**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Applications of )

)

KATHLEEN M. SLOAN ) File No. D031286

220 MHz Station WPCM897 )

Birmingham, Alabama )

)

KATHLEEN B. EDWARDS ) File No. D031287

220 MHz Station WPCQ625 )

Birmingham, Alabama )

)

MARIA DANCS ) File No. D037957

220 MHz Station WPBN294 )

Atlanta, Georgia )

**ORDER**

**Adopted: January 24, 2000 Released: January 24, 2000**

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

**I. INTRODUCTION**

1\. Before us are three petitions for reconsideration filed by Kathleen
M. Sloan (Sloan), Kathleen B. Edwards (Edwards) and Maria Dancs (Dancs)
seeking reconsideration of the denial by the Land Mobile Branch (Branch)
of their individual requests for a waiver of section 90.753(a) of the
Commission\'s rules and the dismissal of their respective applications
for modification of their non-nationwide Phase I 220 MHz systems.[^1]
For the reasons discussed below, we deny all three petitions for
reconsideration and affirm the dismissal of their applications for
modification.

**II. BACKGROUND**

2\. Pursuant to the *220 MHz Second Report and Order*, non-nationwide
Phase I 220 MHz licensees were allowed to relocate their base stations
within certain parameters.[^2] Licensees with base stations authorized
inside any Designated Filing Area (DFA)[^3] were permitted to relocate
their base stations up to one-half the distance over 120 kilometers
toward any authorized co-channel base station, to a maximum of eight
kilometers.[^4] Licensees with base stations authorized outside the
boundaries of any DFA were permitted to relocate their base stations up
to one-half the distance over 120 kilometers toward any authorized
co-channel base station, to a maximum of 25 kilometers, so long as they
did not locate their base station more than 8 kilometers inside the
boundaries of any DFA.[^5] In addition, licensees that had been granted
Special Temporary Authority (STA) on or before the adoption date of the
*220 MHz Second Report and Order* were permitted to seek permanent
authorization at the STA site if the licensee certified that it had
either (1) constructed its base station and placed the base station in
operation, or commenced service at that site; or (2) taken delivery of
its base station transceiver on or before such adoption date.[^6]

3\. The Commission also recognized in the *220 MHz Second Report and
Order* that in certain areas of the country it was possible that the
technical characteristics of base station sites available to a licensee
under the relocation procedures may have been considerably inferior to
the technical characteristics of currently licensed sites and sites that
may exist at nearby, more elevated locations.[^7] Therefore, the
Commission stated it would entertain waiver requests by licensees
authorized in the Los Angeles and Seattle areas, as well as any other
urban areas with comparable terrain features, to relocate their stations
to higher elevations that may be situated more than eight kilometers (or
25 kilometers, for licensees authorized outside DFAs) from their
authorized locations.[^8] The Commission then specified that a licensee
seeking such a waiver must provide (1) a showing that the terrain in
question does, in fact, present unique technical and operational
problems, and (2) a technical analysis demonstrating that in relocating
its base station to its desired location, the licensee will provide
service to substantially the same geographic area that it was authorized
to serve initially.[^9]

4\. Sloan and Edwards each have a license to operate 220 MHz systems in
Birmingham, Alabama, under call signs WPCM897 and WPCQ625, respectively.
Dancs has a license to operate a 220 MHz system in Atlanta, Georgia,
under call sign WPBN294. On April 16, 1996, both Sloan and Edwards filed
applications for modification of their licenses to relocate their
respective 220 MHz systems to another site approximately 21 kilometers
from their originally licensed site.[^10] Likewise, on May 1, 1996,
Dancs filed an application for modification of her license to relocate
her 220 MHz system approximately 58 kilometers from her originally
licensed site. Because all three authorized base stations were located
within a DFA and the proposed relocations were greater than the eight
kilometers allowed by section 90.753(a) of the Commission\'s rules, each
of the petitioners requested a waiver based on the \"unique technical
and operation problems\" of the terrain surrounding their system.

5\. On December 18, 1996, the Branch denied Dancs's waiver request, and
the following day, dismissed her modification application on the grounds
that the waiver request was denied. In the dismissal of the waiver
request, the Branch stated that the contour analysis that Dancs
submitted did not demonstrate that the area covered by the 38 dBµ
contour of her proposed site was substantially the same as the area
covered by the 38 dBµ contour of her originally licensed site.[^11] The
Branch found that Dancs\'s proposed station would only serve one quarter
of the station\'s originally authorized service area.[^12] Because Dancs
did not demonstrate unique problems that would be resolved by a
relocation 58 kilometers away, and that closer alternate locations were
unavailable, the Branch denied her request for waiver of section
90.753.[^13]

6\. On January 28, 1997, the Branch denied both Sloan\'s and Edwards\'s
waiver requests and dismissed their modification applications.[^14] In
so doing, the Branch stated that neither Sloan nor Edwards had
sufficiently demonstrated that the terrain in Birmingham, Alabama
presented unique technical and operational problems similar to those of
Southern California.[^15] Specifically, the Branch stated that
Birmingham is not surrounded by large mountain ranges which will confine
a system's signal to the city.[^16] Moreover, the Branch observed that
neither licensee was being forced to relocate, but rather they simply
wanted to extend their coverage area.[^17]

**III. DISCUSSION**

**A. Dancs Request for Waiver**

7\. In her petition for reconsideration, Dancs asserts that the Branch
erred in denying her waiver request because she met both the general
waiver requirements and those specifically set out in paragraph 11 of
the *220 MHz Second Report and Order*.[^18] Dancs claims that she
adequately demonstrated that unique technical and operational problems
exist in the form of signal blocking and shadowing due to high-rise
buildings built after she constructed her station.[^19] She also claims
to have demonstrated that there was no reasonable alternative site
available within 8 kilometers of her licensed site that would improve
her transmission.[^20] To support her claims, Dancs points to two other
licensees that were granted modification to relocate their base stations
from the same originally licensed site as Dancs and that had made the
same demonstration for waiver.[^21] However, in both of these cases, the
licensees' proposed base stations were considerably closer to their
originally licensed site than Dancs was requesting, and proposed to
provide service to substantially the same geographic area they were
authorized to serve pursuant to their original authorizations.[^22]
Dancs proposed a relocation of 58 kilometers, a distance well beyond the
expected 35 kilometer intended service radius of a 220 MHz system.
Therefore, we find that the Branch was correct in determining that
Dancs\'s proposed relocation would not provide service to substantially
the same geographic area it was authorized to serve.

8\. Dancs also argues that the language in the second provision of
paragraph 11 of the *220 MHz Second Report and Order* is ambiguous
because the Commission did not provide an exact definition of what
constitutes \"service to substantially the same geographic area it was
authorized to serve.\"[^23] Dancs argues that this language could be
interpreted to mean \"service to substantially the same population
centers as the licensed site, but not necessarily the same geographic
area.\"[^24] We disagree. While population may be taken into account,
the language in paragraph 11 of the *220 MHz Second Report and Order*
specifically speaks in terms of geographic area, not population
centers.[^25] In Dancs's case, the proposed move was 58 kilometers with
only one quarter overlap of service contours. We affirm the Branch\'s
conclusion that the proposed site would not be serving substantially the
same geographic area.

9\. Finally, Dancs argues that because of the possible ambiguity in
paragraph 11 of the *220 MHz Second Report and Order*, she should be
allowed to amend her modification application to bring it into
compliance with the Commission\'s interpretation.[^26] Dancs points to
the fact that the Commission allowed a number of applicants to amend
their applications to provide certification statements in accordance
with section 90.755 of the Commission\'s rules, thereby making their
applications acceptable for filing.[^27] Sections 1.918(b) and 90.161(a)
of the Commission\'s rules allow an applicant to amend its application
as a matter of right *prior* to the grant of that application.[^28]
Amendments to a modification application *after* the grant of the
modification would change the limited nature of the relocation
procedures established in the *220 MHz Second Report and Order*,
essentially allowing modifications at any time, even after the limited
window for relocation ended. Therefore, we will not grant Dancs\'s
request to amend her application after it has been dismissed.

**B. Sloan and Edwards Requests for Waiver**

10\. In their petitions for reconsideration, Sloan and Edwards counter
the Branch\'s assertion that the terrain around Birmingham, Alabama does
not pose unique technical and operational problems by submitting an
engineering statement.[^29] The engineering statement asserts that \". .
. the terrain in the Birmingham, \[Alabama\] area . . . is very rugged
with high elevation ridges to the immediate east, southeast and
northeast of the City.\"[^30] It also asserts that the proposed service
contour overlaps the authorized contour by 61%, primarily in the
Birmingham metropolitan area.[^31] This statement is the only evidence
Sloan and Edwards offer to prove that the terrain is rugged and
mountainous. We believe that this information by itself is inadequate to
warrant a waiver. Sloan and Edwards fail to present any substantial
evidence that would support a finding that the circumstances of the
Birmingham site would merit the kind of special limited consideration
illustrated by the named examples of Seattle and Los Angeles.[^32]
Therefore, we find the Branch properly denied Sloan\'s and Edwards\'s
requests for a waiver for failure to provide a showing that the terrain
in question does, in fact, present unique technical and operational
problems.[^33]

**IV. CONCLUSION**

11\. Dancs fails to demonstrate that the proposed relocation site would
serve substantially the same geographic area as her originally
authorized site, while Sloan and Edwards do not adequately demonstrate
that the Birmingham, Alabama area poses unique technical and operational
problems that would warrant a waiver of the relocations procedures
created in the *220 MHz Second Report and Order*. Therefore, we deny the
three petitions for reconsideration and affirm the Branch\'s dismissal
of their corresponding applications for modification.

**V. ORDERING CLAUSES**

12\. Accordingly, pursuant to our authority under sections 4(i) and 405
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
and sections 0.331, 1.106 and 90.753 of the Commission\'s rules, 47
C.F.R. §§ 0.331, 1.106, 90.753, IT IS ORDERED that the petition for
reconsideration filed by Kathleen M. Sloan on February 26, 1997 IS
DENIED.

13\. IT IS FURTHER ORDERED, pursuant to our authority under sections
4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 405, and sections 0.331, 1.106 and 90.753 of the Commission\'s
rules, 47 C.F.R. §§ 0.331, 1.106, 90.753, that the petition for
reconsideration filed by Kathleen B. Edwards on February 26, 1997 IS
DENIED.

14\. IT IS FURTHER ORDERED, pursuant to our authority under sections
4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 405, and sections 0.331, 1.106 and 90.753 of the Commission\'s
rules, 47 C.F.R. §§ 0.331, 1.106, 90.753, that the petition for
reconsideration filed by Maria Dancs on January 17, 1997, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^ Sloan and Edwards filed identical petitions, with the
    exception of their particular license information. *See* Petition
    for Reconsideration filed by Kathleen M. Sloan on February 26, 1997
    (Sloan Petition) and Petition for Reconsideration filed by Kathleen
    B. Edwards on February 26, 1997 (Edwards Petition). Dancs filed a
    completely separate petition, but because it involves the same basis
    for the request for waiver as Sloan and Edwards, we have
    consolidated the order for administrative convenience. *See*
    Petition for Reconsideration filed by Maria Dancs on January 17,
    1997 (Dancs Petition).

[^2]: ^?^ Amendment of Part 90 of the Commission\'s Rules to Provide for
    the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, *Second Report and Order*, 11 FCC
    Rcd. 3668 (1996) (*220 MHz Second Report and Order*).

[^3]: ^?^ The Commission established 50 Designated Filing Areas in its
    initial licensing of the 900 MHz Specialized Mobile Radio band.
    *See* Private Land Mobile Application Procedures for Spectrum in the
    896-901 MHz and 935-940 MHz Bands, *Public Notice*, DA 86-173, 1 FCC
    Rcd. 543 (1986).

[^4]: ^?^ *220 MHz Second Report and Order*, 11 FCC Rcd. at 3670, ¶ 9.
    *See also* 47 C.F.R. § 90.753(a).

[^5]: ^?^ *Id.* *See also* 47 C.F.R. § 90.753(b).

[^6]: ^?^ *Id.* at 3673, ¶¶ 15-16. *See also* 47 C.F.R. § 90.753(c).

[^7]: ^?^ *Id.* at 3671, ¶ 11.

[^8]: ^?^ *Id*.

[^9]: ^?^ *Id*.

[^10]: ^?^ Both Sloan and Edwards were originally licensed at the same
    location and both proposed to relocate to the same site. *See*
    Application for Modification of Station WPCM897, filed by Kathleen
    M. Sloan, on April 16, 1996 (Sloan Application), and Application for
    Modification of Station WPCQ625, filed by Kathleen B. Edwards, on
    April 16, 1996 (Edwards Application).

[^11]: ^?^ Dancs Dismissal at 1. The Branch added that this is readily
    apparent when the predicted radius for 220 MHz stations is 35
    kilometers and Dancs proposed relocation of 58 kilometers. *Id*. at
    1-2.

[^12]: ^?^ *Id*.

[^13]: ^?^ *Id*. at 2.

[^14]: ^?^ *See* Letter of Terry L. Fishel, Chief, Land Mobile Branch,
    to Henry A. Solomon, attorney for Kathleen M. Sloan, dated January
    28, 1997 (Sloan Dismissal) and Letter of Michael J. Regiec, Deputy
    Chief, Land Mobile Branch, to Henry A. Solomon, attorney for
    Kathleen B. Edwards, dated January 28, 1997 (Edwards Dismissal).

[^15]: ^?^ Sloan Dismissal at 1; Edwards Dismissal at 1.

[^16]: ^?^ *Id.*

[^17]: ^?^ *Id.* at 2.

[^18]: ^?^ Dancs Petition at 3-6.

[^19]: ^?^ *Id*. at 3.

[^20]: ^?^ *Id*. at 4.

[^21]: ^?^ *Id*.

[^22]: ^?^ *See* Application for Modification of Anthony Andrikopoulous,
    Station WPCX366, File No. D037954 (proposed relocation distance was
    35 kilometers) and Application for Modification of Rega Associates,
    Station WPBM590, File No. D037956 (proposed relocation distance was
    23 kilometers).

[^23]: ^?^ Dancs Petition at 5-6.

[^24]: ^?^ *Id*. at 5.

[^25]: ^?^ *220 MHz Second Report and Order*, 11 FCC Rcd. at 3671, ¶ 11.

[^26]: ^?^ Dancs Petition at 7. Dancs submitted an amendment to her
    modification application with an alternative engineering proposal
    specifying a different site for relocation of Dancs\'s base station,
    which is only 35 kilometers from Dancs\'s licensed site and is the
    same site approved for one of the other licensees whose original
    site was at the same location as Dancs\'s licensed site (*i.e.*,
    Application File No. D037954). *Id*. at 8.

[^27]: ^?^ Dancs Petition at 7.

[^28]: ^?^ 47 C.F.R. §§ 1.918(b) and 90.161(a).

[^29]: ^?^ *See* Engineering Statement by Raymond C. Trott, P.E., of
    Trott Communications Group, Inc., dated February 8, 1997, as Exhibit
    B to both Sloan Petition and Edwards Petition. Again, both Sloan and
    Edwards submitted identical engineering statements with simply a
    change in the licensee name, call sign and file number.

[^30]: ^?^ *Id*.

[^31]: ^?^ *Id*.

[^32]: ^?^ We also note that under the *220 MHz* *Memorandum Opinion and
    Order on Reconsideration*, Petitioners have the opportunity to
    \"fill in\" the service contour created at their originally licensed
    site. *See* Amendment of Part 90 of the Commission\'s Rules to
    Provide for the Use of the 220-222 MHz Band by the Private Land
    Mobile Radio Service, Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services,
    *Memorandum Opinion and Order on Reconsideration*, 13 FCC Rcd.
    14,569, 14,616, ¶ 97 (1998). *See also* 47 C.F.R. §745. Moreover,
    because we find the evidence of unique technical and operational
    problems insufficient in this case, we need not address whether a 61
    percent overlap constitutes \"substantially the same geographic
    area.\"

[^33]: ^?^ Because the first requirement has not been met, we need not
    address if Sloan's and Edwards\'s proposed sites provide
    substantially the same geographic area for which they were
    originally authorized.