**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FCC File No. 0001183563      |
|                                  | *) |                              |
| Request for Waiver by Midport    | ** |                              |
| Electronics, Inc. to Allow       |    |                              |
| Operation on Frequencies in the  | *  |                              |
| 421-430 MHz Band in the Detroit, | *) |                              |
| Michigan Area                    | ** |                              |
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|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: February 22, 2007 Released: February 23, 2007**

By the Deputy Chief, Mobility Division, Wireless Telecommunications
Bureau:

# INTRODUCTION

1.  In this *Order*, we address the above-captioned application and
    accompanying request for waiver of the Commission's Rules filed by
    Midport Electronics, Inc. (Midport) seeking authorization to operate
    on certain frequencies in the 421-430 MHz band, beyond 50 miles of
    the geographic center of Detroit, Michigan. For the reasons stated
    herein, we grant the waiver request.

# background

2.  On August 15, 2002[^1] and February 3, 2003,[^2] Midport filed
    applications for authorization to commence land mobile operations on
    various 421-430 MHz frequencies[^3] at a distance of 52.8 miles from
    the geographic center of Detroit, Michigan. Midport also requested a
    waiver of Section 90.273 of the Commission's Rules[^4] to permit its
    proposed operations.[^5] Section 90.273(c)-(d) of the Commission's
    Rules requires that base and control stations and mobiles operating
    in the 421-430 MHz frequency band in the vicinity of Detroit be
    located within 80 kilometers (50 miles) of the center of the
    city.[^6] Stations operating within these distance restrictions are
    authorized to transmit at a maximum of 250 watts effective radiated
    power (ERP).[^7]

3.  With its proposed site approximately 53 miles from the center of
    Detroit, Midport proposes to operate at a reduced power of no more
    than 80 watts output power (TPO).[^8] Midport contends that the
    proposed service area would be equivalent to, or less than, the
    geographic area served if its proposed station were to operate at 90
    watts TPO within the 50-mile geographic restriction area.[^9]
    Consequently, Midport requests the waiver of Section 90.273(c) of
    the Commission's Rules.[^10]

4.  Midport argues that grant of the requested waiver would not
    undermine the fundamental purpose of Section 90.273(c).[^11] Midport
    states that the rule was adopted "to provide for the most intensive
    use possible of this spectrum by land mobile entities throughout the
    Buffalo, Detroit, and Cleveland areas."[^12] Midport adds that grant
    of the requested waiver would result in more extensive land mobile
    usage of this spectrum, and notes that it intends to make its
    service available, at no cost, to various charitable agencies and
    organizations in Ohio, such as the American Red Cross, food banks,
    and kitchens for the homeless.[^13] Midport also submits that a
    secondary purpose of Section 90.273 is to avoid unduly impeding
    operations in the Amateur Radio Service.[^14] Midport argues, in
    this regard, that the *de minimis* extension of its proposed station
    location beyond the 50-mile perimeter, coupled with its proposed
    reduced output power and its distance from authorized amateur radio
    stations in the Detroit area, would not have an adverse impact on
    any amateur radio station.[^15]

5.  On June 8, 2004, Futronics, Inc. (Futronics) filed a petition to
    deny the Application and Request (Petition).[^16] Observing that the
    instant Request by Midport is "virtually identical" to Midport's
    First Request, with the frequencies requested being the only
    difference between the two, Futronics incorporates by reference in
    the Petition its comments (Futronics Comments) filed on February 14,
    2003, against the First Request.[^17] In those comments, Futronics
    argued that Midport had not adequately demonstrated why it is not
    possible, or why it would be unduly burdensome, for Midport to
    operate its system within the permitted 50-mile area in conformance
    with the Commission's Rules.[^18] Futronics also suggested that it
    would be a novel interpretation of the Commission's waiver standard
    if a party could establish good cause for waiver relief on the basis
    that it had filed an application with erroneous site information,
    and had operated at that site illegally for some period of time, but
    now needed a waiver to validate the illegal operation.[^19]
    Futronics further asserted that Midport, in making its case for a
    waiver, relied primarily on its claim that grant of the requested
    relief would not have an adverse impact on amateur radio operations
    in the area.[^20] This claim, Futronics contended, would be relevant
    only if the Commission determined that Midport had presented some
    compelling rationale for a deviation from the Commission's
    Rules.[^21] According to Futronics, however, Midport did not present
    unique or unusual factual circumstances that would render
    application of the rule to Midport inequitable, unduly burdensome or
    contrary to the public interest, or show that Midport had no
    reasonable alternative.[^22]

6.  Futronics also stated in its comments opposing the First Request
    that the *Report and Order* adopting the 50-mile rule does not
    provide for a waiver of the distance requirement, and that
    Futronics's research did not identify any previous instance in which
    the Commission had waived the rule.[^23] Additionally, Futronics
    contended that the public interest would not be served by granting
    waiver relief under the circumstances presented because the spectrum
    beyond the 50-mile geographic center of Detroit is allocated on a
    primary basis to Federal Government radiolocation operations
    pursuant to an agreement between the Commission and the National
    Telecommunications and Information Administration (NTIA).[^24]
    Futronics pointed out that the Commission previously rejected
    proposals to allow for land mobile operations outside the 50-mile
    area because it would conflict with the Government Radiolocation
    allocation.[^25] Finally, Futronics suggested that NTIA and other
    governmental entities were unlikely to permit use of these
    frequencies for purposes other than national defense and homeland
    security.[^26]

# discussion

7.  A request for a rule waiver in the Wireless Telecommunications
    Services may be granted if it is shown that (a) the underlying
    purpose of the rule would not be served or would be frustrated by
    its application to the instant case, and that a grant of the
    requested waiver is in the public interest; or (b) unique or unusual
    factual circumstances of the instant case render application of the
    rule inequitable, unduly burdensome, or otherwise contrary to the
    public interest, or the applicant has no reasonable
    alternative.[^27] Shortly after Futronics filed its Petition against
    the instant Midport Request, the Public Safety and Critical
    Infrastructure Division (PSCID or Division) adopted an *Order*
    granting Midport's First Request (*Midport Waiver Order*) based on a
    determination that Midport had demonstrated that waiver relief was
    warranted under the first prong of the Section 1.925 waiver
    standard.[^28] As Futronics concedes in the Petition,[^29] the
    instant Request is identical to Midport's First Request, except for
    the frequencies in question, and raises precisely the same issues.
    We therefore conclude that the instant Request should be granted for
    the same reasons that the First Request was granted.[^30]

8.  In the *Midport Waiver Order*, the Division found that it was
    unnecessary to require Midport to operate within the specified
    50-mile area under the circumstances presented.[^31] It determined
    that "Midport's proposed land mobile radio operations are intended
    to facilitate more extensive use of the spectrum," in keeping with
    the underlying purpose of the 50-mile rule to foster the greatest
    use possible of the 421-430 MHz band for land mobile radio
    operations in the Buffalo, Detroit, and Cleveland areas, consistent
    with interference concerns.[^32] The Division further concluded that
    Midport's proposed operation with less than the maximum permissible
    antenna height and output power would actually "decrease the risk of
    interference to amateur operations when compared to licensees'
    operations at the edge of the 50-mile area and at the maximum
    permissible antenna height and output power."[^33] With respect to
    potential interference to Federal Government radiolocation
    operations, moreover, we note that NTIA did not oppose the grant of
    Midport's first waiver request to locate a base station outside the
    50-mile zone, provided Midport utilized a four-meter antenna,
    limited its output power to eighty watts, and accepted a condition
    on its license prohibiting modification of the license to raise the
    antenna height or output power.[^34] The Division imposed those
    conditions in the *Midport Waiver Order*,[^35] and we do so here as
    well. We believe that, just as with respect to the earlier waiver
    request, "the purpose underlying the 50-mile rule would not be
    served by applying it to Midport when it is unlikely that either
    amateur or Federal Government licensees would experience
    interference from its proposed operations, as modified by the
    aforementioned conditions."[^36]

9.  We also conclude that grant of the instant Midport Request would
    serve the public interest for the same reasons that grant of
    Midport's First Request was found to serve the public interest.[^37]
    Midport represents that grant of the waiver will allow more
    extensive land mobile usage of the 421-430 MHz frequencies in the
    Detroit area, without any greater risk of interference to amateur
    radio and Federal Government radiolocation operations that share
    that spectrum, and states in particular that the waiver will permit
    it to make its land mobile services available, at no cost, to
    various charitable agencies and organizations in Ohio, including the
    American Red Cross, food banks and kitchens for the homeless.[^38]
    We can discern no basis for treating this Request differently from
    the First Request with respect to analysis of the public interest
    component of the waiver standard. We therefore grant Midport's
    Request, and waive Section 90.273(c) of the Commission's Rules.[^39]

# Conclusion

10. We conclude that Midport has made the requisite showing that a
    waiver of the 50-mile distance restriction in Section 90.273 of the
    Commission's Rules is warranted under the circumstances presented.
    In order to further ensure that this waiver is consistent with the
    public interest, we will impose the following conditions: Midport
    shall (1) utilize a four-meter antenna, (2) limit its output power
    to 80 watts TPO or its equivalent 220 watts ERP, (3) have an express
    condition on its license prohibiting it from filing a license
    modification application proposing to raise the antenna height
    and/or TPO/ERP, and (4) be licensed on a non-interference basis to
    Federal Government users.

# Ordering Clauses

11. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission's Rules, 47 C.F.R.\
    § 1.925, the request for waiver of Section 90.273(c) of the
    Commission's Rules, 47 C.F.R. § 90.273(c), filed on February 3,
    2003, by Midport Electronics, Inc. IS GRANTED TO THE EXTENT STATED
    HEREIN subject to the conditions set forth in paragraph 11 *supra*.

12. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.41 of the Commission's Rules, 47 C.F.R. § 1.41, the
    Petition to Deny filed on June 8, 2004, by Futronics, Inc. IS
    DENIED.

13. This action is taken under delegated authority pursuant to Section
    0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131,
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

    Scot Stone

    Deputy Chief, Mobility Division

    Wireless Telecommunications Bureau

[^1]: *See* FCC File No. 0000998539 and accompanying waiver request
    (filed Aug. 15, 2002, amended on Aug. 20, 2002, and Jan. 31, 2003)
    (First Request).

[^2]: *See* FCC File No. 0001183563 (Application) and accompanying
    waiver request (filed Feb. 3, 2003, amended on Apr. 14, 2003, and
    Jan. 24, 2007) (Request).

[^3]: In FCC File No. 0000998539, Midport sought authorization to
    operate on the following frequencies: 422/427.475 MHz, 424/429.450
    MHz, and 424/429.550 MHz. In FCC File No. 0001183563, Midport seeks
    authorization to operate on the following frequencies:
    422.225/427.225 MHz, 422.275/427.275 MHz, 422.550/427.550 MHz,
    422.800/427.800 MHz, 422.850/427.850 MHz, 424.675/429.675 MHz, and
    424.975/429.975 MHz. We note that several of these frequencies had
    been previously authorized to Midport and GRH & Associates, Inc.
    (GRH), an affiliated entity, under various licenses. However, these
    earlier licenses cancelled automatically due to Midport's (or GRH's)
    failure to construct or failure to construct in substantial
    accordance with its authorizations by, *e.g.*, constructing
    facilities at an unauthorized location. *See* Midport Electronics,
    Inc., *Order*, 17 FCC Rcd 13778 (WTB PSPWD 2002) (*Midport
    Cancellation Order*). In its waiver request, Midport states that it
    inadvertently operated on the 421-430 MHz band frequencies at
    coordinates 41-39-20.9 N. latitude and 83-31-51.0 W. longitude.
    *See* Request at 1. Midport's current license application proposes
    to operate at essentially the same coordinates: 41-39-21.0 N.
    latitude and 83-31-52.0 W. longitude. *See* FCC File No. 0001183563.

[^4]: 47 C.F.R. § 90.273.

[^5]: *See* Request at 1.

[^6]: *See* 47 C.F.R. § 90.273(c)-(d). The geographic center coordinates
    for Detroit are 42-19-48.1 N. latitude and 83-02-56.7 W. longitude.
    *See* 47 C.F.R. § 90.473(c).

[^7]: *See* 47 C.F.R. § 90.279(a)

[^8]: *See* Request at 2.

[^9]: *Id*. Midport proposes to operate mobile units within a 20-mile
    (32-kilometer) radius of coordinates very close to Detroit's
    geographic center (*i.e*., 42-18-48.1 N. latitude and 83-02-56.7 W.
    longitude). *See* FCC File No. 0001183563.

[^10]: *See* Request at 1-2.

[^11]: *See* Request at 2.

[^12]: *Id*., *citing* Amendment of Part 90 of the Commission\'s Rules
    to Provide for Private Land Mobile Operation in the 421-430 MHz Band
    in Detroit, Cleveland, and Buffalo, *Report and Order*, PR Docket
    No. 86-163, 2 FCC Rcd 825, 827 ¶ 27 (1987) (*Report and Order*).

[^13]: *Id*. at 4.

[^14]: *Id*. at 2-3.

[^15]: *Id*. at 3.

[^16]: Futronics, Inc., Petition to Deny (filed June 8, 2004)
    (Petition). As Futronics acknowledges, neither the Communications
    Act of 1934, as amended, nor the Commission's Rules provide opposing
    parties with a right to file petitions to deny private land mobile
    radio applications. *See* Petition at n.2, *citing* 47 U.S.C. §
    309(a)-(b), (d). As Futronics also notes, however, *see id*., it has
    been the Wireless Telecommunications Bureau's practice to treat
    pleadings opposing private land mobile radio applications as
    informal requests for Commission action pursuant to Section 1.41 of
    the Commission's Rules, 47 C.F.R. § 1.41. *See*, *e.g.,* S&L Teen
    Hospital Shuttle, *Memorandum* *Opinion and Order*, 16 FCC Rcd 8153,
    8155 ¶ 5 & n.14 (2001). We also have before us an Opposition to
    Petition to Deny filed by Midport on June 17, 2004 (Opposition) and
    a Reply to Opposition to Petition to Deny filed by Futronics on June
    29, 2004 (Reply).

[^17]: *See* Petition at 2. The Futronics Comments were filed in
    response to a January 15, 2003 Public Notice released by the former
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau, seeking comment on Midport's First
    Request. *See* Wireless Telecommunications Bureau Seeks Comment on
    Request for Waiver by Midport Electronics, Inc. to Allow Operation
    on Frequencies in the 421-430 MHz Band in the Detroit, Michigan
    Area, *Public Notice*, 18 FCC Rcd 219 (WTB PSPWD 2003). The
    Commission reorganized the Wireless Telecommunications Bureau
    effective November 13, 2003, and the relevant duties of the Public
    Safety and Private Wireless Division were assumed by the Public
    Safety and Critical Infrastructure Division. *See* Reorganization of
    the Wireless Telecommunications Bureau, *Order*, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003). Pursuant to a Commission reorganization effective
    September 25, 2006, certain duties of the Public Safety and Critical
    Infrastructure Division were assumed by the Mobility Division. *See*
    Establishment of the Public Safety and Homeland Security Bureau,
    Order, 21 FCC Rcd 10867 (2006).

[^18]: *See* Futronics Comments at 1-2, 6.

[^19]: *Id.* at 7. Futronics suggested that presumably the Commission
    would need evidence that Midport has not operated on these
    frequencies subsequent to license cancellation. *Id*. In the Reply,
    Futronics again posits that Midport may have continued to operate at
    the specified location after its earlier authorizations were
    canceled, and its requests for special temporary authority denied.
    *See* Reply at 3-6. As stated in the *Midport Waiver Order*, "should
    evidence surface that Midport has operated without authorization on
    421-430 MHz frequencies subsequent to the *Midport*
    \[*Cancellation*\] *Order*, we reserve the right to initiate
    enforcement action." *See Midport Waiver Order*, 19 FCC Rcd at 14796
    n.72.

[^20]: *See* Futronics Comments at 7.

[^21]: *Id.*

[^22]: *Id*.

[^23]: *Id.* at 5-6.

[^24]: *Id*. at 2, 8. *See* Implementation of the Arrangement With
    Canada for Use of the 406.1-430 MHz Band in the Border Areas, and
    Use of the 421-430 MHz Band by Land Mobile Users in Detroit,
    Cleveland, and Buffalo, *Report and Order*, 58 Rad. Reg. 2d 1566,
    1567 ¶ 4 (1985).

[^25]: *See* Futronics Comments at 8. Additionally, Futronics noted that
    non-government stations may only be authorized to use Federal
    Government frequencies above 25 MHz if the Commission finds, after
    consultation with the appropriate government agency, that such use
    is necessary for coordination of government and non-government
    activities, and observed that there is no indication that such
    consultation had been initiated here or that it would likely be
    successful. *Id*. at 8-9.

[^26]: *Id*. at 9, *citing* Amendment of Section 2.106 of the
    Commission's Rules to Allocate Spectrum for Wind Profiler Radar
    Systems, *Notice of Proposed Rulemaking and Notice of Inquiry*, 8
    FCC Rcd 2546, 2547 ¶ 6 (1993).

[^27]: *See* 47 C.F.R. § 1.925(b)(3). While Futronics argues that no
    provision for a waiver is provided in the *Report and Order*
    establishing the defined 50-mile area within which the subject
    frequencies may be assigned, we agree with Midport that rulemaking
    proceedings typically do not include specific provisions for a
    waiver of the rules being adopted because Section 1.925 of the
    Commission's Rules already provides a standard for rule waivers.
    *See* Opposition at 3.

[^28]: *See* Request for Waiver by Midport Electronics, Inc. to Allow
    Operation on Frequencies in the 421-430 MHz Band in the Detroit,
    Michigan Area, *Order*, 19 FCC Rcd 14788 (PSCID 2004) (*Midport
    Waiver Order*). The *Midport Waiver Order* was adopted on July 28,
    2004, and released on August 5, 2004.

[^29]: *See* Petition at 2.

[^30]: Given our disposition on the merits, we do not reach Midport's
    argument that the Commission should decline to consider the Petition
    because it was filed sixteen months after the Application was filed
    without providing a justification for the delay. *See* Opposition at
    2.

[^31]: *See Midport Waiver Order*, 19 FCC Rcd at 14794 ¶ 14.

[^32]: *Id*.

[^33]: *Id*. As in the case of the Midport's earlier application and
    First Request, *see id*. at ¶ 15, there is a discrepancy between
    Midport's instant Application on FCC Form 601and the Request.
    Midport indicates in the FCC Form 601 that it proposes to operate
    with 90 watts TPO and 250 watts ERP, whereas in the Request it
    proposes to operate with a reduced TPO of 80 watts. (Midport
    confirms its intent to operate with a TPO of 80 watts in its
    Opposition. *See* Opposition at 4.) Here, as in the *Midport Waiver
    Order*, we will hold Midport to the ERP equivalent of 80 watts TPO,
    as proposed in the Request, and therefore limit Midport's base
    stations to an ERP of 220 watts. *See* *Midport* *Waiver Order*, 19
    FCC Rcd at 14794 ¶ 15. (In doing so, and as was also done in the
    *Midport Waiver Order*, we assume that Midport's antenna gain minus
    any loss factors will convert 90 watts TPO to 250 watts ERP*. Id*.
    at 14794 n.60.)

[^34]: *Id*. at 14794 ¶ 14.

[^35]: *Id*.

[^36]: *Id*. In addition, we note that, in light of the adoption of the
    *Midport Waiver Order*, Futronics' arguments regarding the absence
    of precedent for waiving Section 90.273(c), and the novelty of
    granting a waiver request in these circumstances, have been rendered
    moot. In any event, the Division did not find them persuasive in
    granting the earlier waiver request. *Id*. at 14975-96 ¶¶ 17-18. We
    also note that Midport has been operating Station WQAU486 pursuant
    to the *Midport Waiver Order* since 2004, and we have not received
    any interference complaints.

[^37]: *Id*. at 14796 ¶ 19.

[^38]: *See* Request at 4.

[^39]: In addition, we also grant a waiver of footnote US230 of the
    Table of Frequency Allocations set forth in Section 2.106 of the
    Commission's Rules. *See* 47 C.F.R. § 2.106 n.230. Footnote US2330
    provides that non-government land mobile service be allocated on a
    primary basis in the bands 422.1875-425.4875 MHz and
    427.1875-429.9875 MHz within 50 miles of Detroit. We therefore grant
    Midport a waiver of US230 on our own motion, as in the *Midport
    Waiver Order*. *See Midport Waiver Order*, 19 FCC Rcd at 14796-97 ¶
    20.