**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 02-196         |
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| i2way Request for Declaratory    | ** |                              |
| Ruling                           |    |                              |
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| Regarding the Ten-Channel Limit  | *) |                              |
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| of Section 90.187(e) of the      |    |                              |
| Commission's Rules               | *  |                              |
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| Hexagram Petition to Deny i2way  | ** |                              |
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| Applications                     | *  |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: March 31, 2003 Released: April 1, 2003**

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

# Introduction

1.  On June 7, 2002, i2way Corporation (i2way) filed a Request for
    Declaratory Ruling pursuant to Section 1.2 of the Commission's
    rules, seeking clarification of the ten-channel limit set forth in
    Section 90.187(e) of the Commission's rules (i2way Request).[^1] In
    this Order, we grant in part and deny in part i2way's Request.
    Specifically, we reject i2way's argument that Section 90.187(e) does
    not limit the number of applications that can be filed in an area.
    Rather, we conclude that Section 90.187(e) limits to ten the number
    of channels for which an applicant can apply within a service area.
    A licensee may apply for additional frequencies in that same service
    area only if it certifies that it has constructed and placed into
    operation all licensed channels in that area. We grant, however, the
    request that we return to pending status certain i2way applications
    that were returned because of a staff mistake during the application
    review process. We also dismiss the petition filed by Hexagram, Inc.
    on February 28, 2002, to deny certain i2way applications (Hexagram
    Petition)[^2] because it was not timely filed and does not allege
    facts sufficient to warrant further investigation.

    **II. BACKGROUND**

2.  [Trunked Operations in the Industrial/Business Radio
    Pool]{.underline}. i2way filed multiple applications seeking
    authority to provide trunked operations in the 150-174 MHz and
    450-470 MHz bands.[^3] Frequencies on those bands are divided
    between the Industrial/Business Radio Pool and Public Safety Radio
    Pool and are authorized on a shared basis.[^4] While license
    applications for conventional operations in the Industrial/Business
    Radio Pool are generally limited to one frequency or one pair of
    frequencies,[^5] Section 90.187(e) of the Commission's rules limits
    single applications for trunked operations to ten channels in the
    bands between 150 MHz and 512 MHz (except 220-222 MHz).[^6]
    Subsequent applications for trunked operations in those bands are
    also limited to ten channels and must be accompanied by a
    certification that all of the applicant's existing channels
    authorized for trunked operation have been constructed and placed in
    operation.[^7] In adopting the ten-channel limit for trunked
    operations, the Commission recognized that large public safety
    applicants may require more than ten channels at a single
    location.[^8] As a result, Section 90.187(e) allows public safety
    applicants to apply for more than ten channels at a single location,
    provided the applicant makes a showing of sufficient need.[^9]

3.  [i2way Request for Declaratory Ruling and Hexagram Petition to
    Deny]{.underline}. i2way states in its Request that it intends to
    use both full-power and lower-power frequencies to deploy a
    nationwide "system for assigning frequency pairs to be used by
    two-way customers."[^10] The Commercial Wireless Division's
    Licensing and Technical Analysis Branch returned certain i2way
    applications because the applications were found to be in violation
    of Section 90.187(e). Specifically, certain applications were
    returned because they were filed while other applications were
    pending for the same service area, and other applications were
    returned because i2way failed to provide the necessary construction
    certifications for its licensed facilities where its application
    sought licensing authority in that licensed station's service
    area.[^11] In response to the return of these applications, i2way
    seeks clarification on whether the ten-channel limit "compels the
    return or dismissal of applications in situations where a single
    applicant has filed multiple applications, each requesting 10
    channels, for different sites within the same general service
    area."[^12] The Commercial Wireless Division placed i2way's Request
    on public notice on July 29, 2002.[^13] In response to the public
    notice*,* The Land Mobile Communications Council (LMCC) and
    Industrial Telecommunications Association (ITA) filed comments, and
    Motorola, Inc. (Motorola) and i2way filed reply comments.[^14]
    Finally, the Hexagram Petition requests that the Commission deny
    sixty-six of i2way's applications unless i2way shows that "it can
    protect all incumbent users, including Hexagram."[^15]

# DISCUSSION

4.  We reject i2way's claim that Section 90.187(e) is only a limitation
    on the number of frequencies for which a licensee can apply in one
    application, and not a limitation on the number of applications that
    can be filed simultaneously within the same area.[^16] None of the
    other commenters in this proceeding share i2way's interpretation of
    the ten-channel rule. LMCC, ITA, and Motorola state that Section
    90.187(e) limits an applicant to a request for ten initial channels
    in an area until those channels are constructed and
    operational.[^17] They argue that spectrum efficiency is important
    because the frequencies are shared, and that licensees are required
    to construct before requesting additional channels.[^18]

5.  To support its interpretation of the ten-channel limit, i2way
    focuses solely on the first sentence of Section 90.187(e) to the
    exclusion of all other requirements in Section 90.187. The first
    sentence limits to ten the number of channels permitted in a single
    application for trunked operations. Section 90.187(e), however, also
    describes the circumstances under which a licensee may apply for
    more than ten channels. Section 90.187(e) clearly provides that
    "subsequent applications, limited to an additional 10 channels or
    fewer, must be accompanied by a certification \... that all of the
    applicant's existing channels authorized for trunked operation have
    been constructed and placed in operation."[^19] Section 90.187(e)
    further provides that certified frequency coordinators may require
    documentation in support of an applicant's certification that the
    applicant has constructed and placed into operation the initial ten
    channels before processing another application.[^20] Thus, a
    licensee must construct its maximum of ten authorized channels
    before submitting an application for additional channels.

6.  We also reject i2way's claim that Section 90.187 does not define the
    area relevant to the ten-channel limit. i2way argues that a
    rulemaking proceeding is required to explain how the Commission
    "intends to define the service area" when processing applications
    for trunked operations under Section 90.187.[^21] We disagree.
    Section 90.187(e) limits single applications to ten channels at
    single locations.[^22] The license limit of ten channels at a single
    location is a function of the Commission's process for licensing
    trunked systems under Section 90.187 on a site-specific basis.
    Parties file single applications and individual licenses are granted
    at single locations. Section 90.187(b) delineates service area
    contours at 37 dBu and 39 dBu, respectively, for each VHF and UHF
    station location.[^23] Thus, licensees and frequency coordinators
    must determine the service areas around the single location for
    which an applicant is licensed and the ten-channel limit of Section
    90.187(e) applies to that service area.

7.  The requirement that licensees limit the number of channels
    permitted in a single application would have very little meaning if
    we were to interpret the rule to allow applicants to file multiple
    applications simultaneously at a single location. Under i2way's
    interpretation, there is no distinction, for example, between five
    applications seeking authority to operate ten channels each, and one
    application seeking authority to operate fifty channels in any given
    service area. Moreover, i2way does not explain how the construction
    notification requirement would apply if we allowed simultaneously
    filed multiple applications. We also reject i2way's assertion that
    an interpretation of the rule as a prohibition against multiple
    applications in a single area would violate the Administrative
    Procedure Act (APA).[^24] The Commission adopted the requirements
    for trunked operations under Section 90.187 in notice and comment
    proceedings in compliance with the APA and Commission rules.[^25]
    For the same reason, we reject i2way's argument that the Commission
    has not provided clear notice of the standard used as the basis for
    dismissing i2way's applications.[^26]

8.  In addition, we reject i2way's claim that the ten-channel
    requirement does not apply to decentralized trunked systems on
    shared spectrum. i2way argues that the Commission did not
    contemplate decentralized systems at the time it adopted the
    ten-channel limit[^27] and that, because the ten-channel requirement
    was adopted to prevent the warehousing of spectrum, and shared
    spectrum cannot be warehoused, the limitation does not apply to
    shared spectrum.[^28] We disagree. After adopting the ten-channel
    limit for trunked systems, the Commission found that industry
    members were operating decentralized and hybrid trunked systems in
    addition to centralized trunked systems.[^29] In July 2000, after
    seeking further comment, the Commission revised the definition of
    trunked systems to include centralized, decentralized, and hybrid
    trunked systems and stated that all three systems are subject to
    Section 90.187.[^30] Because the rule applies to all trunked
    systems, including decentralized operations in the
    Industrial/Business Radio Pool, it is also clear that Section
    90.187(e) applies to shared spectrum.[^31] Significantly, the
    Commission did not modify Section 90.187 to limit application of the
    ten-channel rule to centralized systems operating on an exclusive
    basis when it revised the definition of trunked systems.[^32]
    Arguing now that the ten-channel limit under Section 90.187(e) does
    not apply to decentralized trunked systems is effectively a
    late-filed petition for reconsideration of a Commission order that
    was released over two years ago.

9.  Further, we will not grant i2way relief on the basis of its
    assertion that the Commission's current interpretation of Section
    90.187(e) will not afford i2way sufficient spectrum to make its
    proposed operations successful.[^33] This argument is clearly
    irrelevant to any consideration of how we should interpret the
    Commission's rules. We further note that i2way has neither sought a
    waiver of Commission rules limiting the number of applications that
    may be filed nor provided information in its Request to justify the
    grant of a waiver.

10. Because we find no basis on which to grant i2way's Request with
    regard to the ten-channel limit for trunked operations below 512
    MHz, we deny the Request, in part, and direct the Licensing and
    Technical Analysis Branch to process i2way's applications in
    compliance with Section 90.187. i2way applications that do not
    comply with Section 90.187(e) shall not be granted.

11. We grant the i2way Request, however, to the extent that certain of
    its applications for 150-174 MHz were returned based on a
    "misreading" of the applications as requesting thirty
    frequencies.[^34] Specifically, certain applications filed by i2way
    in the 150-174 MHz bands requested licensing authority for ten base
    station frequencies, ten mobile frequencies, and ten frequencies
    that would be used for "talk around" capability. i2way contends that
    the "talk-around" frequencies were a redundant set of frequencies
    from the other base station and mobile frequencies.[^35] We conclude
    that these applications are deemed to request ten channels and may
    be processed upon release of this item if the applications otherwise
    meet Commission requirements, including Section 90.187(e).

12. Finally, we dismiss Hexagram's Petition to Deny, which seeks
    interference protection for all co-channel licensees from i2way's
    operations in the 450-470 MHz bands. Section 1.939 of the
    Commission's rules provides that petitions to deny must be filed no
    later than 30 days after the date of the Public Notice listing the
    application or major amendment to the application as accepted for
    filing.[^36] While most of the applications listed in Hexagram's
    Petition were filed in January 2001, the public notice accepting the
    latest amendments to the applications listed in Hexagram's Petition
    was released December 19, 2001.[^37] The deadline for filing
    petitions to deny, therefore, was January 18, 2002. Hexagram filed
    its Petition on February 28, 2002, nearly six weeks late. Although
    Hexagram filed its Petition with a request to accept the Petition as
    late-filed, Hexagram does not provide any explanation for filing its
    Petition six weeks late.[^38] We therefore deny Hexagram's request
    because it provides no basis on which to grant the request.

13. Moreover, we reject the Petition for failure to provide allegations
    of fact sufficient to make a *prima facie* showing that grant of the
    applications would be inconsistent with the public interest.[^39] In
    its Petition, Hexagram describes how its data is transmitted, but
    does not provide any specific information on which of its licenses
    would be affected or which of the applications listed in Hexagram's
    Petition, if granted, would specifically infringe on Hexagram's
    authority to operate under any of those licenses.[^40] We find
    Hexagram's general statements of facts insufficient to warrant
    further investigation. Accordingly, we dismiss Hexagram's Petition
    and all pleadings related to the Petition.[^41]

14. While we are dismissing Hexagram's Petition on procedural grounds,
    we also reject Hexagram's plea to enforce i2way's "promise" not to
    interfere with any other co-channel licensee's operations regardless
    of the technology used [^42] A "promise," in this case, is not
    relevant because the Commission has technical rules that govern the
    protection required against harmful interference between co-channel
    licensees.[^43] We decline in this proceeding to provide protection
    beyond that afforded under the Commission's rules for secondary or
    co-primary operations in the 450-470 MHz bands. Finally, we reject
    i2way's argument that Hexagram's licenses should be revoked for
    failure to monitor its channels to prevent harmful interference to
    other stations because the argument is outside the scope of this
    proceeding.

# ORDERING CLAUSES

15. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), and Sections 0.331 and 1.2 of the Commission's
    rules, 47 C.F.R. §§ 0.331, 1.2, the Request for Declaratory Ruling
    filed by the i2way Corporation on June 7, 2002, is GRANTED to the
    extent described herein and otherwise DENIED.

16. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and
    309(d) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 309(d), and Sections 0.331 and 1.939 of the
    Commission's rules, 47 C.F.R. §§ 0.331, 1.939, the Petition to Deny
    filed by Hexagram, Inc. on February 28, 2002, is DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Paul D'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: Request for Declaratory Ruling filed by i2way Corporation (June 7,
    2002). Prior to the submission of its Request, i2way filed a number
    of individual, substantially similar requests for declaratory
    rulings, each arising from the return of i2way's applications for
    failure to meet the terms of Section 90.187(e) of the Commission's
    rules. The Commercial Wireless Division's Policy and Rules Branch
    dismissed these requests because i2way filed the requests
    electronically as attachments to i2way's applications via the
    Commission's Universal Licensing System. Wireless Telecommunications
    Bureau Seeks Comment on i2way Corporation's Request for Declaratory
    Ruling Regarding the Ten-Channel Limit of Section 90.187(e),
    *Public* Notice, 17 FCC Rcd 14541 (2002) (*i2way Public Notice)*.
    Pleadings associated with licensing matters may not be
    electronically filed and instead are required to be filed manually.
    *See* Certain Actions Provided For in the Commission's Rules Are Not
    Yet Available For Electronic Filing via the Universal Licensing
    System (ULS) and Must Be Filed Manually, *Public Notice*, 16 FCC Rcd
    12,886 (2001). The issues raised in i2way's prior requests are
    essentially the same issues raised in the i2way Request. *i2way
    Public Notice*, 17 FCC Rcd at 14542.

[^2]: Petition to Deny filed by Hexagram, Inc. (Feb. 28, 2002).

[^3]: i2way Request at 2. i2way explains that the authority sought in
    each application is designed to fulfill a specialized role in its
    overall system design. *Id*. i2way has also filed a number of
    applications seeking authority to provide conventional operations as
    well as trunked operations on exclusive frequencies. The
    applications were accepted for filing on December 19, 2001. Wireless
    Telecommunications Bureau Site-By-Site Accepted for Filing, *Public
    Notice*, Report No. 1047 (Dec. 19, 2001).

[^4]: Section 90.173(a) of the Commission's rules provides that
    "\[e\]xcept as otherwise provided ..., frequencies assigned to land
    mobile stations are available for shared use only and will not be
    assigned for the exclusive use of any licensee." 47 C.F.R. §
    90.173(a).

[^5]: 47 C.F.R. § 90.35(e). Section 90.35(e) provides that "normally
    only one frequency, or pair of frequencies in the paired frequency
    mode of operation, will be assigned for mobile service operations by
    a single applicant in a given area. The assignment of an additional
    frequency or pair of frequencies will be made only upon a
    satisfactory showing of need." *Id*.

[^6]: 47 C.F.R. § 90.187(a); *see* In the Matter of 1998 Biennial
    Regulatory Review -- 47 C.F.R. Part 90 -- Private Land Mobile Radio
    Services; Replacement of Part 90 By Part 88 To Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them;
    and Examination of Exclusivity and Frequency Assignment Policies of
    the Private Land Mobile Services, *Report and Order and Further
    Notice of Proposed Rule Making*, 15 FCC Rcd 16673, 16685-86, ¶¶
    22-25 (2000) (*Part 90 Biennial Review R&O*).

[^7]: 47 C.F.R. § 90.187(e).

[^8]: In the Matter of Replacement of Part 90 By Part 88 To Revise the
    Private Land Mobile Radio Services and Modify the Policies Governing
    Them; and Examination of Exclusivity and Frequency Assignment
    Policies of the Private Land Mobile Services, 14 FCC Rcd 10922,
    10931, ¶ 18 (1999) (*Part 90 Refarming Third MO&O*).

[^9]: 47 C.F.R. § 90.187(e). Section 90.187(e) provides that "\[n\]o
    more than 10 channels for trunked operation in the
    Industrial/Business Pool may be applied for in a single application.
    Subsequent applications, limited to an additional 10 channels or
    fewer, must be accompanied by a certification, submitted to the
    certified frequency coordinator coordinating the application, that
    all of the applicant\'s existing channels authorized for trunked
    operation have been constructed and placed in operation. Certified
    frequency coordinators are authorized to require documentation in
    support of the applicant\'s certification that existing channels
    have been constructed and placed in operation. Applicants in the
    Public Safety Pool may request more than 10 channels at a single
    location, provided that any application for more than 10 Public
    Safety Pool channels must be accompanied by a showing of sufficient
    need. The requirement for such a showing may be satisfied by
    submission of loading studies demonstrating that requested channels
    in excess of 10 will be loaded with 50 mobiles per channel within a
    five year period commencing with grant of the application." *Id.*

[^10]: i2way Request at 2. i2way also states that the requested channels
    will promote competition in the Commercial Mobile Radio Service,
    including competition with cellular companies. *Id*. at 8-9.

[^11]: *See* *i2way Public Notice*, 17 FCC Rcd at 14541. i2way provides
    file numbers for twenty-six applications and states that these file
    numbers "reflect i2way Corporation's best efforts" to identify all
    of the applications found to be in violation of the 10-channel limit
    set forth in Section 90.187(e). *Id.* at n.1.

[^12]: i2way Request at 1-2.

[^13]: *i2way Public Notice,* 17 FCC Rcd 14541 (2002). In the *i2way
    Public Notice*, the Commission designated i2way's Request and the
    applications relevant to Hexagram's Petition as
    "permit-but-disclose" proceedings that are governed by Section
    1.1206 of the Commission's rules. *Id*. at 14543. i2way also has a
    number of applications pending for Commercial Mobile Radio Service
    authorizations that are not among the twenty-six file numbers listed
    in the caption of the i2way Request. In the interest of
    administrative efficiency and minimizing the potential for any
    confusion among interested parties, and because i2way's applications
    implicate similar issues, the Commission has designated all of
    i2way's current pending applications as permit-but-disclose
    proceedings under its *ex parte* rules. *Id*. at 14543, n.18.

[^14]: Comments of the Land Mobile Communications Council (Aug. 28,
    2002) (LMCC Comments); Comments of Industrial Telecommunications
    Association, Inc. (Aug. 28, 2002) (ITA Comments); Reply Comments of
    Motorola, Inc. (Sept. 12, 2002) (Motorola Reply Comments); and Reply
    Comments of i2way Corporation (Sept. 12, 2002) (i2way Reply
    Comments). Several parties also filed *ex parte* comments in this
    proceeding, including Entranosa Water & Wastewater Association,
    Letter from John L. Jones, Entranosa Water & Wastewater Association,
    to Senator Jeff Bingaman (Feb. 26, 2002) (Entranosa *Ex Parte*);
    Buck Electric Co., Letter from Robert De Buck, Buck Electric Co., to
    Senator Peter Domenici (Feb. 21, 2002) (Buck Electric *Ex Parte*);
    KNS Communications Consultants, Electronic Message from L. Sue
    Scott-Thomas, KNS Communications Consultants, to Terry Fishel, FCC
    (Jan. 31, 2002) (KNS *Ex Parte*); Denver Water, Letter from Gayle
    Heazlett, Denver Water, to Terry L. Fishel, FCC (Aug. 26, 2002)
    (Denver Water *Ex Parte*); and Letter from Mitchell Lazarus, Counsel
    for Hexagram, Inc., to Marlene H. Dortch, Secretary FCC (Oct. 25,
    2002) (Hexagram *Ex Parte*).

[^15]: Hexagram Petition at 4. Hexagram is a vendor of automatic meter
    reading systems and operates Part 90 transmitters under the
    low-power rules. *Id*. at 1-2. Hexagram states that it objects to
    "any \[i2way\] application that proposes to share frequencies with
    the systems of Hexagram or its customers." Hexagram E*x Parte* at 1.

[^16]: i2way Request at 4-5 and 7-8. i2way states that it has filed
    multiple applications for the same areas in many parts of the
    country because its system requires "a complement of various radio
    facilities within the same metropolitan area." i2way Request at 2.

[^17]: LMCC Comments at 3-4; ITA Comments at 1, 5; Motorola Reply
    Comments at 2.

[^18]: LMCC Comments at 3-4; ITA Comments at 3-4; Motorola Reply
    Comments at 2.

[^19]: *See* Valley Industrial Communications, Inc., *Order on
    Reconsideration*, 15 FCC Rcd 14823, 14824, ¶ 4, n.10 (PSPWD WTB
    2000) (stating that Section 90.187(e) limits the number of trunked
    channels that can be requested in one application and noting that
    additional channels may be requested once the first ten are placed
    in operation).

[^20]: 47 C.F.R. § 90.187(e). In adopting the rule, the Commission
    concluded that the "maximum number of channels that may initially be
    requested for any given trunked system is ten." *Part 90*
    *Refarming* *Third MO&O*, 14 FCC Rcd at 10930, ¶ 18. The Commission
    further explained that a ten-channel limit would not preclude an
    applicant from requesting additional channels in subsequent
    applications as long as the applicant files a certification that the
    channels for which it was authorized have been constructed and
    placed into operation. *Id*. at 10930-31, ¶ 18.

[^21]: i2way Request at 7. i2way asserts that interpreting Section
    90.187(e) to prohibit the filing of multiple applications within an
    area violates the notice and comment provisions of the
    Administrative Procedure Act, 5 U.S.C. §§ 551 *et seq*., and expands
    Section 90.187(e) beyond its logical limits. i2way Request at 7-9.

[^22]: We also note that while the first sentence in the rule section
    limits single applications to ten channels, the fourth sentence,
    which allows public safety applicants to request more than ten
    channels at a single location, expressly limits single applications
    to single locations. 47 C.F.R. § 90.187(e).

[^23]: 47 C.F.R. § 90.187(b). Section 90.205 also sets out the maximum
    allowable station power level depending on the station's tower
    height and licensed service area for operations in the 150-174 MHz
    and 450-470 MHz bands. *Id*. § 90.205, Tables 1 and 2.

[^24]: i2way Request at 7.

[^25]: *See supra* notes 6 and 8.

[^26]: i2way Request at 8.

[^27]: i2way Request at 6. Motorola also asserts that the ten-channel
    limit only applies to centralized trunked operations. Motorola Reply
    Comments at 3.

[^28]: i2way Request at 5-7. The Commission was guided by industry
    consensus when it adopted the ten-channel limit to prevent the
    warehousing of spectrum. *Part 90 Refarming Third MO&O*, 14 FCC Rcd
    at 10930, ¶ 18.

[^29]: The Commission has previously stated that in a "centralized
    trunked system," the base station controller provides dynamic
    channel assignments by automatically searching all channels in the
    system and assigning to a user an open channel within that system.
    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. A "hybrid trunked system" is one where at least one of the
    frequencies being trunked, but not all the frequencies being
    trunked, requires monitoring to prevent harmful interference to
    other trunked systems. *Part 90 Biennial Review R&O*, 15 FCC Rcd at
    16685-86, ¶ 25; Licensing Trunked Radio Systems Operating Between
    150-512 MHz, *Public Notice*, 15 FCC Rcd 22062, 22062 at n.1 (2000);
    Wireless Telecommunications Bureau Establishes a New Station Class
    Code in Connection with Licensing Trunked Radio Systems Operating
    between 150-512 MHz, *Public Notice*, 16 FCC Rcd 7515, 7515 at n.1
    (2001).

[^30]: *Part 90 Biennial Review R&O*, 15 FCC Rcd at 16685-86 ¶¶ 22-26.
    The application of Section 90.187 to all trunked systems became
    effective on November 12, 2000. 60 Fed. Reg. 60869 (Oct. 13, 2000).

[^31]: Commenters raise concerns that i2way's interpretation of Section
    90.187(e) would allow licensees to warehouse shared spectrum and its
    proposed system could overload already extensively used shared
    channels. ITA argues that spectrum efficiency is a major concern to
    industry because of the limited quantity and high demand for
    spectrum. ITA Comments at 3. LMCC and Motorola argue that the
    ten-channel limit balances concerns with warehousing and
    flexibility. LMCC Comments at 4, Motorola Reply Comments at 2.
    Moreover, LMCC states that without the application of the
    ten-channel limitation "conventional and trunked licensees alike
    could be severely compromised." LMCC Comments at 4. A number of *ex
    parte* filings oppose i2way's applications or Request and warn that
    i2way's proposal could overload shared channels. Entranosa *Ex
    Parte* (stating that the large number of frequencies being sought by
    i2way in the Albuquerque area would "likely overload the use of the
    frequencies used by rural systems and others, which could result in
    false signals being generated and interrupting our operations");
    Buck Electric *Ex Parte* (stating that the large number of
    frequencies being sought by i2way in the Denver area could lead to
    the overloading of radio frequencies, which could "shut down, or
    disable the operation and supply of water to communities in the
    affected area"); KNS *Ex Parte* (stating that the i2way system could
    interfere with alarm systems); Denver Water *Ex Parte* (opposing the
    i2way Request and multiple applications for frequencies filed by
    i2way, indicating that Denver Water depends on telemetry channels to
    monitor and control its water system); Hexagram *Ex Parte* (opposing
    i2way applications that do not provide protection from interference
    for incumbent low-power users, including Hexagram).

[^32]: *Part 90 Biennial Review R&O*, 15 FCC Rcd at 16685-86, ¶¶ 25-27.

[^33]: i2way Request at 8-9.

[^34]: We rejected four applications because the applications sought
    authority to operate on more than ten channels. The file numbers are
    0000400857, 0000401688, 0000402494, and 0000609619.

[^35]: i2way Request at 3-4.

[^36]: 47 C.F.R. § 1.939(a)(2).

[^37]: Wireless Telecommunications Bureau Site-by-Site Accepted for
    Filing, *Public Notice*, Report No. 1047 (Dec. 19, 2001). Most of
    the applications were originally filed in January 2001.

[^38]: Hexagram contends that its filing is not late, arguing that the
    public notice accepting the amendments to the applications "did not
    give actual notice ... of the issues that give rise to this
    opposition." Hexagram then states that "\[i\]n the alternative,
    Hexagram respectfully moves for acceptance of this Petition out of
    time" without providing any explanation. Hexagram Petition at 1-2.

[^39]: *See* 47 C.F.R. § 1.939(d).

[^40]: Hexagram explains that its products are battery powered on a very
    low duty cycle (20-year battery life), transmitting a data burst of
    fewer than 100 milliseconds two or three times a day. Hexagram
    Petition at 3. Hexagram argues that i2way's method of monitoring for
    vacant channels in the 450-512 MHz bands will miss Hexagram's
    extremely short transmissions or misclassify them as noise. Hexagram
    asserts that, as a result, the i2way system will mistakenly read
    these channels as vacant and cause interference to Hexagram's
    customers. *Id*. at 4. Hexagram also states that i2way's system may
    seize these channels for periods of time (30-60 seconds) that may
    disrupt Hexagram communications. Letter from Mitchell Lazarus,
    Hexagram, to William Caton, Acting Secretary, FCC at 2 (Mar. 5,
    2002).

[^41]: i2way also filed an untimely Opposition to the Hexagram Petition
    on April 1, 2002, along with a motion to accept its filing as late,
    Motion for Acceptance of Late-Filed Opposition to Petition to Deny
    of Hexagram, Inc. filed by i2way Corporation (Apr. 4, 2002). Because
    we are dismissing the Petition, this request is moot.

[^42]: Hexagram states that in a letter attached to some of the
    contested applications "i2way claims to protect 'all co-channel
    users, whether employing modern digital systems or legacy analog
    equipment.'" Hexagram Petition at 3, n.4 (citing Letter from
    Frederick J. Day, Counsel for i2way Corporation to FCC at Enclosure
    1 (June 5, 2001)). In its Reply, Hexagram characterizes the
    statement as a "promise to protect" all other users "regardless of
    their primary or secondary status." Hexagram Reply at 2. In its *ex
    parte* presentation, Hexagram contends that i2way's system may
    interfere with Part 90 low-power devices that operate at an
    extremely low duty cycle and require that a channel be available
    when there is an emergency. Hexagram *Ex Parte* at 1-2. Hexagram
    requests that the Commission direct i2way to protect all incumbent
    users, including low-power users with short transmissions, from
    interference. Hexagram Petition at 4; Hexagram *Ex Parte* at 3-5.

[^43]: *See e.g.*, 47 C.F.R. §§ 90.7, 90.173(a) and (b), 90.403(e).