**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matters 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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**MEMORANDUM OPINION AND ORDER**

**Adopted: April 29, 2004 Released: May 5, 2004**

By the Commission:

# Introduction

1.  On May 1, 2003, i2way Corporation (i2way)[^1] and Hexagram, Inc.
    (Hexagram)[^2] filed Applications for Review seeking the reversal of
    an *Order*[^3] issued by the former Commercial Wireless Division's
    Policy and Rules Branch (Branch).[^4] In that *Order*, the Branch
    denied in part i2way's Request for Declaratory Ruling seeking
    clarification that the ten-channel limit set forth in Section
    90.187(e) of the Commission's rules does not limit the number of
    applications that can be filed in an area (i2way Request).[^5] The
    *Branch Order* concluded that Section 90.187(e) limits an applicant
    to filing a single application in a single service area, and limits
    to ten the number of channels in an application. Once licensed
    facilities are constructed and placed into operation, the licensee
    may file an additional application limited to ten channels in the
    same service area. The *Branch Order* also dismissed Hexagram's
    petition seeking denial of several i2way applications because the
    petition was not timely filed and did not allege facts sufficient to
    warrant further investigation.[^6] For the reasons discussed below,
    we deny both Applications for Review.

# Background

2.  i2way proposes to use both full-power and lower-power frequencies to
    deploy a digital-based dispatch system that would provide two-way
    mobile voice and data communications in major urban areas throughout
    the country.[^7] To deploy its system, i2way filed multiple
    applications seeking authority to provide trunked operations in the
    150-174 MHz and 450-470 MHz bands.[^8] Frequencies on those bands
    are divided between the Industrial/Business Radio Pool and Public
    Safety Radio Pool and are authorized on a shared basis.[^9] 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). 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.[^10]

3.  The Commercial Wireless Division's Licensing and Technical Analysis
    Branch returned certain i2way applications because i2way had filed
    multiple applications in the same service area or failed to provide
    the construction certifications required under Section
    90.187(e).[^11] In response to the return of these applications,
    i2way filed its Request on June 7, 2002, seeking clarification
    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 released a public notice on July 29, 2002, seeking
    comment on i2way's Request.[^13] Three parties filed comments in
    response to the public notice,[^14] and several other parties filed
    *ex parte* comments.[^15] All commenters opposed i2way's
    interpretation of Section 90.187(e).[^16]

4.  In its *Order*, the Branch rejected i2way's argument that Section
    90.187(e) only restricts the number of channels that can be proposed
    in a single application, not the number of applications that can be
    filed or the location of any proposed facilities.[^17] The Branch
    concluded that Section 90.187(e) limits to ten the number of
    channels in an application for which a party may apply within a
    site-specific service area as defined under Section 90.187(b). Thus,
    a single application refers to a single service area. The Branch
    also explained that 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.[^18] In response, i2way filed its Application for Review
    reiterating its argument that the rule section only limits the
    number of channels permitted in a single application. i2way further
    argues that a single application could refer to a single transmitter
    location without limiting a party from filing subsequent
    applications in that transmitter's service area. According to i2way,
    the Commission must provide notice through a rulemaking proceeding
    that the ten-channel limit in Section 90.187 applies to service
    areas before dismissing i2way's applications.[^19]

5.  Hexagram makes and operates radios for the automatic reading of
    utility meters. Hexagram states that its nationwide system operates
    under the low-power rules of the same set of Part 90 frequencies
    proposed in the i2way applications. Hexagram's licenses are
    authorized on a secondary basis.[^20] Hexagram's Petition requested
    that the Commission deny 66 of i2way's applications unless i2way
    demonstrated that "it \[could\] protect all incumbent users,
    including Hexagram."[^21] The Branch dismissed Hexagram's Petition
    and Hexagram filed an Application for Review reiterating its
    arguments from its Petition to Deny.[^22]

# DISCUSSION

6.  We reject i2way's argument that Section 90.187 of our rules limits
    only the number of channels in a single application, not the number
    of applications that can be filed within a single service area.
    i2way argues that the language in Section 90.187 does not mention
    the terms "location" or "service area," and further claims that the
    rule's reference to "application" is the only term defining the
    scope of any restriction.[^23] i2way then argues that an application
    is merely a standard form and Section 90.187(e) limits the number of
    channels that may be applied for on each standard form.[^24] We
    disagree. An application for a Commission license is more than an
    electronic filing on a standard form. In submitting an application
    for a site-specific license, the applicant seeks authority to
    provide service in accordance with our rules. In granting the
    application, the license designates specific coordinates for
    locating a transmitter and our rules delineate the area contours
    within which the licensee is authorized to provide its service. In
    this case, Section 90.187(b) delineates service area contours at 37
    dBu and 39 dBu, respectively, for each VHF and UHF station
    location.[^25] Moreover, i2way's claim that the rule does not
    mention the term "location" is incorrect. In adopting an exception
    to the ten-channel limit for Public Safety Pool applicants, the rule
    expressly states that the applicants "may request more than 10
    channels at a single location provided that any application ... be
    accompanied by a showing of sufficient need." Thus, a single
    application to provide service on ten channels at a site-specific
    location is a request to provide service on those channels within a
    service area defined by our rules based on the transmitter location.

7.  Moreover, we reject i2way's argument that the limitation on filing
    multiple or subsequent applications could apply to a single
    transmitter location, rather than a defined service area. A
    requirement limiting the number of channels permitted on a single
    transmitter, rather than in a service area, would vitiate the
    underlying purpose of the rule, which is to prevent spectrum
    warehousing and promote spectrum efficiency in this shared channel
    environment.[^26] If Section 90.187(e) only limited subsequent
    applications to the location of the licensed transmitter, there
    would be nothing to prevent an applicant from filing an application
    at one site and another application a few hundred feet away, thereby
    extending the original service area without ever constructing any
    facilities or placing any channels into operation. Under i2way's
    argument, an applicant could simultaneously file several
    applications that could encumber large amounts of spectrum over vast
    areas without ever constructing any licensed channels. This outcome
    clearly undermines the underlying purpose of Section 90.187(e).

8.  We further reject i2way's argument that it followed a reasonable
    interpretation of the rule, and the Commission must therefore give
    prior notice of any prohibition against multiple applications in a
    service area before dismissing its applications.[^27] The
    interpretations of Section 90.187(e) that i2way offers fail to
    explain how the restriction on filing subsequent applications absent
    certification that licensed facilities have been constructed would
    apply. Under i2way's interpretation that the rule section only
    limits the number of channels proposed in a single application,
    there would be 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.[^28] i2way's contention that the rule section could be
    understood to limit applicants to ten channels at a single
    transmitter location is effectively the same as arguing that the
    rule only limits the number of channels in a single application.
    Under either interpretation, an applicant could file an unlimited
    number of applications without ever constructing a single facility.
    An interpretation of a rule that disregards essential elements of
    that rule cannot be deemed reasonable. Moreover, the Commission
    adopted the requirements for trunked operations under Section 90.187
    in notice and comment proceedings in full compliance with agency
    administrative rules.[^29] For these reasons, 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.

9.  Further, we will not grant i2way relief on the basis of its
    assertion that our interpretation of Section 90.187(e) will not
    afford i2way sufficient spectrum to accommodate the deployment of
    its digital system.[^30] This argument is irrelevant to any
    consideration of how we interpret Commission 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 at any point during this proceeding to justify the grant
    of a waiver of those rules. Accordingly, we deny i2way's Application
    for Review.

10. Finally, we also deny Hexagram's Application for Review, which seeks
    acceptance of its late-filed Petition and interference protection
    for all co-channel licensees from i2way's operations in the 450-470
    MHz bands. Hexagram filed its Petition nearly six weeks after public
    notice of i2way's applications.[^31] Hexagram acknowledges that it
    filed its Petition late, but argues that the Commission's standard
    public notice of the filing of Industrial/Business Pool applications
    did not provide "actual notice."[^32] Hexagram's argument that the
    public notice listing i2way's applications did not give actual
    notice because it did not include "i2way's request to substitute its
    own technology for the required frequency coordination"[^33] -- the
    sole issue raised in Hexagram's Petition -- is without merit. Our
    standard public notice accepting applications for filing includes
    information that puts a licensee on notice that another party has
    applied to operate as a co-channel licensee in its service
    area.[^34] The public notice further states that the listed
    applications are subject to the petition to deny rules contained in
    Section 309 of the Communications Act, as amended.[^35] Hexagram's
    contention that we provide detailed substantive information about
    applications in our standard public notices is not only
    administratively inefficient and overly burdensome, but unnecessary
    and contrary to established Commission procedures. The standard
    notice provides sufficient information to alert existing licensees
    and those with pending applications that we have received a proposal
    for service that may affect existing services or other pending
    proposals. The affected licensees or applicants are then responsible
    for determining whether to petition the Commission to deny the
    application listed in the notice.[^36] Hexagram has therefore
    provided an insufficient basis on which to accept its late-filed
    Petition.

11. We further reject Hexagram's argument that we must deny i2way's
    applications or require i2way to provide interference protection to
    all co-channel licensees, including those licensees such as Hexagram
    authorized to operate on a secondary basis. Hexagram asserts that
    i2way has made a commitment to providing this blanket interference
    protection in exchange for avoiding frequency coordination for its
    applications.[^37] We have no record that i2way sought an exemption
    from frequency coordination of its applications and we decline in
    this proceeding to provide protection beyond that afforded under our
    rules for secondary or co-primary operations in the 450-470 MHz
    bands. i2way's applications must be processed through a certified
    frequency coordinator before we process those applications.
    Accordingly, we deny Hexagram's Application for Review.

# ORDERING CLAUSES

12. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and
    303(r) of the Communications Act, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 1.115 and 90.187 of the Commission's rules, 47
    C.F.R. §§ 1.115, 90.187, the Application for Review filed by i2way
    Corporation on May 1, 2003, IS DENIED.

13. Accordingly, IT IS FURTHER ORDERED that, pursuant to Sections 4(i)
    and 303(r) of the Communications Act, as amended, 47 U.S.C. §§
    154(i), 303(r), and Sections 1.115 of the

    Commission's rules, 47 C.F.R. §§ 1.115, the Application for Review
    filed by Hexagram, Inc. on May 1, 2003, IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Application for Review, filed by i2way Corporation (May 1, 2003)
    (i2way Application for Review).

[^2]: Application for Review, filed by Hexagram, Inc. (May 1, 2003)
    (Hexagram Application for Review).

[^3]: In the Matter of i2way Request for Declaratory Ruling Regarding
    the Ten-Channel Limit of Section 90.187(e) of the Commission's Rules
    and Hexagram Petition to Deny i2way Applications, *Order*, 18 FCC
    Rcd 6293 (2003) (*Branch Order*).

[^4]: In late 2003, the Commission's Wireless Telecommunications Bureau
    was reorganized. Many of the mobile radio services licensing issues
    formerly under the Bureau's Commercial Wireless Division, including
    operations that i2way proposes in its applications, are now under
    the purview of the Bureau's new Mobility Division. *See* FCC's
    Wireless Bureau Announces Reorganization, *Public Notice* (rel. Nov.
    24, 2003).

[^5]: 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 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 for declaratory ruling were essentially the same issues
    raised in its Request filed in June 2002, and thus were consolidated
    and resolved by the *Branch* *Order*.

[^6]: *Branch Order*, 18 FCC Rcd at 6298-99, ¶¶ 12-13.

[^7]: i2way Application for Review at 2.

[^8]: 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).

[^9]: 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).

[^10]: 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*.;
    *see* 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, *Third
    Memorandum Opinion and Order*, 14 FCC Rcd 10922, 10930-31, ¶ 18
    (1999) (*Part 90 Refarming Third MO&O*) (adopting the ten-channel
    limit for trunked operations).

[^11]: Specifically, some 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 the application sought licensing authority in the
    licensed station's service area. *See* *i2way Public Notice*, 17 FCC
    Rcd at 14541. In its Request, i2way provided file numbers for
    twenty-six applications and stated 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).

[^14]: In response to the public notice*,* the Land Mobile
    Communications Council and Industrial Telecommunications Association
    filed comments, Comments of the Land Mobile Communications Council
    (Aug. 28, 2002); Comments of Industrial Telecommunications
    Association, Inc. (Aug. 28, 2002); and Motorola, Inc. and i2way
    filed reply comments, Reply Comments of Motorola, Inc. (Sept. 12,
    2002); Reply Comments of i2way Corporation (Sept. 12, 2002).

[^15]: The parties that filed *ex parte* comments in this proceeding
    included Entranosa Water & Wastewater Association, Letter from John
    L. Jones, Entranosa Water & Wastewater Association, to Senator Jeff
    Bingaman (Feb. 26, 2002); Buck Electric Co., Letter from Robert De
    Buck, Buck Electric Co., to Senator Peter Domenici (Feb. 21, 2002);
    KNS Communications Consultants, Electronic Message from L. Sue
    Scott-Thomas, KNS Communications Consultants, to Terry Fishel, FCC
    (Jan. 31, 2002); Denver Water, Letter from Gayle Heazlett, Denver
    Water, to Terry L. Fishel, FCC (Aug. 26, 2002); and Letter from
    Mitchell Lazarus, Counsel for Hexagram, Inc., to Marlene H. Dortch,
    Secretary FCC (Oct. 25, 2002) (Hexagram *Ex Parte*).

[^16]: *Branch Order*, 18 FCC Rcd at 6296, ¶ 4.

[^17]: The Branch granted in part i2way's Request to return to pending
    status four applications that were returned because of a staff error
    made during the application review process. *Branch Order*, 18 FCC
    Rcd at 6286, ¶ 11.

[^18]: *Branch Order*, 18 FCC Rcd at 6295-97, ¶¶ 4-6.

[^19]: Application for Review at 4. Hexagram filed an Opposition,
    Opposition to Application for Review, filed by Hexagram, Inc. (May
    19, 2003), and i2way filed a Reply, Reply to Opposition to
    Application for Review, filed by i2way Corporation (June 3, 2003).
    Hexagram included a Motion for Acceptance of Late Filing (Motion)
    because it filed its Opposition one day late. Hexagram states that
    i2way failed to serve a copy of the Application for Review on
    Hexagram, Motion at 1, and i2way acknowledges the omission in its
    Reply, stating that it subsequently filed a Submission of
    Certificate of Service *Nunc Pro Tunc*. i2way Reply at 2. In light
    of these circumstances, we grant Hexagram's Motion and accept its
    Opposition.

[^20]: Hexagram Application for Review at 2-3.

[^21]: Hexagram Petition at 4. Hexagram stated in its *ex parte* filed
    in the Petition to Deny proceeding that it objects to "any \[i2way\]
    application that proposes to share frequencies with the systems of
    Hexagram or its customers." Hexagram *Ex Parte* at 1.

[^22]: i2way filed an Opposition, Opposition to Application for Review,
    filed by i2way Corporation (May 16, 2003) (i2way Opposition), and
    Hexagram filed a Reply, Reply to Opposition to Application for
    Review, filed by Hexagram, Inc. (May 29, 2003) (Hexagram Reply).

[^23]: i2way Application for Review at 4-6.

[^24]: i2way Application for Review at 3-4.

[^25]: 47 C.F.R. § 90.187(b).

[^26]: *See Part 90 Refarming Third MO&O*, 14 FCC Rcd at 10930-31, ¶ 18
    (explaining that the ten-channel limitation and construction
    certification requirement were adopted to address the concern that
    PLMR shared spectrum could be potentially warehoused).

[^27]: i2way Application for Review at 6-7 (citing *Satellite
    Broadcasting Co., Inc. v. FCC* 824 F.2d 1 (D.C. Cir. 1987)). In
    *Satellite Broadcasting*, the Court of Appeals concluded that where
    distinct regulations identifying the appropriate place for filing an
    application are inconsistent and ambiguous, administrative due
    process prohibits the agency from dismissing an application where a
    party followed a reasonable interpretation of the rules. 824 F.2d at
    3-4.

[^28]: *Branch Order*, 18 FCC Rcd at 6287, ¶ 7.

[^29]: *Part 90 Refarming Third MO&O*, 14 FCC Rcd 10922, 10931, ¶ 18; 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, 16683-87, ¶¶ 22-28 (2000).

[^30]: i2way Application for Review at 2.

[^31]: While i2way originally filed most of its applications in January
    2001, the public notice accepting the latest amendments to the
    applications listed in Hexagram's Petition was released December 19,
    2001, Wireless Telecommunications Bureau Site-by-Site Accepted for
    Filing, *Public Notice*, Report No. 1047 (Dec. 19, 2001),
    establishing a deadline of January 18, 2002, for filing petitions to
    deny. Hexagram filed its Petition on February 28, 2002, nearly six
    weeks late.

[^32]: Hexagram Application for Review at 3.

[^33]: Hexagram Application for Review at 9-10.

[^34]: Our standard public notices accepting applications for filing
    include the applicants name, file number, receipt date of the
    application, frequencies proposed in the application, and the
    proposed location for the license, and whether the application is
    new or a modification or some other type of application.

[^35]: 47 U.S.C. § 309.

[^36]: In addition, Hexagram's reliance on *Gardner v. FCC*, 530 F.2d
    1086 (D.C. Cir. 1976) is inapposite. In that case, the Court of
    Appeals found that the petitioner was denied actual notice because
    the Commission did not adhere to its own rule to mail adjudicatory
    orders to the parties. *Id*. at 1089-90. The Court found that the
    rule had created a reasonable expectation in the parties to the
    proceeding that the Commission would give notice through the mail.
    *Id*. at 1090. In this case, the Commission has fully adhered to its
    rules and procedures, meeting the public's expectations with regard
    to notice of applications accepted for filing.

[^37]: Hexagram Application for Review at 16-17.