communication.[^46] As noted
    in the paragraphs above, the multiple licensing rules recognize the
    practical reality that most Part 90 licensees cannot independently
    afford the monthly site rent for a tower or rooftop that could
    provide the necessary coverage, and that if each entity had to
    construct a separate system, it would be difficult to
    coordinate.[^47] In this connection, in retaining the multiple
    licensing rules, the Commission also noted that multiple licensing
    must not be used to permit a licensee to sell use of its excess
    capacity to entities not otherwise eligible to use those
    frequencies.[^48] Thus, such providers must demonstrate a need for
    the requested channels prior to receiving a license rather than
    after service is established. Moreover, the loading requirement is
    critical to ensuring that proposed non-SMR systems are
    not-for-profit and cost-shared, as required by our Rules.[^49] As we
    have previously noted, the existence of identifiable participants
    with existing communications needs demonstrates that a proposed
    system will be not-for-profit and cost shared in accordance with our
    Rules. On the other hand, a non-SMR provider's inability to
    demonstrate a need for requested frequencies results in the
    appearance that a proposed system will instead be a private carrier
    communications system available for possible subscription, in
    violation of our Rules.[^50] That Mobilcom's operations must be
    not-for-profit and cost-shared highlights the importance of
    compliance with the loading requirements in Section 90.631(a).[^51]

13. Further, Mobilcom insists that the Branch erred by allegedly failing
    to treat similarly situated applicants similarly.[^52] To support
    this claim, Mobilcom notes that the Commission granted its
    application for a three-channel system under call sign WPSR877, and
    another applicant's request for a five-channel system under call
    sign WPTF976.[^53] Mobilcom argues that the applications for the
    referenced stations, which were granted "in full and without
    question," did not contain any demonstration of "up front"
    loading.[^54] With regard to call sign WPSR877, review of Mobilcom's
    application shows that three channels were requested for 210 mobile
    units,[^55] which satisfied the loading requirement for that
    application. On the other hand, upon our review of the application
    for call sign WPTF976, it appears that such application was
    coordinated and granted in error because the application requested
    five channels for only seventy mobile units.[^56] Nonetheless,
    because this grant is a final action, we will not reconsider it
    herein.[^57]

14. Petitioner also argues that the Branch's determination that
    Mobilcom's proposed operation qualifies as a wide area system, and
    its ensuing reliance on Section 90.631(g) was erroneous.[^58]
    Section 90.631(g) of the Commission's rules establishes the
    framework for the authorization of wide area systems, including
    computation of the loading requirements and determinations as to the
    primary or secondary status of such systems.[^59] We note that
    Section 90.631(g) does not displace the number of mobile units
    required to satisfy loading requirements. Therefore, the loading
    requirements provided in Section 90.631(a) is binding on applicants
    seeking to operate primary or secondary systems, regardless of
    whether such systems are wide area. That is, reliance on either
    Section 90.631(a) or Section 90.631(g) yields the same loading
    requirement of 3200 mobile units for the 32 channels requested by
    Mobilcom.[^60] Inasmuch as the Branch's reliance on Section
    90.631(g) did not alter the loading requirements to which Mobilcom
    was subject, the Branch's determination that Mobilcom was
    establishing a wide area system was, at worst, harmless error.[^61]

15. Finally, Mobilcom asserts that its applications should have been
    granted because pursuant to Section 90.631(d), it is entitled to
    receive five extra channels per station.[^62] Section 90.631(d) of
    our Rules,[^63] which serves to facilitate the expansion of rural
    systems, allows a licensee of a trunked system in a rural area to
    increase its system capacity by five more channels than it has
    constructed without meeting the loading requirements in Section
    90.631(a). In this connection, Mobilcom asserts that because one of
    its applications was granted, any of its other applications that
    requests authorization to operate up to five frequencies should be
    granted in accordance with Section 90.631(d). We agree with the
    Branch's determination that Section 90.631(d) is not applicable here
    as Mobilcom's request does not seek to add capacity to a constructed
    station, but rather, to license additional sites. As Mobilcom
    correctly notes, in examining this issue, the Commission has held
    that there is no clear public interest benefit to requiring that
    trunked systems in rural areas meet a threshold loading standard
    *before they can expand their systems* (*emphasis added*).[^64]
    Expansion of a system includes adding frequencies to and increasing
    the service contour of existing operations. Here, Mobilcom sought to
    establish separate site locations, not to add frequencies to Station
    WPSR877. Therefore, we uphold the Branch's determination that
    Mobilcom's applications did not provide sufficient justification for
    the number of frequencies requested.

# Conclusion

16. We agree with the Branch's determination that Mobilcom's
    applications to establish a trunked non-SMR system were subject to
    the loading requirements set forth in Section 90.631(a) of the
    Commission's Rules. Because Mobilcom requested initial authorization
    of a total of 32 channels, Mobilcom was required to demonstrate that
    such channels would be loaded to a capacity of 3200 mobile units.
    Furthermore, the Branch's determination that Mobilcom was
    establishing a wide area system was harmless error. Moreover, we
    agree with the Branch that Section 90.631(d) would only entitle
    Mobilcom to receive five additional channels if it were seeking to
    expand the capacity of a constructed system, rather than to license
    new sites. Therefore, we deny Mobilcom's Petition for
    Reconsideration.

# ORDERING CLAUSES

17. Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405),
    and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that
    the Petition for Reconsideration filed on October 22, 2001, by
    Mobilcom Pittsburgh, Inc., et. al., IS DENIED.

18. 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
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Consolidated Petition for Reconsideration filed by Mobilcom, Inc.,
    *et al*., on March 14, 2002 (Petition). Mobilcom states that it
    filed the Petition on behalf of all of the applicants listed in the
    caption. We will refer to the all of the applicants collectively as
    the "Petitioners," and to the non-Mobilcom applicants collectively
    as the "Applicants," in which case we will separately refer to
    Mobilcom, as appropriate.

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

[^3]: *See* 47 C.F.R. § 90.185.

[^4]: In the Matter of an Inquiry Concerning the Multiple Licensing of
    Land Mobile Radio Systems (\'Community Repeaters\') in the Bands
    806-812 and 851-866 MHz, PR Docket No. 79-107, *Notice of Inquiry*,
    71 FCC 2d 1391, 1392 ¶ 4 (1979) (*MLS Notice of Inquiry*). Multiple
    licensing has been a widespread practice in the land mobile radio
    services since the 1960s. *Id.* at 1392 ¶ 6.

[^5]: *Id*. at 1392 ¶ 5.

[^6]: *Id*. The third-party equipment provider is also sometimes one of
    the multiple licensees in order to serve its own internal
    communications need, but this tends to be an infrequent scenario.
    Relative to this scenario, the Commission has made clear that
    "frequencies above 800 MHz are available to entrepreneurial
    licensees only in the SMR pool. Frequencies in the other pools above
    800 MHz, therefore, remain available to eligible individual
    licensees and non-profit communications cooperatives." Amendment of
    Part 90, Subparts M and S of the Commission\'s Rules, *Memorandum
    Opinion and Order*, 4 FCC Rcd 356, 359 ¶ 31 (1989).

[^7]: In the Matter of Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934, as amended, WT Docket No. 99-87, *Report
    and Order and Further Notice of Proposed Rule Making*, 15 FCC Rcd
    22709, 22765-68 ¶¶ 120-125 (2000) (*1997 Budget Act Report and
    Order*).

[^8]: *Id.*

[^9]: *Id.* (noting that when the Commission implemented the 1993 Budget
    Act, it concluded that Congress recognized the benefits of allowing
    private radio users to enter into legitimate cost-sharing
    arrangements, and did not intend such arrangements to be classified
    as for-profit CMRS. *See* In the Matter of Implementation of
    Sections 3(n) and 332 of the Communications Act --Regulatory
    Treatment of Mobile Services, GN Docket No. 93-252, *Second Report
    and Orde*r, 9 FCC Rcd 1411, 1430 ¶ 47 (1994) (*CMRS Second R&O*).
    This conclusion was based upon the definition of "mobile service"
    adopted in the 1993 Budget Act, *see id.* at 1430 n.75 citing 47
    U.S.C. § 153(27), which refers to communications that may be
    licensed on an "individual, cooperative, or multiple basis." The
    Commission determined that the legislative intent was to provide for
    shared use and multiple licensed "private" communications systems
    exempt from the competitive bidding process. Despite concern that
    these systems are often indistinguishable from commercial systems,
    the Commission deemed it appropriate at that time to retain multiple
    licensing as a non-auction, private radio licensing alternative but
    stated that it would closely monitor the use of multiple licensing
    in order to ensure that unlicensed station managers did not attempt
    to provide for-profit service in competition with CMRS licensees.
    *CMRS Second R&O*, 9 FCC Rcd at 1430-31 ¶¶ 47-49.)

[^10]: *1997 Budget Act Report and Order*, 15 FCC Rcd at 22766 ¶ 125
    *citing* East River Electric Power Cooperative, *Order*, 13 FCC Rcd
    5871 (WTB 1997) (*East River*).

[^11]: A SMR system is one in which licensees provide land mobile
    communications services (other than radiolocation services) in the
    800 MHz and 900 MHz bands on a commercial basis to entities
    otherwise eligible for licensing on the same frequencies. *See* 47
    C.F.R. § 90.7.

[^12]: *East River*, 13 FCC Rcd at 5873-74 ¶¶ 5-6.

[^13]: *Id.* at 5876 ¶ 9.

[^14]: *Id.* at 5876-78 ¶¶ 10-11.

[^15]: *1997 Budget Act Report and Order*, 15 FCC Rcd at 22766 ¶ 125.

[^16]: *Id*. *citing* Viking Dispatch Services, Inc., *Memorandum
    Opinion and Order*, 14 FCC Rcd 18814 (1999) (*Viking*).

[^17]: *Viking*, 14 FCC Rcd at 18815 ¶ 2.

[^18]: *Id.* at 18817-18 ¶ 7.

[^19]: *Id.* at 18818-19 ¶ 8.

[^20]: *1997 Budget Act Report and Order*, 15 FCC Rcd at 22766 ¶ 125.

[^21]: Petition at 2.

[^22]: *Id.*

[^23]: *See* File Nos. 0000474637, 0000474713, 0000474744, 0000474946,
    0000474864.

[^24]: *See* PCIA Comments at 1-2, filed October 15, 2001. "Loading"
    criteria refers to the number of mobile stations that a non-SMR
    applicant must have to be assigned a channel, *e.g.*, "\[n\]on-SMR
    trunked systems will be authorized on the basis of a loading
    criteria of one hundred (100) mobile stations per channel." 47
    C.F.R. § 90.631(a).

[^25]: *See* PCIA Comments at 2.

[^26]: Automatic Notice of Application Return Letter to Mobilcom
    regarding File Nos. 0000474637, 0000474744 and 0000474864 (Return
    Letter).

[^27]: Attachment Letter from Mobilcom filed on Sept. 7, 2001, alerting
    the Commission that it was modifying its radio service codes for all
    five of its pending applications (Service Code Letter).

[^28]: *Id.* "The frequencies specified in Section 90.617 are
    unquestionably available for trunked radio systems. Section
    90.621(a)(1)(iii) . . . explicitly provides that '\[a\]uthorizations
    for non-SMR stations may be granted for up to 20 trunked frequency
    pairs at a time in accordance with the frequencies listed in § . . .
    90.617.' In no case has the applicant requested more than five
    channels at a given location and all frequencies are listed in
    Section 90.617(c). Thus, the requirements for requesting a private
    trunked station are fully satisfied by MPI's applications." Service
    Code Letter at 2.

[^29]: *Id.* at 3.

[^30]: *Id.* at 2-3.

[^31]: *Id*.

[^32]: *Id*.

[^33]: Petition at 6.

[^34]: *See* Letters of the Licensing and Technical Analysis Branch,
    dated February 13, 2002, and February 20, 2002 (Dismissal Letters).

[^35]: *Id.*

[^36]: *Id.*

[^37]: *See supra* note Error: Reference source not found.

[^38]: 47 C.F.R. § 90.631(a).

[^39]: Petition at 7; *see* 47 C.F.R. § 90.631(b).

[^40]: Petition at 8.

[^41]: *See* Amendments to Part 90 of the Commission's Rules Concerning
    Private Land Mobile Radio Services, *Notice of Proposed Rulemaking*,
    WT Docket 97-153, 12 FCC Rcd 13468, 13474-75 ¶¶ 14-15 (1997) citing
    Amendment of Part 90, Subparts M and S of the Commission\'s Rules,
    PR Docket No. 86-404, *Report and Order*, 3 FCC Rcd 1838 (1988),
    *aff\'d Memorandum Opinion and Order*, 4 FCC Rcd 356 (1989).

[^42]: 47 C.F.R. § 90.631(b). Section 90.631(b) is also applicable to
    certain SMR licensees.

[^43]: Petition at 8.

[^44]: 47 C.F.R. § 90.633(a).

[^45]: Pursuant to these rules, the benchmark for conventional systems
    is 70 mobiles, and the benchmark for trunked systems is 100 mobiles.
    *See* 47 C.F.R. §§ 90.631, 90.633.

[^46]: *See* Applications of Viking Dispatch Services, Inc., for up to
    Twenty (20) 900 MHz Private Land Mobile Service Channels at Various
    Locations, 11 FCC Rcd 6685, 6693 ¶ 17 (1996).

[^47]: *Id.*

[^48]: *East River*, 13 FCC Rcd at 5873-74 ¶¶ 5-6.

[^49]: *Id.*

[^50]: *Id.*

[^51]: Mobilcom seeks to establish multiple licensed facilities
    interconnected with the public switched telephone network, pursuant
    to Section 90.185 of the Commission's Rules. 47 C.F.R. § 90.185.
    Section 90.185(c) requires such facilities to comply with Section §
    90.477, which in turn mandates that such sharing arrangements be on
    a non-profit cost sharing basis. *See* 47 C.F.R. § 90.477(b)(2).

[^52]: Petition at 8-9.

[^53]: File No. 0000474894; see Petition at 8.

[^54]: *See* Petition at 8.

[^55]: *See* File No. 0000474894.

[^56]: *Id.* at Schedule H.

[^57]: *See* Application of John M. Yoger, File No. 0000483804 (granted
    Sept. 25, 2001, under call sign WPTF976). No petition for
    reconsideration was filed and the Branch did not set aside this
    action within thirty days of the grant. *See* 47 C.F.R. §§ 1.106,
    1.113; *see also* Applications of San Mateo County, California,
    *Memorandum Opinion and Order*, 16 FCC Rcd 16501 (2001) (explaining
    the administrative finality and ministerial error doctrines, *e.g*.,
    the staff may only set aside final actions that are the result of
    clerical or administrative errors). On the other hand, the error in
    granting the application for call sign WPTF976 provides no basis for
    continuing to grant applications that are inconsistent with the
    Commission's Rules or policies. Rather, appropriate course of action
    is to consider whether to take some action with respect to the
    affected license or licensee. *See* Applications of Warren C.
    Havens, *Memorandum Opinion and Order*, 17 FCC Rcd 17,527, 17,532 ¶
    11 (2002) (citing Application 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)).

[^58]: Petition at 10-11.

[^59]: 47 C.F.R. § 90.631(g). Remote or secondary stations are permitted
    under Rule 90.631(g); however, such stations have always been
    authorized on channels already assigned to the system on a primary
    basis, although the Rule does not specifically indicate this
    requirement. The Rule does specify, however, that loading be counted
    over the full complement of frequencies. Consequently, applicants
    must justify loading with respect to all discreet channels requested
    whether asking for them on a primary or secondary basis.

[^60]: *See* Branch Letter. In pertinent part, the Branch states, ". . .
    We find that there is insufficient loading to justify assigning
    additional spectrum to this system. If the system is evaluated with
    respect to Rule 90.631(a) or (g), a loading of 3200 units would be
    required . . . "

[^61]: We note that because our rules for wide area systems allow
    applicants to use the same mobile units to satisfy its loading
    requirements for each location, it was actually to Mobilcom's
    benefit for its proposed operation to be considered a wide area
    system. *See* 47 C.F.R. § 90.631(g).

[^62]: Petition at 11-12.

[^63]: 47 C.F.R. § 90.631(d).

[^64]: Amendment of Part 90, Subparts M and S, of the Commission's
    Rules, PR Docket 86-404, *Report and Order*, 3 FCC Rcd 1838, 1846 ¶
    71 (1988). The Commission identified an existing licensee as the
    beneficiary of its rule change and offered illustration of thereof
    by stating ". . . For example, a five-channel system may obtain five
    additional channels regardless of their current system loading. To
    add an additional five channels (to a total of fifteen), however,
    the licensee must show that the first five channels are fully
    loaded." *Id*.