**DA 00-319**

**Before the**

# Federal Communications Commission

**Washington, D.C. 20554**

In re )

)

Arch Communications Group Inc. ) File Nos.: D013946, D013947, D013948,

) D013949, D013950, D013951

Authority for Exclusive Use of )

929.8375 MHz Frequency Nationwide )

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 17, 2000 Released: February 18, 2000**

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

# I. Introduction

1.  On December 1, 1995, Mr. Harry Soukiassian (Soukiassian), a Private
    Carrier Paging (PCP) licensee in Southern California, filed a
    petition (Petition) to remove Arch Communications Group Inc.'s
    (Arch) nationwide PCP exclusivity for the 929.8375 MHz frequency.
    For the reasons discussed below, we deny the Petition. We also deny
    six applications filed by Soukiassian on December 7, 1995, which
    were premised upon our granting Soukiassian's Petition to withdraw
    Arch's nationwide PCP exclusivity on frequency 929.8375 MHz.

# II. Background

2.  Pursuant to former section 90.495 of the Commission's rules, a PCP
    licensee who applied for and received the right to exclusivity for a
    particular frequency could operate on an exclusive basis. [^1] That
    is, an exclusive PCP licensee would not be required to share
    channels with another PCP licensee, in accordance with the
    geographic scope of the applied for-exclusivity. Exclusivity could
    be applied for on a local, regional, or nationwide basis. To meet
    the requirements for nationwide exclusivity, a nationwide system had
    to "consist of 300 or more transmitters \[and\] . . . provide
    service to at least 50 markets . . . , including 25 of the top 50
    markets and two markets in each \[designated\] region\[.\]"[^2] In
    addition, incumbent PCP licensees were able to obtain so-called
    "grandfathered exclusivity" for stations or systems that had been
    authorized on or before October 14, 1993. Applications pending on or
    before October 14, 1993, also qualified for grandfathered
    exclusivity status. As a result, applications for exclusivity based
    on authorizations obtained after the October 14, 1993 cutoff date,
    were accepted "only if the resulting system qualifie\[d\] for
    exclusivity under \[Commission\] rules and \[did\] not violate\[\]
    minimum separation standards with respect to other systems that
    \[had\] previously qualified for exclusivity on the same
    frequency."[^3] Applications for nationwide exclusivity were
    required to be filed on or before January 28, 1994.[^4]

3.  On January 27, 1994, Arch applied for nationwide PCP exclusivity on
    frequency 929.8375 MHz and, on the same day, Arch also applied for
    regional PCP exclusivity on frequency 929.3625 MHz in two regions,
    one of which included an area in northern and southern
    California.[^5] Arch's applications for exclusivity were based on
    its existing nationwide and regional systems, and included some
    stations authorized by the Commission but not yet constructed.
    Arch's application for nationwide exclusivity was predicated upon
    502 transmitters nationwide, 202 transmitters more than the 300
    minimum required; service to 72 of the top 100 markets, 22 more than
    the 50 required; and service to 40 of the top 50 markets, 15 more
    than the 25 required.[^6]

4.  Also, on January 27, 1994, Arch filed a request for a wavier seeking
    a longer transition period within which to "convert its nationwide
    and regional . . . systems from the use of multi-frequency
    transmitters to the use of dedicated transmitters while retaining
    exclusivity . . . ."[^7] The then-existing Commission rules required
    that multi-frequency transmitters (*i.e.*, transmitters capable of
    transmitting on more than one frequency), could be counted toward
    the minimum requirements for exclusivity on only a single
    frequency.[^8] Arch requested more time to meet this so-called
    single-count transmitter requirement because it had systems that
    consisted of multi-frequency antennas and because it was having
    difficulty obtaining timely delivery of new transmitters.[^9]

5.  On May 27, 1994, the Private Radio Bureau issued a Public Notice
    listing PCP operators that qualified for grandfathered exclusivity.
    Arch's nationwide 929.8375 MHz system was not included on the list.
    It was noted in the Public Notice, however, that the list did not
    "apply to 929-930 MHz paging systems that are the subject of pending
    requests for grandfathered exclusivity based on petitions for waiver
    of our exclusivity rules."[^10] And, therefore, the list of
    operators qualifying for exclusivity was "subject to possible
    modification based on any action that the Commission might take in
    response to such petitions."[^11]

6.  On December 1, 1995, Soukiassian filed the instant Petition to
    remove Arch's nationwide PCP exclusivity on frequency 929.8375 MHz.
    Subsequently, on December 7, 1995, Soukiassian filed six
    applications for authority to operate new PCP stations on frequency
    929.8375 MHz at various California locations including: Running
    Springs, San Francisco, Corona, Huntington Beach, Los Angeles, and
    Anaheim. For each application, Soukiassian requested a waiver of the
    Commission rules requiring frequency coordination, asserting that
    frequency coordination was impossible because Arch "allegedly has
    nationwide exclusive use of the frequency 929.8375 MHz"[^12] and
    further asserting that Arch "does not qualify to continue to enjoy
    exclusive status on the requested frequency."[^13] Each application
    filed was predicated upon the Commission granting Soukiassian's
    Petition to remove exclusivity.

7.  On May 10, 1996, the Wireless Bureau issued a Public Notice listing
    Arch as one of the PCP "licensees who \[Commission\] records
    indicate have met the construction requirements for nationwide
    exclusivity as defined in Section 90.495(a)(3)" of the Commission
    rules on frequency 929.8375 MHz.[^14]

# III. Discussion

8.  Soukiassian asserts that Arch's exclusivity for frequency 929.8375
    MHz should be removed because Arch violated former Section 90.495(d)
    by applying for exclusivity on a second frequency before having
    completed construction of its first system. Former section 90.495(d)
    provided:

Applications for channel exclusivity may request no more than one
frequency in each location to be served. No applicant or affiliate of an
applicant may apply for an additional frequency in an area that is the
subject of the applicant's prior application unless the system proposed
in the prior application has been constructed, is operating, and meets
the criteria set forth in paragraph (a) of this section.

47 C.F.R. § 90.495(d). Soukiassian asserts that this rule prohibited
Arch from applying concurrently for nationwide PCP exclusivity on
929.8375 MHz while applying for regional exclusivity in California on
929.3625 MHz because Arch's 929.3625 MHz system was not yet fully
constructed before it applied for nationwide exclusivity.

9.  This rule, however, applied to new systems (*i.e.*, systems not
    fully authorized until after October 14, 1993) and not to incumbent,
    or grandfathered, systems. To that end, the PCP Exclusivity Order
    notes that "multi-frequency requirements are the same for
    grandfathered systems, except that [we will not withhold exclusivity
    on the second frequency pending construction of the
    system]{.underline}."[^15] Thus, incumbent, or grandfathered,
    licensees were permitted to apply simultaneously for more than one
    frequency, even before the construction of such systems was
    completed to the full extent authorized. As noted above, because
    Arch obtained or had applied for the requisite authorizations prior
    to the October 14, 1993 cutoff date, Arch's nationwide PCP system
    qualified for grandfathered exclusivity. As a result, Arch's
    929.8375 MHz nationwide system did not need to be fully constructed
    and operating [before]{.underline} it applied for regional
    exclusivity on another frequency.

10. Soukiassian also asserts that, even if Arch properly obtained
    nationwide exclusivity for 929.8375 MHz, Arch's exclusivity expired
    because Arch did not timely construct its system, and because Arch
    ultimately did not construct and operate its PCP system in
    California and Nevada using the particular stations upon which
    Arch's application for nationwide exclusivity was predicated. In
    particular, Soukiassian argues that Arch violated former Section
    90.495(c) of the Commission's rules.[^16] This rule provided, in
    part, that a proposed paging system's exclusivity "will expire
    unless the proposed system (or a sufficient portion of the system to
    qualify for exclusivity) is constructed and operating within eight
    months of the licensing date."[^17]

11. Section 90.495(c) appears on its face to have required Arch to
    construct its system within eight months of the October 14, 1993
    cutoff date. Even assuming that Section 90.495(c) is applicable, the
    Commission partially granted Arch's request for a temporary waiver
    of the single-count transmitter requirement and allowed Arch until
    September 5, 1996 to complete its nationwide 929.8375 MHz system.
    [^18] Soukiassian makes no argument that Arch failed to complete its
    nationwide 929.8375 MHz system within that timeframe and our records
    in this proceeding do not indicate otherwise.

12. Soukiassian also asserts that Arch's exclusivity expired because
    Arch did not use ten of the stations in California and Nevada
    specified in its application for nationwide exclusivity.[^19]
    Soukiassian argues that the Commission should not have authorized
    Arch to operate substitute stations in these locations.[^20]
    Moreover, Soukiassian asserts that Arch was not candid with the
    Commission regarding its system modifications and, as a result, the
    Commission unknowingly granted the applications for the substitute
    stations in error.[^21] We disagree with Soukiassian's
    characterizations of this issue for the following reasons.

13. First, as noted above, Arch's application for nationwide exclusivity
    was based on a proposed system that consistently exceeded the
    minimum requirements for system exclusivity.[^22] For example, in
    Region 7, which includes California and Nevada, former Section
    90.495(3) of the Commission's rules required Arch to serve two
    markets,[^23] and Arch's grandfathered system (based on
    authorizations granted and applications pending) served nine
    markets.[^24] Thus, even if some of the stations in Arch's
    nationwide system were deleted entirely, its system would still meet
    the exclusivity requirements.

14. Second, the Commission anticipated that Arch's system would undergo
    certain system modifications due to Arch's temporary waiver request
    of the single-count transmitter requirements. Specifically, as noted
    above, because Arch's grandfathered system used multi-frequency
    transmitters, Arch needed more time to convert its system to comply
    with the single-count transmitter rule. The Commission was fully
    aware of the status of Arch's PCP systems as the result of Arch's
    waiver request. Indeed, Arch was not the only company to file such a
    request. At least five other companies sought the same relief. In
    granting the six companies who had sought waivers of the
    single-count requirement additional time to ensure that their
    systems complied with the regulations, the Commission noted that
    "\[t\]he adoption of the single-count rule [required these licensees
    to modify their plans to add additional transmitters]{.underline} in
    order to gain full exclusivity protection for their existing
    systems."[^25] Thus, the Commission was aware that some systems that
    qualified for grandfathered exclusivity, including Arch's system,
    needed to be modified to meet the exclusivity requirements.

15. Moreover, in providing PCP operators with the opportunity for
    exclusivity, the Commission's goal was to give licensees "greater
    incentive to invest in technology and to develop higher-capacity
    paging systems."[^26] Arch's extensive, capital intensive nationwide
    929.8375 MHz system is precisely the byproduct the Commission sought
    when it provided for exclusivity and, any minor system modifications
    Arch made were inconsequential.

16. Soukiassian also asserts that Arch was not granted additional time
    for construction using the so-called "slow growth" option of the PCP
    Exclusivity rules and, as a result, Arch forfeited its nationwide
    exclusivity.[^27] The "slow growth" option extended the permissible
    period of construction from eight months to three years for certain
    qualifying systems. While we agree with Soukiassian's contention
    that grandfathered licensees were not entitled to slow-growth
    status,[^28] as noted above, Arch constructed its nationwide PCP
    929.8375 MHz system within the required timeframe specified by the
    Commission's Order dated February 13, 1996.

17. As demonstrated by the foregoing analysis, the Commission was always
    fully aware of the status and make up of Arch's nationwide 929.8375
    MHz system. Arch's filings, such as its waiver request, were both
    timely and forthcoming. As a result, we reject Soukiassian's
    argument that Arch made "willful material omissions"[^29] to the
    Commission relating to its applications for exclusivity.

# IV.  Ordering Clauses

18. Accordingly, IT IS ORDERED that, pursuant to authority delegated by
    Section 4(i) of the Communications Act, as amended, 47 U.S.C. §
    154(i), and section 0.331 of the Commission\'s Rules, 47 C.F.R. §
    0.331, the petition for removal of exclusivity filed by Harry
    Soukiassian on December 1, 1995, is DENIED.

19. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 309 of the
    Communications Act, as amended, 47 U.S.C. § § 154(i) and 309, and
    section 0.331 of the Commission's Rules, 47 C.F.R. § 0.331, the
    above-referenced applications filed by Harry Soukiassian on December
    7, 1995, are DENIED.

 

FEDERAL COMMUNICATIONS COMMISSION

Paul D'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: *Amendment of the Commission's Rules to Provide Channel
    Exclusivity to Qualified Private Paging Systems at 929-930 MHz*,
    Report and Order, 8 FCC Rcd 8318 (1993) (*PCP Exclusivity Order*).

[^2]: 47 C.F.R. § 90.495.

[^3]: *PCP Exclusivity* Order, 8 FCC Rcd at 8330, ¶ 32.

[^4]: *See FCC Announces Procedures for Implementation of Exclusivity on
    929-930 MHz Paging Frequencies*, Public Notice, 9 FCC Rcd 375 (1993)
    (noting that requests for exclusivity should be submitted "as soon
    as possible, but no later than January 28, 1994).

[^5]: Letter from Carl W. Northrop, counsel for Arch, to NABER (Jan. 27,
    1994) (enclosing Arch's request for nationwide exclusivity on
    929.8375 MHz).

[^6]: *See id.* at Attachment A; 47 C.F.R. § 90.495(a)(3).

[^7]: *Request of Arch Communications Group for a Temporary Waiver of
    Section 90.495(a)(5) of the Commission's Rules Pending a Conversion
    from Multi-Frequency to Dedicated Transmitters* (Jan. 27, 1994).

[^8]: 47 C.F.R. § 90.495(a)(5) provided that "\[f\]requency-agile
    transmitters may be counted no more than once for purposes of this
    section."

[^9]: *Id.* at 5, 7-8.

[^10]: *Private Radio Bureau Announces 929-930 MHz Paging Operators
    Qualifying for Local, Regional, and Nationwide Exclusivity*, Public
    Notice, DA 94-546 (1994).

[^11]: *Id*.

[^12]: *See, e.g.,* Application for New Private Carrier Paging Stations
    at Corona, California (929.8375 MHz), filed by Kathleen A. Kaercher,
    Brown & Schwaninger, counsel for Soukiassian (December 7, 1995).

[^13]: *Id.*

[^14]: *Wireless Telecommunications Bureau Announces 929-930 MHz Paging
    Licensees That Have Met Construction Requirements for Nationwide
    Exclusivity*, Public Notice, 11 FCC Rcd. 12124 (1996).

[^15]: *PCP Exclusivity Order*, 8 FCC Rcd 8328, at n.56 (emphasis
    added).

[^16]: Petition at 6.

[^17]: 47 C.F.R. § 90.495(c).

[^18]: ^?^ *Amendment of the Commission's Rules to Provide Channel
    Exclusivity to Qualified Private Paging Systems at 929-930 MHz*,
    Memorandum Opinion and Order, 11 FCC Rcd 3091 (1996). On January 26,
    1996, just days before the Commission's February 13, 1996 Order
    granting Arch additional time to construct its 929.8375 MHz system,
    Arch filed a certification of completion of construction for its
    nationwide 929.8375 MHz system. At the same time, Arch sought to
    withdraw its temporary waiver request with respect to its 929.8375
    MHz system.

[^19]: Petition at 5-6.

[^20]: *Id.* at 7-8.

[^21]: *Id*. at 8.

[^22]: *See infra.* at ¶ 3.

[^23]: 47 C.F.R. § 90.495(3).

[^24]: Arch's Application for Exclusivity, Attachment D (January 24,
    1994) (listing Los Angeles, San Francisco, San Diego, San Jose,
    Sacramento, Oxnard-Simi Valley, Fresno, Las Vegas, and Bakersfield
    as the markets in Region 7 serviced by Arch).

[^25]: *Amendment of the Commission's Rules to Provide Channel
    Exclusivity to Qualified Private Paging Systems at 929-930 MHz*,
    Memorandum Opinion and Order, 11 FCC Rcd 3091 (1996) (emphasis
    added).

[^26]: *Amendment of the Commission's Rules to Provide Channel
    Exclusivity to Qualified Private Paging Systems at 929-930 MHz*,
    Notice of Proposed Rulemaking, 8 FCC Rcd 2227 (1993).

[^27]: Petition at 9.

[^28]: *See Amendment of the Commission's Rules to Provide Channel
    Exclusivity to Qualified Private Paging Systems at 929-930 MHz*,
    Memorandum Opinion and Order, 11 FCC Rcd 3091 (1996) ("We stand by
    our decision to establish October 14, 1993, the date of our Sunshine
    Notice on the Report and Order \[PCP Exclusivity Order\], as the
    cutoff date for slow growth eligibility, and to deny slow growth
    extensions to grandfathered licensees generally. . . . We believe
    that the date for dividing 'old' from 'new' applicants also is the
    appropriate date for triggering slow growth eligibility.")

[^29]: 47 C.F.R. § 1.17.