Before the

Federal Communications Commission

**Washington, D.C. 20554**

# In the Matter of )

)

DISPATCH INTERACTIVE TELEVISION, INC. )

)

Request for Waiver and Declaratory Ruling of )

Sections 95.855 and 95.859(a) )

of the Commission's Rules )

## MEMORANDUM OPINION AND ORDER

**Adopted: January 3, 2000 Released: January 5, 2000**

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

**I. INTRODUCTION**

1\. On June 9, 1998, Dispatch Interactive Television, Inc. (DITV) filed
an Amendment to Request for Waiver and Declaratory Ruling[^1] of
Sections 95.855 and 95.859(a) of the Commission's Rules.[^2] DITV seeks
the waiver so that it may provide one-way voice or data transmission
services, including paging services, over a 218--219 MHz Service[^3]
system with an effective radiated power (ERP) of up to 250 watts.[^4]
DITV's request was placed on public notice on August 25, 1998.[^5] On
September 15, 1998, AirTouch Paging (AirTouch) filed comments in
opposition to the Waiver Request.[^6] On September 30, 1998, DITV filed
reply comments.[^7] No other comments were filed. For the reasons stated
herein, we grant DITV's request.

### II. BACKGROUND

2\. DITV holds the B Block 218-219 MHz Service license in the
Indianapolis, Indiana Metropolitan Statistical Area (MSA), Call Sign
KIVD0037.[^8] DITV is a wholly owned subsidiary of the Dispatch Printing
Company (Dispatch), which, through a subsidiary, also holds the license
for Channel 13 Television Station WTHR, Indianapolis, Indiana.[^9] The
system described by DITV in the Waiver Request includes a single cell
transmitter station (CTS) co-located upon the antenna structure used by
Station WTHR.[^10] DITV seeks permission to operate this CTS at an ERP
up to 250 watts.[^11] Section 95.855 of the Commission's Rules limits
CTSs to an ERP of 20 watts.[^12] DITV plans to use the system to provide
any and all one-way voice or data transmission services, including
paging services.[^13]

### DISCUSSION

### 

### 3. We may grant a request for waiver when a) the underlying purpose of the rule would not be served by application to the instant case, and a grant of the requested waiver would be in the public interest; or b) in view of unique or unusual circumstances, application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.[^14] We find that DITV has satisfied the first waiver standard.

4\. First, we agree with DITV[^15] that the underlying purpose of
Section 95.855 is to minimize the potential for 218-219 MHz Service
signals to interfere with Channel 13 Television reception.[^16] DITV
states that the design of its system eliminates this concern because
co-locating the 218-219 MHz Service transmitting antenna with the
Channel 13 television station antenna will maintain the transmitting
power disparity between Station WTHR and the 218-219 MHz Service signal
throughout Station WTHR's service area at approximately 10,000 to
1.[^17] Furthermore, we note that Section 95.861(e) of the Commission's
Rules, which requires 218-219 MHz Service licensees to correct
interference problems, provides an additional safeguard against harmful
interference to over-the-air broadcast television reception.[^18] In
light of these circumstances, and the fact that DITV's parent is the
Television Channel 13 licensee, we are persuaded that DITV will ensure
that the 218-219 MHz Service transmissions will not interfere with
Channel 13 television reception.[^19] Consequently, we conclude that the
requested waiver would not frustrate the underlying purpose of Section
95.855.

5\. DITV further argues that granting the Waiver Request will serve the
public interest by facilitating the provision of a new private
communications service in the one-way voice and data marketplace,
increasing the ability of licensees to respond to the demands of certain
members of the public that cannot currently receive service.[^20] DITV
asserts,[^21] therefore, that good cause is found to support grant of
its Waiver Request in that such grant will further the Commission's goal
of making flexible, market-oriented 218-219 MHz Service available to
consumers.[^22]

6\. AirTouch, in opposition, states that DITV's core rationale
supporting the Waiver Request is simply that its current configuration
of 218-219 MHz Service has not proven commercially feasible.[^23]
According to AirTouch, if we were to accept such a rationale and grant
the Waiver Request, we should expect a deluge of other 218-219 MHz
Service licensees seeking to provide alternative services such as those
proposed by DITV.[^24] AirTouch asserts that rather than eviscerating
the 218-219 MHz Service rules by waiver in this fashion, the Commission
should, if it accepts DITV's infeasibility argument, open a rulemaking
proceeding to consider revision of the Commission's rules for the
218-219 MHz Service or reallocation of the spectrum.[^25]

7\. We agree with DITV[^26] that AirTouch's objections are based on the
erroneous contention that, through the Waiver Request, DITV is seeking
to provide interconnected common carrier paging

services not presently authorized by the Commission's Rules.[^27] We
believe that DITV is neither threatening to eviscerate the 218-219 MHz
Service rules nor proposing to provide alternative services; rather, it
is our understanding that the services to be provided by DITV will be
services already authorized by the Commission's rules, requiring no
waiver.[^28] Although the 218-219 MHz Service originally was classified
as a fixed communications service, the Commission amended its rules in
May 1996 to permit 218-219 MHz Service licensees to operate a fully
mobile system.[^29] In addition, the Commission recently clarified that
both one- and two-way communications are permissible.[^30]

8\. AirTouch also argues that grant of the Waiver Request will undermine
the auction process, because there were dramatic differences in the
prices paid for 218-219 MHz Service spectrum as compared to spectrum
that was allocated to uses that permitted interconnected wireless common
carrier services.[^31] We believe that the Commission has already
rejected this argument, on the grounds that auction winners have no
reasonable expectation that they will be shielded from potential
competitors.[^32] Moreover, we believe that this argument is also based
on the mistaken premise that DITV proposes to offer services not already
permitted by the Commission's 218-219 MHz Service rules.

### IV. CONCLUSION

10\. We conclude that DITV has demonstrated good cause exists for the
grant of its request for waiver of Section 95.855 of the Commission's
Rules. We will allow it to provide non-common carrier non-interconnected
one-way voice or data transmission services, including paging services,
over a 218-219 MHz Service system with an ERP of up to 250 watts,
co-located with the transmitter for Channel 13 Television Station WTHR.
All other 218-219 MHz Service rules continue to apply to DITV's system.

##### V. 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, DITV's Amendment to Request for Waiver, filed on June
9, 1998, **IS GRANTED**.

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

> FEDERAL COMMUNICATIONS COMMISSION
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Amendment to Request for Waiver and Declaratory Ruling, Dispatch
    Interactive Television, Inc.: Station KIVD0037, Indianapolis,
    Indiana (filed June 9, 1998) (Waiver Request). The Commission
    subsequently modified the rules at issue. *See* Amendment of Part 95
    of the Commission's Rules to Provide Regulatory Flexibility in the
    218-219 MHz Service, *Report and Order and Memorandum Opinion and
    Order*, WT Docket No. 98-169 (rel. September 10, 1999) (*Flexibility
    Report and Order*). Because the waiver of Section 95.859(a) is no
    longer necessary given that these new rules became effective on
    January 3, 2000, we shall only address DITV's request with respect
    to Section 95.855.

[^2]: 47 C.F.R. §§ 95.855, 95.859(a).

[^3]: After DITV filed its request, the Commission redesignated what
    formerly had been known as Interactive Video and Data Service as the
    218-219 MHz Service. Amendment of Part 95 of the Commission's Rules
    to Provide Regulatory Flexibility in the 218-219 MHz Service,
    *Order, Memorandum Opinion and Order and Notice of Proposed
    Rulemaking*, WT Docket No. 98-169, 13 FCC Rcd 19064, 19075 ¶ 16
    (1998).

[^4]: Waiver Request at 1. DITV originally requested a waiver and
    declaratory ruling on February 3, 1998, to permit it to operate its
    system with an ERP of up to 20 watts. On June 9, 1998, it amended
    the request to seek a waiver to permit it to operate with an ERP of
    up to 250 watts. The June 9, 1998 filing does not request or discuss
    any desired declaratory ruling. We shall address herein only the
    June 9, 1998 request for a waiver.

[^5]: Dispatch Interactive Television Request for Declaratory Ruling and
    Waiver of Sections 95.855 and 95.859(a) of the Commission's Rules,
    *Public Notice*, 13 FCC Rcd 25388 (CCB 1998).

[^6]: Comments of AirTouch Paging (filed September 15, 1998) (Comments).

[^7]: Reply Comments of Dispatch Interactive Television (filed September
    30, 1998) (Reply Comments).

[^8]: Waiver Request at 1.

[^9]: *Id.* at 1-2.

[^10]: *Id*. at 4.

[^11]: *Id*.

[^12]: 47 C.F.R. § 95.855.

[^13]: Waiver Request at 1.

[^14]: 47 C.F.R. § 1.925(b)(3).

[^15]: Waiver Request at 3.

[^16]: *See* Amendment of Parts 0, 1, 2, and 95 of the Commission's
    Rules to Provide Interactive Video and Data Services, *Report and
    Order*, GEN Docket No. 91-2, 7 FCC Rcd 1630, 1633-34 ¶¶ 25-26
    (1992); s*ee also* *Flexibility Report and Order* at ¶ 110.

[^17]: Waiver Request at 4.

[^18]: 47 C.F.R. § 95.861(e).

[^19]: Waiver Request at 4. Indeed, DITV represents that it will
    eliminate any unacceptable interference to WTHR or cease operations.
    *Id*.

[^20]: *Id.* at 5.

[^21]: *Id*.

[^22]: *See Flexibility Report and Order* at ¶ 17.

[^23]: Comments at 2.

[^24]: *Id.*

[^25]: *Id.*

[^26]: Reply Comments at 1.

[^27]: *See* 47 C.F.R. § 95.805(c), (f). In addition, AirTouch notes
    that, since February 6, 1996, the Commission has suspended the
    filing of applications for new paging facilities licensed under
    Parts 22 and 90 of the rules, and argues that it would be unfair to
    allow others to convert spectrum to interconnected paging uses by
    waiver when the existing paging industry is at a standstill by
    virtue of a suspension of the acceptance and processing of
    applications that has lasted much longer than originally
    anticipated. Comments at 7-8 (citing Revision of Part 22 and Part 90
    of the Commission's Rules to Facilitate Future Development of Paging
    Systems, *Notice of Proposed Rulemaking*, WT Docket No. 96-18, 11
    FCC Rcd 3108 (1996)). We agree with DITV that the Commission's
    interim policy regarding paging applications is not relevant to
    DITV's request for waiver of the 218-219 MHz Service rules. Reply
    Comments at 8. *See, e.g.,* Commonwealth of Pennsylvania, *Order*,
    DA 99-1756, ¶ 11 (WTB PSPWD rel. August 31, 1999) (rejecting
    argument that waiver to allow public safety to share private land
    mobile radio (PLMR) frequencies should be granted only if the
    Commission also waived or lifted its suspension of inter-agency
    sharing by PLMR licensees). Further, we believe that this AirTouch
    argument also is premised on a misunderstanding of DITV's proposed
    service offerings.

[^28]: Reply Comments at 4.

[^29]: Amendment of Part 95 of the Commission's Rules to Allow
    Interactive Video and Data Service Licensees to Provide Mobile
    Service to Subscribers, *Report and Order*, WT Docket No. 95-47, 11
    FCC Rcd 6610, 6613 ¶ 9 (1996); 47 C.F.R. § 95.805.

[^30]: *Flexibility Report and Order at* ¶ 23.

[^31]: Comments at 6.

[^32]: *Flexibility Report and Order* at ¶ 18.