**Before the**

**Federal Communications Commission**

# Washington, D.C. 20554

In the Matter of )

)

SOUTHERN CALIFORNIA GAS COMPANY )

)

Petition for Reconsideration )

**MEMORANDUM OPINION AND ORDER**

**Adopted:** October 13, 1999 **Released:** October 14, 1999

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

1.  On June 25, 1998, Southern California Gas Company (SoCal) submitted
    a petition for reconsideration[^1] of a decision[^2] by the
    Licensing and Technical Analysis Branch (Branch), Public Safety and
    Private Wireless Division, Wireless Telecommunications Bureau,
    denying SoCal's request for waiver of Section 90.155(a) of the
    Commission's Rules, 47 C.F.R. § 90.155, and for an extended
    implementation schedule to construct the facilities authorized under
    Call Sign WPKJ571. [^3] Based on the record in this proceeding,
    including, documentation received from SoCal, we conclude that
    SoCal's request should be granted in part and denied in part.
    Specifically, we grant SoCal's request to reinstate the five
    frequencies that were in operation at its Oat Mountain site prior to
    November 12, 1997, and we otherwise affirm the Branch's decision to
    deny the request for waiver of Section 90.155(a).

2.  SoCal was initially granted a license for Call Sign WPKJ571 on March
    12, 1997, to use frequencies between 158.130 MHz and 158.265 MHz at
    six sites in southern California. Section 90.155(a) of the
    Commission's Rules provides that private land mobile radio stations
    below 700 MHz (except in the 220 MHz band) must be placed in
    operation within eight months from the date of grant or the
    authorization cancels automatically and must be returned to the
    Commission.[^4] SoCal sought a waiver of this rule and an extended
    implementation period similar to that allowed under Section 90.629
    of the Commission's Rules, 47 C.F.R. § 90.629, for stations
    operating in the 800/900 MHz band.[^5] The Branch denied that
    request for waiver,[^6] and SoCal sought reconsideration.

3.  As an initial matter, we note that SoCal has submitted with its
    petition for reconsideration a certification that the Oat Mountain
    site associated with Call Sign WPKJ571 was constructed, and 100
    mobile/portable units placed in operation for frequencies 158.145
    MHz, 158.175 MHz, 158.220 MHz, 158.235 MHz, and 158.265 MHz, on
    October 1, 1997.[^7] Based on this certification, we grant SoCal's
    petition for reconsideration as it relates to the Oat Mountain site.
    Accordingly, the license for Call Sign WPKJ571 will be reinstated
    for the Oat Mountain site only.

4.  Regarding the remainder of SoCal's Petition, to obtain a waiver of
    the Commission's Rules for wireless services, a petitioner must
    demonstrate that the rules' underlying purpose would not be served
    or would be frustrated by application to the instant case and a
    waiver would be in the public interest; or that, in light 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.[^8] We find that
    grant of a waiver is not warranted based on the circumstances
    presented.

5.  The purpose of the eight-month construction requirement is to ensure
    that licensees actually use the spectrum that they are assigned.[^9]
    Significantly, SoCal filed its waiver request November 10, 1997,
    just two days prior to its construction deadline, and proposed an
    implementation schedule for which it sought Commission
    approval.[^10] The proposed schedule indicates that SoCal did not
    finalize its budget for radio equipment until October 1997, seven
    months after license grant. Consequently, it appears that SoCal was
    not prepared to construct within the time frame allotted by the
    Rules when it initially applied for a license; as a result, it
    should have considered applying for a waiver at that time. Because
    the record is devoid of any discussion as to why SoCal through
    diligent efforts, was unable to construct within the allotted time
    frame, we are not persuaded that a waiver is warranted under these
    circumstances. Thus, we find that granting the requested waiver
    would be contrary to the underlying purpose of the rule and not in
    the public interest.

6.  In addition, we note that Section 90.155 of the Commission's Rules
    expressly provides that only local government entities may request
    an extended implementation period for stations below 700 MHz,[^11]
    because of the challenges faced by governmental licensees in
    securing approval and funding for communications systems.[^12] Given
    that SoCal is not a local governmental entity and has not
    demonstrated that it is sufficiently similar thereto, we do not
    believe that grant of the requested relief is warranted.

7.  Further, we note that SoCal has alternatives under the Rules.
    Frequencies in the 150-174 MHz band are available only on a shared
    basis.[^13] Thus, SoCal will be able to apply for channels in the
    150-174 MHz band at the same locations when it has the necessary
    funding to construct such stations. While we acknowledge SoCal's
    concern that not all of these frequencies may be available at that
    time, we do not believe that this concern warrants foreclosing other
    applicants who are willing and able to construct expeditiously from
    the opportunity to apply for and receive authorizations for such
    frequencies until SoCal is able to construct. Moreover, even if such
    frequencies were not available to SoCal, a frequency coordinator
    could recommend alternative frequencies, and SoCal could adjust its
    plans to use such frequencies similar to its current license, Call
    Sign WPKJ571, which does not show identical frequency assignments at
    each site.

8.  Accordingly, **IT IS ORDERED** that, pursuant to the authority of
    Sections 4(i) and 405 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 154(i) and 405, and Section 1.106 of the Commission's
    Rules, 47 C.F.R. § 1.106, the request filed by Southern California
    Gas Company on June 25, 1998, for reconsideration of the May 22,
    1998, decision denying an extension of the construction deadline for
    station WPKJ571 is **GRANTED** **IN PART** and **DENIED** **IN
    PART** to the extent described above.

9.  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 and
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

cc: Private Wireless Division/Chron

D. Terry

H. Zeiler

R. Melson

J. Borkowski

K. Hosford

S. Stone

M. Shultz

S. Linn

K. Lawver

A. Knerr

I. Keltz

Book copy

[^1]: *See* Southern California Gas Company Petition for Reconsideration
    (filed June 25, 1998) (Petition).

[^2]: Letter from Michael J. Regiec, Acting Chief, Licensing and
    Technical Analysis Branch, Public Safety and Private Wireless
    Division to Terry Romine, counsel for SoCal (May 28, 1998) (Waiver
    Denial).

[^3]: *See* Southern California Gas Company Request for Waiver of FCC
    Rule Section 90.155(a) and an Extended Implementation Schedule
    (filed Nov. 10, 1997) (Waiver Request).

[^4]: 47 C.F.R. § 90.155(a).

[^5]: Under certain circumstances, applicants for trunked or
    conventional systems in the 800/900 MHz bands may be authorized a
    period of up to five years for constructing and placing a system in
    operation. *See* 47 C.F.R. § 90.629.

[^6]: *See* Waiver Denial at 1.

[^7]: Petition at Exhibit B.

[^8]: *See* 47 C.F.R. § 1.925(b)(3).

[^9]: *See* Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing, and Operation of Private
    Land Mobile Radio Stations, *Report and Order*, RM-6910, 6 FCC Rcd
    7297, 7299 ¶ 8 (1991).

[^10]: *See* Waiver Request at Attachment A.

[^11]: *See* 47 C.F.R. § 90.155(b).

[^12]: *See* Amendment of Part 90 of the Commission's Rules to Simplify
    Certain Procedure for Filing Applications, *Report and Order*,
    Docket No. 21350, 70 FCC 2d 501, 502 ¶ 4 (1978).

[^13]: *See* 47 C.F.R. § 90.173.