**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
|                                  | *) |                              |
| JACK IN THE BOX, INC.            | ** |                              |
|                                  |    |                              |
| Licensee of Industrial/Business  | *  |                              |
| Pool (IG) Stations WPTC451,      | *) |                              |
| WPVM527, WPVS418, Bakersfield,   | ** |                              |
| California; WPVM591, Alameda,    |    |                              |
| California; and                  | *  |                              |
|                                  | *) |                              |
| TACO BELL OF AMERICA, INC.       | ** |                              |
|                                  |    |                              |
| Licensee of Industrial/Business  | *  |                              |
| Pool (IG) Station WPTX772,       | *) |                              |
| Bakersfield, California          | ** |                              |
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+----------------------------------+----+------------------------------+

**ORDER PROPOSING MODIFICATION**

**Adopted: July 6, 2007 Released: July 9, 2007**

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

1.  *Introduction*. On March 2, 2007, the Wireless Telecommunications
    Bureau's Mobility Division (Division) directed the Personal
    Communications Industry Association (PCIA) to suggest alternative
    frequencies or an alternative technical solution for the
    above-captioned stations authorized to operate on frequencies
    457.5875 MHz and 457.6125 MHz, which are licensed to Jack in the
    Box, Inc. (Jack in the Box) and Taco Bell of America, Inc. (Taco
    Bell).[^1] On March 28, 2007, PCIA responded that the licenses
    should be modified to delete the frequencies.[^2] For the reasons
    set forth below, we initiate a proceeding to modify the licenses of
    Jack in the Box for Stations WPTC451, WPVM527, and WPVS418,
    Bakersfield, California, and Station WPVM591, Alameda, California;
    and the license of Taco Bell for Station WPTX772, Bakersfield,
    California, by deleting frequencies 457.5875 MHz and 457.6125 MHz.

2.  *Background.* In 2005, Fresno Mobile Radio, Inc. (FMR), a licensed
    operator of UHF land mobile stations operating throughout the
    greater Fresno, California area, submitted to the Commission a
    letter arguing that a number of 450-470 MHz band private land mobile
    radio stations licensed to Jack in the Box and Taco Bell in Fresno
    County, California had been improperly coordinated and licensed.[^3]
    FMR stated that it has been incurring harmful interference from
    these stations, and that the manner in which the stations are
    licensed impedes the resolution of interference disputes among
    licensees.

3.  In 2006, the Division directed PCIA to review its coordination of
    drive-through restaurant operations for specific applicants, and
    indicate whether, in light of concerns raised by FMR, any of the
    licenses should be modified.[^4] On January 15, 2007, PCIA responded
    that "there are several fast food restaurants licensed on
    \[frequencies 457.5875 MHz and 457.6125 MHz\] that may require
    re-evaluation" because their 21 dBu contours overlap the 39 dBu
    contours of centralized trunked systems licensed to FMR.[^5] On
    March 2, 2007, the Division directed PCIA to provide a revised
    analysis of the best available frequency configuration for the
    applications submitted by Jack in the Box and Taco Bell.[^6] On
    March 28, 2007, PCIA responded that it had discussed deleting
    frequencies 457.5875 MHz and 457.6125 MHz from the above-captioned
    licenses with the licensees' contact representatives, who concurred
    in the recommendation.[^7]

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1.  *Discussion*. Based on the information before us, we believe that
    the above-captioned licenses should be modified to prevent
    interference to FMR's centralized trunked operations. We believe
    that Section 316(a)(1) of the Communications Act of 1934, as
    amended, provides the appropriate vehicle for resolving this
    matter.[^8] Section 316(a)(1) permits the Commission to modify a
    station license if the action will promote public interest,
    convenience, and necessity.[^9] Thus, based on the record before us,
    we conclude that it is in the public interest to modify Jack in the
    Box's licenses for Stations WPTC451, WPVM527, WPVS418, and WPVM591,
    and Taco Bell's license for Station WPXT772, by deleting frequencies
    457.5875 MHz and 457.6125 MHz. We note that deleting these
    frequencies should not unduly disrupt the licensees' operations,
    because the stations are authorized to operate on sufficient
    alternate frequencies.

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4.  In accordance with Section 1.87(a) of the Commission\'s Rules,[^10]
    we will not issue a modification order until Jack in the Box and
    Taco Bell have received notice of our proposed action and have had
    an opportunity to file a protest. To protest the modification, Jack
    in the Box and Taco Bell must, within thirty days of the release
    date of this *Order Proposing Modification*, submit a written
    statement with sufficient evidence to show that the modification
    would not be in the public interest. The protest must be mailed to
    the Office of the Secretary, Federal Communications Commission, 445
    Twelfth Street, S.W., Washington, DC 20554, Attn: Mel Spann.[^11] If
    no protest is filed, Jack in the Box and Taco Bell will have waived
    their right to protest the modification and will be deemed to have
    consented to the modification.

5.  *Conclusion and Ordering Clauses.* For the reasons stated above, we
    propose to modify Jack in the Box's licenses for Stations WPTC451,
    WPVM527, WPVS418, and WPVM591, and Taco Bell's license for Station
    WPXT772, by deleting frequencies 457.5875 MHz and 457.6125 MHz.

6.  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 1.41 of Commission's Rules, 47 C.F.R. § 1.41, the request
    for relief and advisory opinion submitted by Fresno Mobile Radio on
    April 29, 2005 IS GRANTED to the extent indicated above.

7.  IT IS FURTHER ORDERED that IT IS PROPOSED, pursuant to Sections 4(i)
    and 316(a) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 316, and Section 1.87 of Commission's Rules, 47 C.F.R. §
    1.87, that the licenses for Industrial/Business Pool Stations
    WPTC451, WPVM527, WPVS418, and WPVM591 held by Jack in the Box,
    Inc., and the license for Industrial/Business Pool Station WPXT772
    held by Taco Bell of America, Inc. BE MODIFIED by deleting
    frequencies 457.5875 MHz and 457.6125 MHz.

8.  IT IS FURTHER ORDERED that this *Order Proposing Modification* SHALL
    BE SENT by certified mail, return receipt requested, to Jack in the
    Box, Inc., Attn: Sheryl Kirkpatrick, 2113 Taft Highway, Bakersfield,
    California 93313; Jack in the Box, Inc., Attn: Dustyi Richardson,
    9330 Balboa, San Diego, California 92123; and Taco Bell of America,
    Inc., Attn: Tammy Huges, P.O. Box 35520, 2433 N. Chester,
    Bakersfield, California 93308.

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,
    0.331.

> FEDERAL COMMUNICATION COMMISSION

Scot Stone

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

# 

[^1]: *See* Letter dated Mar. 2, 2007 from Scot Stone, Deputy Chief,
    Mobility Division, Wireless Telecommunications Bureau, to Don
    Andrew, Manager, PCIA Frequency Coordination Services, Personal
    Communications Industry Association (Division 2007 Letter).

[^2]: *See* Letter dated Mar. 28, 2007 from Don Andrew, Manager, PCIA
    Frequency Coordination Services, to Melvin Spann, Federal
    Communications Commission, WTB, Mobility Division (PCIA Response to
    Division 2007 Letter).

[^3]: *See* Letter dated Apr. 29, 2005 from Robert Schwaninger, Jr.,
    counsel for Fresno Mobile Radio, Inc., to Catherine W. Seidel,
    Acting Chief, Wireless Telecommunications Bureau; Ed Thomas, Chief,
    Office of Engineering and Technology; and David Solomon, Chief,
    Enforcement Bureau.

[^4]: *See* Letter dated Dec. 12, 2006 from Scot Stone, Deputy Chief,
    Mobility Division, Wireless Telecommunications Bureau, to Don
    Andrew, Frequency Coordination Department, Personal Communications
    Industry Association.

[^5]: *See* Letter dated Jan. 15, 2007 from Don Andrew, Manager, PCIA
    Frequency Coordination Services, to Melvin Spann, Federal
    Communications Commission, WTB, Mobility Division. Section
    90.187(b)(2)(v) of the Commission's Rules states that "\[a\] new
    applicant whose interference contour overlaps the service contour of
    a trunked licensee will be assigned the same channel as the trunked
    licensee only if the trunked licensee consents in writing and a copy
    of the written consent is submitted to the certified frequency
    coordinator responsible for coordination of the application." 47
    C.F.R. § 90.187(b)(2)(v). For UHF stations, the 39 dBu contour is
    the service contour, while the 21 dBu contour is the interference
    contour. 47 C.F.R. § 90.187(b)(2)(iii).

[^6]: Division 2007 Letter at 2.

[^7]: PCIA Response to Division 2007 Letter at 2.

[^8]: 47 U.S.C. § 316(a)(1).

[^9]: *Id.*

[^10]: 47 C.F.R. § 1.87(a).

[^11]: The address for FCC locations should be used only for documents
    filed by United States Postal Service first-class mail, Express
    Mail, and Priority Mail. Hand-delivered or messenger-delivered
    documents for the Commission\'s Secretary are accepted only at our
    new location at 236 Massachusetts Avenue, N.E., Suite 110,
    Washington, D.C. 20002. Other messenger-delivered documents,
    including documents sent by overnight mail (other than United States
    Postal Service, Express Mail, and Priority Mail) should be addressed
    for delivery to 9300 East Hampton Drive, Capitol Heights, MD 20743.
    *See* FCC Announces a New Filing Location for Paper Documents and a
    New Fax Number for General Correspondence, *Public Notice*, 16 FCC
    Rcd 22165 (2001).