**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0002940300      |
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| Miller Breweries East            | ** |                              |
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| Application for Authority To     | *  |                              |
| Operate a 900 MHz Business and   | *) |                              |
| Industrial Land Transportation   | ** |                              |
| Station in Trenton, Ohio         |    |                              |
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| Request for Waiver of 900 MHz    |    |                              |
| Application Filing Freeze        | *  |                              |
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**ORDER**

**Adopted: October 10, 2008 Released: October 10, 2008**

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

1.  *Introduction*. We address a request for waiver filed by Miller
    Breweries East (Miller).[^1] Miller seeks a waiver of the 900 MHz
    application freeze[^2] prohibiting the filing of applications for
    new licenses. Miller requests a waiver to permit the processing of
    its application for frequencies formerly authorized to it under 900
    MHz Trunked, Industrial Land Transportation Station WPIM837 in
    Trenton, Ohio. For the reasons stated below, we grant the request
    for waiver and permit the processing of Miller's application.

2.  *Background*. On July 26, 2000, the Commission authorized Miller to
    operate the facilities authorized under Call Sign WPIM837. Miller
    operates the station to coordinate personnel and various activities
    at its brewery in Trenton, Ohio.[^3] The brewery employs
    approximately 650 people, and has several hundred visitors each
    year.[^4] Miller requests grant of its waiver request and processing
    of the underlying application in order to protect the lives and
    safety of its employees and brewery visitors. In particular, Miller
    notes that the refrigeration system at its Trenton plant uses
    150,000 pounds of anhydrous ammonia, a substance classified by the
    U.S. Environmental Protection Agency as extremely hazardous.[^5] In
    the event of plant evacuation or theft, and because its Trenton
    facility does not have a public address system, Miller relies on its
    internal communications system to relay vital information.[^6]

3.  On September 17, 2004, the Wireless Telecommunications Bureau
    (Bureau) instituted a freeze on applications for new 900 MHz
    Business and Industrial Land Transportation (B/ILT) authorizations
    because it feared that the exceptionally large number of
    applications it had received could compromise its ability to
    accommodate displaced systems during the 800 MHz band
    reconfiguration process designed to resolve interference to public
    safety communications.[^7] The Bureau stated that it would continue
    to accept applications for license modification and would entertain
    requests for waiver of the 900 MHz application freeze.[^8] The
    Commission subsequently released a *Notice of Proposed Rulemaking*
    seeking comment on the possibility of geographic licensing in the
    900 MHz B/ILT band, which reaffirmed the freeze and reiterated that
    it would consider requests for waiver of the freeze.[^9]

4.  On July 18, 2005, the Commission sent Miller a license renewal
    reminder letter.[^10] Miller, due to what it characterizes as an
    inadvertent oversight, failed to file a license renewal
    application.[^11] On October 12, 2005, the authorization for Call
    Sign WPIM837 expired by its own terms. On March 8, 2007, Miller
    filed the subject application, which seeks a new permanent
    authorization to cover its operation of the existing
    facilities.[^12] Miller also requests a waiver of the freeze on new
    900 MHz license applications to permit the processing of its
    application.[^13]

5.  *Discussion*. To obtain a waiver of the Commission\'s Rules, a
    petitioner must demonstrate either that (i) the underlying purpose
    of the rule(s) would not be served or would be frustrated by
    application to the present case, and that a grant of the waiver
    would be in the public interest;[^14] or (ii) in view of unique or
    unusual factual circumstances of the instant case, application of
    the rule(s) would be inequitable, unduly burdensome, or contrary to
    the public interest, or the applicant has no reasonable
    alternative.[^15] We conclude that Miller has demonstrated that
    grant of its waiver request would not frustrate the underlying
    purpose of the freeze.

6.  The purpose of the freeze on applications for new 900 MHz B/ILT
    licenses is to preserve adequate spectrum resources during the 800
    MHz band reconfiguration as well as to preserve the spectrum
    landscape until the Commission resolves the geographic licensing
    issues raised in the *900 MHz NPRM*.[^16] With regard to the freeze,
    Miller seeks a waiver pursuant to the *900 MHz Freeze Notice* and
    the *900 MHz NPRM*.[^17] Miller contends that the purpose of the
    freeze would not be frustrated by grant of its request,[^18] that
    such a grant would serve the public interest,[^19] and that it would
    also avoid the imposition on Miller of inequitable and otherwise
    undue burdens.[^20]

7.  Miller notes that the freeze was intended to ensure that Nextel
    Communications, Inc. (now Sprint Nextel), has the ability to obtain
    necessary spectrum in order to "house some of its systems while the
    800 MHz band is reconfigured to abate unacceptable interference to
    public safety, critical infrastructure, and other 'high site' 800
    MHz systems."[^21] Miller explains that its application only asks
    the Commission to reauthorize facilities that were already
    authorized and operational at the time the Commission imposed the
    freeze.[^22] Because this spectrum was already encumbered and, thus,
    would not be available for use in connection with Nextel's
    re-banding efforts, but for Miller's inadvertent failure to renew
    the subject license, Miller claims it is "exactly the type of
    applicant contemplated by" the *900 MHz NPRM*.[^23] Miller also
    contends that, in at least one other case where an incumbent's
    license has expired, the Commission permitted the reauthorization of
    the license, even in the face of an ongoing application freeze.[^24]

8.  Miller believes that a grant of the waiver is in the public
    interest, stating that the license is necessary for the protection
    of the life and safety of its employees and visitors to the Trenton
    brewery.[^25] The applicant is particularly concerned that it have a
    viable communications network in the event of plant evacuation or
    theft of the anhydrous ammonia.[^26] Miller notes that it seeks
    simply to secure the use of the spectrum for which it was previously
    authorized, to be put back into the position it was in prior to the
    license's expiration.[^27]

9.  As noted, Miller was licensed for Station WPIM837 until that license
    expired in October 2005. Thus, Miller was authorized to operate
    Industrial Land Transportation Station WPIM837 prior to the
    Commission's decision to institute a freeze on new applications for
    900 MHz B/ILT spectrum. Miller does not seek to modify any of its
    formerly licensed channels. Because grant of the underlying
    application will restore the channels and the exact operating
    parameters of the previous authorization, we believe that grant of
    this waiver and our processing of the related application will not
    interfere with the spectrum needs associated with the 800 MHz
    proceeding, or affect the 900 MHz B/ILT spectrum landscape during
    the pendency of the 900 MHz rulemaking. Further, given that Miller
    was an established 900 MHz licensee before the 800 MHz
    reconfiguration decision, it would not have been affected by the
    application freeze had it filed a timely renewal application. Thus,
    grant of the waiver will not interfere with the underlying purpose
    of the 900 MHz freeze.

10. Grant of the waiver request serves the public interest. The waiver
    permits the processing of an application that preserves a radio
    communications system that is used continually by Miller to carry
    out safety and security functions at its Trenton facility. Miller
    has satisfactorily shown that the underlying purposes of the 900 MHz
    freeze (*i.e*., to preserve unencumbered 900 MHz spectrum for
    possible future geographic licensing, as well as to support 800 MHz
    rebanding) would not be frustrated by grant of a waiver in this
    instance, in that, but for Miller's inadvertent oversight, the
    spectrum would in fact have been encumbered.

11. For the aforementioned reasons, we grant Miller's request for waiver
    of the 900 MHz freeze and permit the processing of its application.
    To the extent Miller may have operated on the subject frequencies
    without Commission authorization during the period after the
    expiration of the license for Station WPIM837 and before the
    Commission granted Miller an STA, our decision is without prejudice
    to any Enforcement Bureau action.[^28]

12. Accordingly, IT IS ORDERED, pursuant to Sections 1 and 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
    and section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, that
    the waiver request filed by Miller Breweries East, on March 8, 2007,
    as amended August 22, 2007, with FCC File No. 0002940300 IS GRANTED.

13. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), that
    application FCC File No. 0002940300, filed by Miller Breweries East,
    on March 8, 2007, as amended August 22, 2007, SHALL BE PROCESSED in
    accordance with this *Order*.

14. This action is taken under delegated authority pursuant to sections
    0.131(a) and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131(a),
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

> Katherine M. Harris

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: *See* FCC File No. 0002940300, Application for Wireless
    Telecommunications Bureau Radio Service Authorization (filed Mar. 8,
    2007; amended Aug. 22, 2007 and May 2, 2008) (Waiver Request).

[^2]: *See* Wireless Telecommunications Bureau Freezes Applications in
    the 900 MHz Band, *Public Notice*, 19 FCC Rcd 18277 (WTB 2004) (*900
    MHz Freeze Notice*); *see also* Amendment of Part 90 of the
    Commission's Rules to Provide for Flexible Use of the 896-901 MHz
    and 935-940 MHz Bands Allotted to the Business and Industrial Land
    Transportation Pool, WT Docket No. 05-62, *Notice of Proposed
    Rulemaking and Memorandum Opinion and Order*, 20 FCC Rcd 3814 (2005)
    (*900 MHz NPRM*).

[^3]: Waiver Request at 1-2.

[^4]: *Id*. at 2.

[^5]: *Id*.

[^6]: *Id*.

[^7]: *See 900 MHz Freeze Notice*, 19 FCC Rcd at 18277-78.

[^8]: *Id.* at 18278 n.7.

[^9]: *See 900 MHz NPRM,* 20 FCC Rcd at 3836 ¶ 67.

[^10]: *See* FCC Renewal Reminder Letter, Reference No. 3622807 (Jul.
    18, 2005).

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

[^12]: File No. 0002940300 (filed Mar. 8, 2007; amended Aug. 22, 2007
    and May 2, 2008). In a separate application dated August 17, 2007,
    Miller requested Special Temporary Authority (STA) to operate the
    subject 900 MHz Service facilities; this application was granted
    August 28, 2007, under Call Sign WQHL302. FCC File No. 0003140158
    (filed Aug. 16, 2007). The STA was renewed on February 20, 2008 (FCC
    File No. 0003328305, filed Feb. 19, 2008), and expired on August 18,
    2008.

    In June 2008, SABMiller, plc (parent company of Miller Breweries
    East) and the Molson Coors Brewing Co. merged; the resulting joint
    venture is called MillerCoors, LLC (MillerCoors).

    Prior to the expiration of the above Miller STA, the new MillerCoors
    joint venture requested STA by filing an application on July 15,
    2008 to operate the subject 900 MHz Service facilities; the
    application was granted July 25, 2008, under Call Sign WQJC722. FCC
    File No. 0003504078 (filed Jul. 15, 2008). This STA expires January
    21, 2009.

[^13]: Waiver Request at 1-3.

[^14]: 47 C.F.R. § 1.925(b)(3)(i).

[^15]: 47 C.F.R. § 1.925(b)(3)(ii).

[^16]: *See 900 MHz Freeze Notice*, 19 FCC Rcd 18277; *900 MHz NPRM*, 20
    FCC Rcd at 3836 ¶ 67.

[^17]: Waiver Request at 1-3.

[^18]: *Id*. at 1-2.

[^19]: *Id*. at 2.

[^20]: *Id*. at 2-3.

[^21]: Waiver Request at 1 (*citing 900 MHz Freeze Notice*).

[^22]: Waiver Request at 1.

[^23]: *Id*. at 1-2.

[^24]: *Id*. at 3 (*citing* Cam Jo, Inc., DBA Clearwater Yellow Cab
    Pascot & Tarpon Springs, *Order*, 22 FCC Rcd 3843 (WTB MD 2007)).

[^25]: Waiver Request at 1-2.

[^26]: *Id*. at 2.

[^27]: *Id*.

[^28]: *See* 47 C.F.R. § 1.903 (authorization required). Notwithstanding
    our decision in this particular case, we caution that a licensee
    must abide by the Commission\'s filing deadlines. All licensees are
    responsible for filing renewal applications and related petitions in
    a timely manner. Thus, we admonish Miller to conform to this
    requirement in the future and to take any necessary steps to avoid
    future occurrences, as the Commission does not routinely grant such
    waiver requests. Further, we note that the Enforcement Bureau has
    issued a penalty against Miller for unauthorized operation of
    WPIM837, and failure to renew its license. *See* In the Matter of
    Miller Breweries East, Inc., Trenton, Ohio, *Notice of Apparent
    Liability for Forfeiture*, 23 FCC Rcd 127 (EB 2008).