**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | Call Sign WPOT488            |
|                                  | * |                              |
| Application of CN WAN            | ) | File No. 750164              |
| Corporation                      | * |                              |
|                                  | * |                              |
| for a new Multiple Address       |   |                              |
| System (MAS) Station in Fort     | * |                              |
| Atkinson, Wisconsin              | * |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** July 28, 2000 **Released:** August 2, 2000

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

# **[i. INTRODUCTION]{.smallcaps}**

1.  The Division has before it a petition for reconsideration (CN WAN
    petition or petition) filed on September 21, 1999 by CN WAN
    Corporation (CN WAN).[^1] CN WAN requests reconsideration of the
    August 23, 1999, decision of the Licensing and Technical Analysis
    Branch (LTAB), Public Safety and Private Wireless Division, which
    dismissed in part the above-referenced application of CN WAN for a
    new Multiple Address System (MAS) station on the frequencies
    952/928.20625 MHz and 952/928.34375 MHz in Fort Atkinson, Wisconsin
    (LTAB decision).[^2] For the reasons set forth below, the LTAB
    decision is affirmed.

**II. BACKGROUND**

1.  On June 28, 1999, CN WAN filed an FCC Form 415 application for
    authorization to operate a new MAS station on the frequencies
    952/928.20625 MHz and 952/928.34375 MHz in Fort Atkinson,
    Wisconsin.[^3] The application was accompanied by demonstration of
    frequency coordination. LTAB concluded that the proposed use of the
    frequency pair 952/928.34375 MHz would be processed in

2.  accordance with the receipt date of CN WAN's application.[^4] That
    frequency pair, and LTAB's processing of CN WAN's application for
    it, is not at issue in CN WAN's petition for reconsideration. The
    LTAB decision, however, determined that, notwithstanding evidence of
    frequency coordination, grant to CN WAN of the other frequency pair
    that it sought, 952/928.20625 MHz, did not provide the interference
    protection required under the rules for an existing station, and
    dismissed that portion of the application requesting frequency pair
    952/928.20625 MHz.[^5]

3.  Specifically, the LTAB decision determined that CN WAN's frequency
    engineering analysis failed to demonstrate interference protection
    to station KNKK276, licensed to Paging Network of Illinois, Inc.
    (PageNet), on frequency pair 952/928.2125 MHz. The LTAB decision
    also determined that CN WAN's requested frequency pair of
    952/928.20625 MHz was short-spaced to station KNKK276 without the
    required short-spacing agreement. For these reasons, the LTAB
    decision dismissed CN WAN's request for frequency pair 952/928.20625
    MHz as defective.[^6]

4.  CN WAN seeks reconsideration of the LTAB decision on the basis that
    there was no need for interference protection for station KNKK276,
    or for a short-spacing agreement, because PageNet had notified the
    Commission, before CN WAN's application was filed, that it was no
    longer operating Station KNKK276 at locations with which CN WAN
    would otherwise have intefered. In fact, PageNet had requested the
    Commission to modify its license for the station to delete these
    operations at each of the short-spaced sites.[^7] CN WAN further
    notes that the PageNet notifications to delete the relevant
    frequencies appeared on the Commission's Universal Licensing System
    (ULS) as "granted" effective September 7, 1999.[^8]

**III. DISCUSSION**

1.  At the time that CN WAN filed its application for the frequency pair
    952/928.20625 MHz, PageNet was licensed for sites on the frequency
    pair 952/928.2125 MHz for Station KNKK276. The frequency pair sought
    by CN WAN, 952/928.20625 MHz, is a 12.5-kilohertz-offset channel
    that shares the same spectrum space as PageNet's frequency pair,
    952/928.2125 MHz, which is a 25-kilohertz channel. Notwithstanding
    that PageNet had notified the Commission that it sought to delete
    the sites that conflicted with CN WAN's application, Station KNKK276
    was authorized for operation at these sites when the subject CN WAN
    application was filed.

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1.  The engineering analysis upon which the coordination for CN WAN's
    application was based should have considered the operation of
    Station KNKK276, and should have shown interference protection to
    that station and all of its sites of record as of the time of CN
    WAN's application filing.[^9] The pendency of PageNet's requests to
    modify its license does not alter the protection to its existing
    operations afforded by the Commission's rules. Unless and until the
    Commission granted PageNet's modifications to its license, the
    relevant sites and frequencies specified under the authorization for
    Station KNKK276 required interference protection. The rules do not
    provide CN WAN, or the frequency coordinator, with an option to
    consider only "actual" operation or "probable" operation. The rules
    are explicit, and afford "existing stations" interference
    protection.[^10] So long as the relevant operations of Station
    KNKK276 were specified in the Commission's database, even if PageNet
    sought modification to delete these operations, they were, until
    Commission action deleting them, required to be protected by the
    provisions of the rules regarding co-channel interference.[^11] The
    engineering analysis, and the frequency coordination CN WAN received
    that was based upon it, therefore, are both deficient in this
    regard.

2.  We are concerned that to decide otherwise would undermine the
    methodology and integrity of spectrum assignment in these MAS bands.
    So long as PageNet was authorized for the sites in question, it had
    authority to operate at those sites on the specified frequencies. It
    could do so notwithstanding the pendency of its notifications to
    delete those sites. Moreover, until grant of modifications to its
    license based upon those notifications, it had the right to
    voluntarily withdraw its request to modify its license based upon
    those notifications, and, instead, to continue to operate on the
    frequencies at the sites at issue. To grant CN WAN's application
    under such circumstances would create a licensing conflict that our
    rules and policies are designed to avoid.

3.  Further, MAS frequencies on the spectrum at issue in this matter are
    assigned on a first-come, first-served basis,[^12] and are
    coordinated. Our rules and policies concerning assignment of
    spectrum on a first-come, first-served basis are crafted to ensure
    that as spectrum becomes available, all entities and members of the
    public have an equal opportunity afforded to them to obtain the
    spectrum after the availability of that spectrum is reflected in
    Commission databases.[^13] Allowing a prematurely-filed application,
    such as CN WAN's, to be considered acceptable for filing, and/or to
    process it, would be unfair to all other similarly-situated
    prospective applicants for MAS spectrum, and undermine their
    opportunity to file first-in-time or competing applications.

**IV. CONCLUSION AND ORDERING CLAUSE**

1.  For the reasons stated above, the action of LTAB dismissing CN WAN's
    application for the frequency pair 952/928.20625 MHz is affirmed.

2.  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 pursuant to Sections 0.331 and 1.106 of the Commission's Rules,
    47 C.F.R. §§ 0.331, 1.106, that the petition for reconsideration
    filed by CN WAN Corporation on September 21, 1999, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration, In the Matter of CN WAN Corporation,
    Application for New MAS Station in Fort Atkinson, Wisconsin, Call
    Sign WPOT488, File No. 750164 (filed Sep. 21, 1999).

[^2]: Letter from Steven Linn, Deputy Chief, Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division,
    Wireless Telecommunications Bureau, to CN WAN Corporation, Attention
    Mr. Ben H. Lyon, PS&PWD-LTAB-652 (dated Aug. 23, 1999).

[^3]: FCC File No. 750164. *See Public Notice*, Report No. 2049 (July
    13, 1999).

[^4]: LTAB decision at para. 4.

[^5]: LTAB decision at paras. 1-4. In its petition at note 4, CN WAN
    notes that the LTAB decision incorrectly refers to the frequency
    952.58125 MHz, and CN WAN clarifies this frequency was not part of
    its application. We agree, and, like CN WAN, treat any reference in
    the LTAB decision to the "952.58125/928.20625 MHz" frequency pair to
    instead be a reference to the "952/928.20625 MHz" frequency pair.

[^6]: Although the LTAB decision characterized this dismissal as
    pursuant to the provisions of former 47 C.F.R. § 1.958, it was
    instead pursuant to 47 C.F.R. § 1.934, which includes the provisions
    of former Section 1.958.

[^7]: File Nos. 0000013414, 0000013423, 0000013429 and 0000013435,
    deleting sites operating on the frequency pair 952/928.21250 MHz
    under the call sign KNKK276 (notifications filed May 13, 1999).

[^8]: CN Wan reconsideration at 3.

[^9]: Public Notice, *Application Requirements for Stations in the
    Private Operational Fixed Microwave Service* (Mimeo 0125, Oct. 7,
    1985).

[^10]: *See generally* 47 C.F.R. § 101.105.

[^11]: *Id*.

[^12]: Essentially, each day is a new filing "window" for Part 94
    Private Operational Fixed Microwave Service stations. *See* 47
    C.F.R. § 1.227(b)(4).

[^13]: *See*, *e.g.*, Order, *In the Matter of Applications of Samuel
    Ferguson To Operate a Two-Way Mobile System In the San Diego,
    California AREA On the Freqencies 861.3500/816.3500 MHz, and A to Z
    Enterprises, Inc. To Operate Operate a Two-Way Mobile System In the
    San Diego, California AREA On the Freqencies 861.3500/816.3500 MHz*,
    15 FCC Rcd 4363 (Chief, Public Safety and Private Wireless Div.,
    WTB, Feb. 25, 2000).