Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number D128959          |
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| Celtronix Telemetry, Inc.        | ) |                              |
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| Application for Private Land     | * |                              |
| Mobile Radio                     |   |                              |
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| Services licenses in the 218-219 | * |                              |
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| Request for Waiver of Sections   | * |                              |
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**ORDER**

**Adopted:** February 25, 2000 **Released:** March 15, 2000

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

# Introduction

1.  We have before us an application[^1] and waiver request[^2] filed by
    Celtronix Telemetry, Inc. (Celtronix) seeking authority to provide
    vehicle tracking services by means of a private land mobile radio
    (PLMR) system operating in the 218-219 MHz band on a secondary basis
    pursuant to Part 90 of the Commission's Rules. For the reasons
    stated below, we deny Celtronix's waiver request and dismiss its
    pending application.

# BACKGROUND

2.  Celtronix proposes to construct and operate a system in the Virginia
    Tidewater area[^3] to serve businesses that need to track fleets of
    vehicles. The systems Celtronix proposes would use vehicle-mounted
    units that would transmit Global Positioning System location
    information to one of a number of base stations, using the 218-219
    MHz band. The base stations, in turn, would relay information via a
    wireline connection to a system hub, which would relay location data
    -- via a wireline connection -- to subscribers' personal
    computers.[^4]

3.  Because Celtronix's system design requires one-way radio
    communications between vehicle-mounted units and base stations on
    the 218-219 MHz band, it has applied for authority to operate a land
    mobile system under Part 90 of the Commission's Rules.[^5] The
    Commission's Rules permit land mobile radio use of the 216-220 MHz
    band -- which includes the 218-219 MHz frequencies that are the
    subject of Celtronix's application -- and the 1427-1435 MHz band
    only for telemetering purposes.[^6] In addition, the portion of the
    band between 218 and 219 MHz is allocated on a primary basis to the
    218-219 MHz Service.[^7]

4.  Recently, the Commission substantially restructured the service
    rules for the 218-219 MHz Service to provide additional flexibility
    for use of the service in an effort to, *inter alia*, promote and
    facilitate competition and provision of services within the 218-219
    MHz band.[^8] Because the new rules took effect in January, the
    "full and effective development and deployment of the 218-219 MHz
    Service" that the rule changes are designed to foster is in an
    incubative stage,[^9] and, as Celtronix observes, there is only
    limited use of the 218-219 MHz Service at the present time.[^10]

# DISCUSSION

5.  Celtronix's proposed operations would require a waiver of Section
    90.259, which limits Part 90 use of the 216-220 MHz band to
    telemetering operations.[^11] To obtain a waiver of the Commission's
    Rules, a petitioner must demonstrate either (a) that the underlying
    purpose of the rule(s) would not be served or would be frustrated by
    application to the present case, and grant of the requested waiver
    would be in the public interest; or (b) that, in view of unique or
    unusual factual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome or contrary to the public interest,
    or the applicant has no reasonable alternative.[^12] We find that
    Celtronix has met neither standard.

6.  *Underlying Purpose*. We find that Celtronix's proposal is
    inconsistent with the underlying purpose of both Section 90.259 and
    the 218-219 MHz Service rules. As noted above, Section 90.259 limits
    Part 90 use of the 216-220 MHz band to telemetering operations. When
    the Commission proposed Section 90.259, it specifically excluded
    vehicle locator systems from the proposed allocation, and instead
    described its intention that the band "be available for local area
    requirements that can be accommodated compatibly on a case-by-case
    basis with other users and cannot be expected to be available
    nationwide, without constraint, for wide-area coverage
    systems."[^13] In the subsequent *Report and Order*, the Commission
    reaffirmed this approach by rejecting as inappropriate comments that
    proposed nationwide use of the 216-220 MHz band by the trucking
    industry.[^14] Accordingly, we find that application of the
    limitation in Section 90.259 to Celtronix's proposal furthers the
    Commission's intent.

7.  In addition, we reject Celtronix's contention that its application
    is similar to an application filed by Itron, Inc., which requested
    and was granted authority to operate utility meter reading
    technology in the 1427-1429 MHz band nationwide on a secondary
    basis.[^15] We find the instant application readily distinguishable
    in that it proposes operations in the 218-219 MHz band. The rules
    for this band recently were restructured to create a regulatory
    structure that enables licensees to meet the public's current and
    future needs through more technically and economically efficient use
    of the spectrum.[^16] Specifically, the Commission removed those
    rules limiting use of the band to a short-distance one- or two-way
    point-to-point or point-to-multipoint private radio service and
    instead allowed licensees to design their service offerings in
    response to market demand.[^17] In light of these rule changes, we
    are hesitant to allow any licensing in the band that may inhibit the
    rapid development of the 218-219 MHz Service. Although we recognize
    that Celtronix makes its requests for operation on a secondary basis
    -- and thus would not be permitted to cause interference to 218-219
    MHz Service licenses -- we are nonetheless concerned that
    Celtronix's proposed operations could discourage development of
    218-219 MHz Service systems just as licensees are poised to make
    viable use of the band. The Commission does not coordinate secondary
    operations with respect to primary or permitted services.[^18] We
    are concerned that Celtronix's request is devoid of a mechanism or
    plan by which Celtronix will avoid causing interference to the
    operations accorded primary status in the 218-219 MHz band.

8.  Further, we are concerned that permitting implementation of
    Celtronix's proposal could have an adverse effect on the rapid
    deployment of services in the 218-219 MHz band. In this connection,
    we note that in a similar situation where the Commission broadly
    structured the permissible communications within a radio band in
    order to allow licensees to develop applications that best serve
    market demand, it explicitly limited the concurrent authorization of
    services on a secondary basis because of such concerns. When the
    Commission broadened the rules for the Local Multipoint Distribution
    Service (LMDS) to encompass a wide variety of services,[^19]
    incumbent licensees in the 31 GHz band were accommodated in a
    spectrum sharing and segmentation plan,[^20] but no new licensing of
    31 GHz services -- either on a primary or secondary basis -- was
    allowed.[^21] The Commission concluded that expansion of these
    services "would likely have a chilling effect on the efforts of LMDS
    providers to establish and expand their services in response to
    consumer demand, seriously jeopardizing our objectives in
    designating the band for LMDS."[^22] We recognize that under the
    revisions to the 218-219 MHz Service, concurrent licensing is still
    available on a secondary basis, but we cannot agree with Celtronix
    that the 218-219 MHz proceeding did not affect such licensing.[^23]
    Because stations licensed on a secondary basis, by definition, may
    not cause harmful interference to stations of primary services,[^24]
    we must evaluate any application for licensing under Part 90 of the
    Commission's Rules within the context of permissible primary
    operations in the 218-219 MHz Service.

9.  *Public Interest.* We believe that Celtronix's proposal is
    distinguishable from the Itron application in that Itron proposed to
    use the frequencies for telemetering purposes, while Celtronix
    proposes vehicle tracking services. In this regard, we find that
    Celtronix's proposal is similar to the more recently denied
    application and waiver request filed by Technology for
    Communications International (TCI) to provide a tracking and
    messaging service for the commercial trucking industry on high seas
    public coast frequencies.[^25] Celtronix argues that grant of a
    waiver would be in the public interest, because the Commission has
    recognized the benefits of vehicle tracking applications such as
    Celtronix proposes.[^26] TCI made a similar argument, which we
    rejected.[^27] We noted that this technology can be deployed in a
    number of services that the Commission licenses.[^28] For example,
    the Location and Monitoring Service (LMS) supports such
    operations,[^29] and Celtronix is, itself, developing a vehicle
    tracking service in the 218-219 MHz Service.[^30] In addition, as
    noted earlier, Celtronix's representation that the system will
    operate on a secondary basis to 218-219 MHz Service operations is
    not sufficient to eliminate any concern about harmful interference,
    given that Celtronix does not appear to have a plan for avoiding
    interference. Consequently, we find that the record in this
    proceeding does not indicate sufficiently that grant of the
    requested waiver would be in the public interest.

10. *Unique Circumstances*. Celtronix has not demonstrated that there
    are circumstances unique to the Virginia Tidewater area that prevent
    the use of other frequencies to provide vehicle tracking
    applications. Indeed, Celtronix's request could be made with respect
    to any other geographic area -- or even as part of an application to
    provide nationwide service. We therefore conclude that Celtronix has
    not established the existence of unique or unusual circumstances
    justifying a waiver.

11. *Lack of Reasonable Alternatives*. As noted above, Commission rules
    for some non-PLMR services permit vehicle tracking operations, and
    such offerings are being provided and developed.[^31] Thus, we
    believe that Celtronix has reasonable alternatives under the
    Commission's Rules that do not require a waiver. In addition,
    Celtronix has not described how it is unable to provide the proposed
    vehicle tracking services on its existing, primary 218-219 MHz
    Service license, or, if not, whether it has attempted to obtain
    additional licenses in any of the services in which vehicle tracking
    services may be offered, either by initial licensing or through
    partitioning and disaggregation. Consequently, we cannot conclude
    that there are no reasonable alternatives to Celtronix's proposal.

# CONCLUSION

12. For the foregoing reasons, we conclude that grant of Celtronix's
    proposed vehicle location system in the Virginia Tidewater area on
    the 218-219 MHz band under a Part 90 authorization would unduly
    jeopardize development of the 218-219 MHz Service, and therefore
    would conflict with the underlying purpose of the Commission's Rules
    and would not be in the public interest. Because we conclude the
    Celtronix has not provided sufficient justification for the waivers
    to operate such a system, we deny its waiver requests and dismiss
    the associated applications.

# ORDERING CLAUSES

13. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 309
    of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, and
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, the
    waiver request filed by Celtronix, Inc., on July 19, 1999, IS
    DENIED.

14. IT IS FURTHER ORDERED that the application of Celtronix, Inc. to
    operate a private land mobile system on a secondary basis in the
    218-219 MHz band in the Virginia Tidewater area, FCC File No.
    D128959, IS DISMISSED.

15. 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]: Celtronix Telemetry, Inc. Private Land Mobile Radio Services
    Application for Telemetry License in the 218-219 MHz Band, filed
    July 19, 1999 (Celtronix Application) at Exhibit I, p. 1.

[^2]: Petition of Celtronix Telmetry, Inc. for Waiver of Sections
    90.127(b) and 90.155(a) of the Commission's Rules to Celtronix to
    Provide a Vehicle Tracking Service in the Los Angeles Metropolitan
    Statistical Area, filed July 19, 1999 (Celtronix Waiver Petition).

[^3]: Specifically, Celtronix's proposed system would operate in
    multiple counties and independent cities in the Newport News,
    Norfolk, and Virginia Beach, Virginia area. Celtronix Application at
    Exhibit 1, p. 1. *See also* Celtronix Application at Supplement to
    Schedule E (listing multiple control station points in southeastern
    Virginia and northeastern North Carolina).

[^4]: Celtronix Application at Exhibit I, p. 1.

[^5]: Specifically, Celtronix requests authority pursuant to Sections
    90.35, 90.117, 90.119, 90.137, 90.238, and 90.259 of the
    Commission's Rules, 47 C.F.R §§ 90.35, 90.117, 90.119, 90.137,
    90.238, 90.259.

[^6]: 47 C.F.R. §§ 90.35(d)(55), 90.259.

[^7]: 47 C.F.R. § 2.106 footnote US317. The 218-219 MHz Service was
    formerly known as the Interactive Video and Data Service. *See*
    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*, 13 FCC Rcd 19064,
    19075 ¶ 16 (1998) (*218-219 MHz Service NPRM*).

[^8]: 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, FCC 99-239,
    ¶¶ 1, 14 (rel. Sept. 10, 1999) (*218-219 MHz Service Order*).

[^9]: *Id.* at ¶ 14.

[^10]: Celtronix Application, Exhibit I at 2.

[^11]: 47 C.F.R. § 90.259. The Commission's Rules define telemetering as
    "the transmission of non-voice signals for the purpose of
    automatically indicating or recording measurements at a distance
    from the measuring instrument." 47 C.F.R. § 90.7. Celtronix appears
    to assume that its proposed operations come within the definition of
    telemetering. We disagree. Neither the rules for the 218-219 MHz
    Service nor the rules for the Location and Monitoring Service (LMS)
    define the types of operation that Celtronix proposes as
    telemetering. Indeed, telemetering is not authorized on the 902-928
    MHz LMS frequency band. 47 C.F.R. § 90.238. Therefore, we conclude
    that Celtronix's proposed operations do not come within the
    definition of telemetering, and therefore require a waiver of
    Section 90.259. In addition, Celtronix requests waivers of Sections
    90.127(b) and 90.155(a) of the Commission's Rules, 47 C.F.R. §§
    90.127(b), 90.155(a), regarding the construction period and
    permissible number of mobile units for Part 90 operations. *See*
    Celtronix Waiver Petition at 1. Because we conclude that a waiver of
    Section 90.259 is not warranted, however, we need not and do not
    address Sections 90.127(b) and 90.155(a).

[^12]: 47 C.F.R. § 1.925(b)(3).

[^13]: Amendment of Parts 2, 87 and 91 of the Rules to Delete Provisions
    for Aeronautical Telemetering and to Make Provisions for Land Mobile
    Telemetering in the Industrial Radio Services in the Frequency Band
    216-220 MHz, *Notice of Proposed Rulemaking*, Docket No. 18924, 24
    FCC 2d 554, 556 ¶ 8 (1970).

[^14]: Amendment of Parts 2, 87 and 91 of the Rules to Delete Provisions
    for Aeronautical Telemetering and to Make Provisions for Land Mobile
    Telemetering in the Industrial Radio Services in the Frequency Band
    216-220 MHz, *Report and Order*, Docket No. 18924, 29 FCC 2d 360,
    361 ¶ 2 (1971). We recognize that the principal concerns in the
    proceeding related to Government use of the 216-220 MHz band, which
    Celtronix contends is not an issue since the 218-219 MHz band was
    allocated on a primary basis to the 218-219 MHz Service. Celtronix
    Application, Exhibit I at 2. We note, however, that Celtronix has
    not shown through engineering studies how its proposed systems would
    protect current and future licensees in the band. Indeed, given
    Celtronix's request for an extended construction period of
    unspecified length partly on the grounds that it needs additional
    time to design a system to eliminate any potential interference to
    218-219 MHz Service operations, it appears that Celtronix does not
    yet have a design or plan for preventing harmful interference to
    primary users. *See* Celtronix Waiver Petition at 5. Thus, we
    believe that the concerns underlying the exclusion of vehicle
    tracking services from the 216-220 MHz band remain relevant to
    Celtronix's request.

[^15]: Celtronix Application, Exhibit I at 1.

[^16]: *218-219 MHz Service Order* at ¶ 1.

[^17]: *Id*. at ¶ 16. Although the Commission has noted the variety of
    services that have been proposed for the 218-219 MHz Service,
    including commercial data applications, remote meter reading, and
    inventory monitoring, each licensee will ultimately determine the
    particular service it will offer. *See* *218-219 MHz Service NPRM*,
    13 FCC Rcd at 19075 ¶ 16.

[^18]: Teledesic Corporation, *Order and Authorization*, 12 FCC Rcd
    3154, 3162 n.23 (IB 1997).

[^19]: Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's
    Rules to Redesignate the 27.5-29.5 GHz Frequency Band, To
    Reallocation the 29.5-30.0 GHz Frequency Band, To Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, *Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking*, CC Docket
    No. 92-297, 12 FCC Rcd 12545, 12636, ¶ 205 (1997).

[^20]: *See generally id.* at 12581 ¶ 79.

[^21]: *Id.* at 12590 ¶ 104.

[^22]: *Id.* at 12588 ¶ 98.

[^23]: Celtronix Application, Exhibit I at 3.

[^24]: 47 C.F.R. § 2.104(d)(4)(i).

[^25]: *See* Technology for Communications International, *Order*, DA
    99-2015 (WTB PSPWD rel. Oct. 1, 1999) (*TCI Order*).

[^26]: Celtronix Application, Exhibit I at 4 (citing Amendment of Part
    90 of the Commission's Rules to Adopt Regulations for Automatic
    Vehicle Monitoring Systems, *Report and Order*, PR Docket No. 93-61,
    10 FCC Rcd 4695 (1995)).

[^27]: *TCI Order* at ¶ 9.

[^28]: *Id.*

[^29]: *See* Amendment of Part 90 of the Commission\'s Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Second Report
    and Order*, PR Docket No. 93-61, 13 FCC Rcd 15182, 15185 ¶ 4 (1998)
    (describing vehicle tracking applications under LMS). The Commission
    completed the competitive bidding and authorization process for
    licenses in the LMS last year. *See* Wireless Telecommunications
    Bureau Announces It Is Prepared to Grant Location and Monitoring
    Service Licenses after Final Payment Is Made, *Public Notice*, DA
    99-1124 (WTB rel. June 8, 1999).

[^30]: Celtronix Application, Exhibit I at 3. Celtronix is the B-block
    licensee for the Norfolk-Virginia Beach-Portsmouth, VA MSA.

[^31]: *See supra* notes 28-30 and accompanying text.