**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Nos. 0001852833         |
|                                  | *) |                              |
| EFL REALTY TRUST                 | ** | 0001855236, 0001856946       |
|                                  |    |                              |
| Applications for New Licenses    | *  | 0001863513, 0001863518       |
|                                  | *) |                              |
| In the Non-SMR 900 MHz Band for  | ** | 0001863675, 0001864169       |
|                                  |    |                              |
| Industrial/Business Pool,        | *  | 0001864170, 0001864172       |
| Trunked (YU)                     | *) |                              |
|                                  | ** | 0001864174, 0001864361       |
| Stations at Multiple Locations   |    |                              |
|                                  | *  | 0001865507, 0001865743       |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: October 9, 2008 Released: October 15, 2008**

By the Commission:

# introduction

1.  We have before us an Application for Review filed by EFL Realty
    Trust (EFL) challenging the dismissal of the above-captioned Private
    Land Mobile Radio (PLMR) applications by the Wireless
    Telecommunications Bureau's (Bureau) Mobility Division
    (Division).[^1] As discussed below, we deny EFL's Application for
    Review and affirm the Division's determination that EFL did not make
    a sufficient showing under the Commission's channel loading
    requirements to justify grant of its PLMR applications. In
    particular, we emphasize that EFL was required to demonstrate a need
    for the requested channels, even if EFL intends to use the channels
    for internal communications only, and that EFL failed to do so.

# background

2.  *800 and 900 MHz Bands*. Subpart S of Part 90 of the Commission's
    rules governs the use and licensing of the 800 and 900 MHz
    bands.[^2] Certain channels in these bands (collectively referred to
    as non-Specialized Mobile Radio (SMR) or PLMR channels) may be used
    for Public Safety, Business, and Industrial/Land Transportation
    communications, for internal communications, or to provide service
    to third-parties on a not-for-profit basis.[^3] In addition, certain
    channels in the 800 and 900 MHz bands may be used to establish SMR
    service, which provides land mobile communications on a commercial,
    for-profit basis.[^4] On August 6, 2004, the Commission released its
    *Report and Order* in the *800 MHz Rebanding Proceeding* that
    adopted technical and procedural measures designed to address the
    problem of interference to public safety communications in the 800
    MHz band.[^5] As part of its reconfiguration plan, the Commission
    consolidated the Business and Industrial/Land Transportation (B/ILT)
    Pools in the 800 and 900 MHz bands, allowing any eligible B/ILT
    licensee to be licensed on the consolidated channels.[^6] The
    Commission also provided for additional flexibility in the 900 MHz
    band. In particular, the Commission allowed 900 MHz non-SMR
    licensees to initiate Commercial Mobile Radio Service (CMRS)
    operations on their currently authorized spectrum or to assign their
    authorizations to others for CMRS use in an effort to accommodate
    displaced systems during the 800 MHz band reconfiguration
    process.[^7]

3.  Shortly after release of the *800 MHz R&O*, the Commission received
    an exceptionally large number of applications for new 900 MHz
    non-SMR licenses in the B/ILT category. Concerned that so many new
    authorizations might compromise the use of the 900 MHz band for
    facilitating band reconfiguration at 800 MHz, the Bureau released a
    Public Notice on September 17, 2004, imposing a "freeze" on the
    acceptance of applications for new 900 MHz licenses as of the date
    of the Public Notice, until further notice.[^8] The Bureau noted
    that it would continue to accept applications for modifications of
    existing facilities, assignment of a license, or transfer of control
    of a license. These applications, however, would be subject to
    existing requirements for showings of eligibility, loading, and
    other requirements of the Commission's rules.[^9] The Bureau also
    stated that applicants would have recourse to the waiver provisions
    of the Commission's rules.[^10]

4.  On February 16, 2005, the Commission released a *Notice of Proposed
    Rulemaking and Memorandum Opinion and Order* proposing to permit
    flexible use of remaining 900 MHz "white space" and to adopt a
    geographic area licensing scheme for licensing the spectrum.[^11] In
    the *900 MHz MO&O*, the Commission affirmed the Bureau's decision to
    suspend the acceptance of applications for new 900 MHz non-SMR
    licenses as of the release date of the *Freeze Public Notice*.[^12]
    The Commission found it appropriate and necessary to suspend new 900
    MHz applications in the B/ILT category Pools because of the
    fundamental changes it was proposing in the service areas and
    channel blocks for future licensees in this service,[^13] but
    indicated it would consider requests for waivers.[^14] In addition,
    the Commission addressed the status of applications filed just prior
    to imposition of the freeze. In particular, the Commission stated
    that "\[w\]e also note that all 900 MHz band applications for new
    licenses which were filed prior to the freeze and are still pending
    will be processed in the normal course."[^15] The Commission
    continued, "\[w\]e emphasize, however, that each pending application
    will be subject to strict scrutiny, especially with respect to
    eligibility and channel loading requirements, and defective
    applications will be dismissed."[^16]

5.  *EFL Applications*. EFL filed its 13 applications between August 25,
    2004, and September 9, 2004, as part of the group of applications
    filed prior to the Bureau imposing the freeze on accepting 900 MHz
    applications. EFL's applications proposed non-SMR trunked service in
    the Industrial/Business Pool 900 MHz band. Specifically, EFL
    submitted the following: two applications each proposing 10
    frequency pairs to be loaded with 1,000 mobile units;[^17] nine
    applications each proposing 10 frequency pairs to be loaded with 901
    mobile units;[^18] one application proposing 8 frequency pairs to be
    loaded with 721 mobile units;[^19] and one application proposing 5
    frequency pairs to be loaded with 451 mobile units.[^20] EFL
    therefore submitted applications for a total of 123 frequency pairs
    to be loaded with 11,281 mobile units. The cities in which EFL
    proposed to operate included Newport, Rhode Island; Hartford,
    Connecticut; Manchester, New Hampshire; Minneapolis, Minnesota;
    Milwaukee, Wisconsin; Cincinnati, Ohio; Cleveland, Ohio; Pittsburgh,
    Pennsylvania; St. Louis, Missouri; Kansas City, Missouri;
    Indianapolis, Indiana; Buffalo, New York; and Charlotte, North
    Carolina.

6.  In each of its applications, EFL's statement of eligibility under
    Section 90.617 of the Commission's rules was "\[a\]pplicant will use
    radios for transmission of communications essential to business
    distribution of commodities and services to commercial and non
    commercial entities." Between late October and early November 2004,
    the Division returned each of the applications with a "Notice of
    Return" (Return Notice), directing EFL to provide certain
    information. The Return Notices sought specific information
    regarding each location including: (1) a copy of EFL's local
    business license; (2) the address and telephone number of EFL's
    local business operation; (3) the name of EFL's local manager; (4)
    the number of employees at each location; and (5) the number of
    vehicles at each location to be equipped with radios. The Return
    Notices also requested a copy of EFL's articles of incorporation and
    a list of corporate officers.[^21]

7.  On December 27, 2004, EFL amended each of its applications in
    response to the Division's request. In an attachment to its amended
    application, EFL explained that "\[t\]he business which EFL Realty
    Trust intends to operate cannot be conducted without an
    authorization for the requested channels."[^22] EFL further
    explained that "it would not be prudent for EFL Realty Trust to
    expend funds to obtain a local business license, obtain a local
    facility or telephone number or hire a manager or employees prior to
    securing the requested radio station license."[^23] EFL stated that
    it had not yet obtained any licenses to operate any local
    businesses, did not have any addresses or telephone numbers, and had
    not yet hired any local employees or managers.[^24] After asserting
    that Commission rules do not require an applicant to provide any of
    this requested information, EFL did state that it was amending its
    application to show that 98 percent of its requested mobile units
    were expected to be handheld and the remainder were expected to be
    mounted in vehicles.[^25] EFL did not respond at all to the
    Division's request for a copy of its articles of incorporation and a
    list of corporate officers.

8.  On July 30, 2005, the Division dismissed each of EFL's applications
    as defective under Section 1.934 of the Commission's rules with a
    "Notice of Dismissal" explaining:

    Rule 90.631 requires that trunked channels be assigned on the basis
    of 100 mobile units per channel. Based on our review of the
    information provided, you have not justified the number of channels
    requested. You indicate that you have no current business operation
    in the market nor did you provide any evidence that you were
    establishing an operation justifying the number of channels
    requested. Therefore we are hereby dismissing the application.[^26]

    In response to the dismissals, EFL filed its Application for Review
    on August 29, 2005. EFL argues that the Division erroneously
    required it to "demonstrate an immediate need for 100 mobile units
    per channel" and erroneously required it to justify its need for a
    trunked system authorization.[^27] No parties filed any opposition
    to EFL's Application for Review.

# discussion

9.  *Introduction*. We deny EFL's Application for Review because we
    agree with the Division's determination that EFL has not provided
    information sufficient to justify the number of channels and mobile
    units requested in its applications. EFL primarily argues that
    Commission rules for licensing above 800 MHz require a showing of
    eligibility, but not a showing of justification of need for trunked
    channels for an existing business operation in a certain
    location.[^28] To the contrary, as discussed further below, our
    rules require both a demonstration of eligibility and an initial
    showing that the channels requested will be occupied in conformity
    with our loading standards, whether EFL is applying for channels to
    provide internal communications or to provide not-for-profit service
    to a third party.

10. *Part 90 Channel Loading Rules and Policies*. EFL asserts that the
    Division's dismissal attempts to impose requirements "not provided
    for" by Commission rules[^29] and that the Division has "attempted
    to engraft onto the Commission Rules a non-existent requirement for
    a justification of need."[^30] We disagree.

11. The purpose of the Commission's Part 90 loading rules is to prevent
    warehousing of channels to ensure that spectrum is used in an
    efficient manner.[^31] Specifically, Section 90.627(a) of the
    Commission's rules limits the maximum number of frequency pairs that
    may be assigned at any one time for the operation of a trunked radio
    system to twenty.[^32] Section 90.631(a) of the Commission's rules
    provides that non-SMR trunked systems will be authorized on the
    basis of a loading criterion of 100 mobile stations per channel,
    with mobile stations including vehicular and portable mobile units
    and control stations.[^33] Section 90.631(b) provides that an
    applicant for a non-SMR trunked system must certify that a minimum
    of 70 mobiles for each channel authorized will be placed into
    operation within five (5) years of the initial license grant.[^34]
    Thus, trunked systems are authorized based on a loading level of 100
    mobiles per channel and applicants must certify that they will load
    their systems to at least 70 percent of this level (70 mobiles per
    channel) within five years of their license grant.[^35]

12. The principle that 900 MHz applicants must justify the number of
    channels requested is based on the policies expressed in the
    Commission's rulemakings establishing its loading requirements. From
    the time the Commission first introduced loading standards for
    private land mobile services in 1971,[^36] the measure that the
    Commission has employed in its rules for determining channel usage
    for non-SMR trunked service is the number of transmitters authorized
    for use on the channels.[^37] The Commission adopted loading
    criteria to enable it to set standard levels of channel occupancy,
    rather than examining loading proposals in applications on a
    case-by-case basis, to help ensure efficient use of the
    spectrum.[^38] By 1974, the Commission had developed general rules
    to assist it in determining when an assigned frequency was to be
    treated as occupied, or not occupied, in terms of its capacity to
    serve the requirements of the users in an effective way.[^39] The
    Commission considered a variety of factors including average message
    length, the number of operating units in any given time period, the
    number of times per hour that dispatchers and mobiles originate
    calls, the size of the systems, and the nature of the functions and
    activities of the licensees.[^40] Relying on these factors, the
    Commission designated levels for channel loading on trunked systems
    based on what the Commission believed actual operating conditions
    would demand.[^41]

13. In 1988, the Commission adopted one standard for non-SMR systems
    above 800 MHz. It determined that trunked systems would be
    authorized on the basis of loading 100 mobiles per channel and
    adopted the standard requiring applicants to certify that a minimum
    of 70 mobile units for each channel would be placed into operation
    within five (5) years of the initial grant of the license.[^42] In
    making its decision, the Commission explained that "\[t\]his
    standard will accomplish our objectives of maximizing spectrum
    efficiency and increasing flexibility."[^43] The Commission further
    explained that "\[u\]se of this standard will ensure that a
    substantial level of spectrum efficiency is maintained and that
    licensees have some flexibility in designing their systems."[^44]

14. The Commission has provided examples to demonstrate how it would
    authorize channels based on examination of an applicant's business
    need for channel usage, and stated in its 1971 proceeding, when the
    loading criteria was 90 mobile units per channel, that "\[i\]f a
    user has 20 vehicles equipped with radio, it will be assigned one
    frequency pair, only. If it has 100 such units in use and is
    eligible in the Business Pool, it would be entitled to two pairs,
    but it would not be required to use another channel, and we assume
    that licensees will operate as many mobile units as possible on an
    assigned pair of frequencies." [^45] In a 1974 proceeding, the
    Commission established the distance for co-channel separation for
    trunked systems at 70 miles, regardless of whether the trunked
    facility is located in an urban or suburban area. The Commission
    explained that "\[t\]his is feasible in trunked operations because
    the applicant must make an initial showing that the facilities
    requested will be occupied in conformity with the applicable loading
    criteria."[^46]

15. More recently, the Commission explained that "\[o\]ur loading
    requirements were adopted to serve the public interest by preventing
    valuable spectrum from remaining fallow."[^47] In particular, the
    Commission found that non-SMR 900 MHz Industrial/Land Transportation
    licensees, as opposed to 900 MHz SMR licensees, "do not compete for
    customers and should only apply for enough channels to satisfy their
    actual needs."[^48] The Commission further stated that an
    Industrial/Land Transportation licensee that cannot meet our loading
    requirements, for whatever reason, is essentially warehousing
    spectrum in hopeful anticipation of long term growth of a
    business.[^49]

16. The Bureau relied on Commission loading policy when it dismissed
    multiple licensed system applications for failure to justify the
    number of channels needed. The Bureau's former Public Safety and
    Private Wireless Division (PSPWD) affirmed the dismissal of several
    applications for trunked PLMR community repeaters on 800 MHz
    Business Category Pool frequencies in *Mobilcom Pittsburg, Inc*.
    because Mobilcom failed to demonstrate that its request for 32
    channels would be loaded to a capacity of 3200 mobile units.[^50] In
    denying a consolidated petition seeking reconsideration of the
    dismissal of the applications, PSPWD stated that Section 90.631(a)
    serves the important function of ensuring that non-SMR applicants
    for a multiple-licensed system are not granted more PLMR channels
    than needed for their private internal communication.[^51]
    Similarly, the Bureau's former Public Safety and Critical
    Infrastructure Division (PSCID) granted the National Science and
    Technology Network, Inc. (NSTN) only three channels from its
    application to operate on ten channels on the 470 MHz band in the
    Industrial/Business Pool.[^52] PSCID found that three channels were
    more than adequate for the 181 mobile units NSTN had requested.[^53]
    Importantly, PSCID stated that:

    It is long-standing Commission policy that an applicant for a
    license must justify the number of channels requested. We are not
    required to grant a license applicant ten channels just because the
    applicant had requested this many frequencies. ... The Commission
    does require justification specific as to the need for multiple
    frequencies to assure that an applicant is not licensed for more
    channels than it actually needs.[^54]

17. As PSPWD explained, Section 90.631(a) of our rules serves the
    important function of ensuring that non-SMR applicants are not
    granted more PLMR channels than needed for their systems. The Bureau
    explained this policy in *Viking Dispatch Services, Inc*.[^55] In
    *Viking Dispatch*, Viking Dispatch Services, Inc. (VDS) filed 42
    applications requesting up to 20 non-SMR service channels in the 900
    MHz band in each application. VDS proposed to construct two-way
    mobile communications dispatch systems at various locations in the
    United States and to operate them as a third-party provider. VDS
    also proposed to provide service on a not-for-profit, cost-shared
    basis.[^56] The Bureau, however, found that VDS was not eligible as
    a person or entity providing communications service on a
    not-for-profit, cost-shared basis under the provisions of Section
    90.603(b) of the Commission's Rules.[^57]

18. The Bureau also concluded that VDS had failed to justify
    sufficiently its request for up to twenty channels at various
    locations throughout the country.[^58] Like EFL, VDS had argued that
    no business entity would commit the resources to share a system that
    the Commission had not yet authorized. VDS further contended that it
    had certified each channel would be loaded, that it had five years
    to load the channels under Section 90.631(b) of the Commission's
    rules, and that no other Commission rules required it to provide a
    list of specific users of its proposed service.[^59] In rejecting
    VDS's arguments, the Bureau explained that it is Commission policy
    to request the applicant, which was proposing PLMR third-party
    provider service, to justify or demonstrate a need for the channels
    requested.[^60] The Bureau further explained that "\[t\]he purpose
    of this policy is twofold: (1) to keep third-party providers from
    being licensed for more PLMR channels than they actually need;
    and (2) to assure that the proposed systems are not-for-profit and
    cost-shared. Identifiable participants with existing communications
    needs are the essence of a not-for-profit, cost-shared system."[^61]
    Finally, the Bureau rejected VDS's statements, relying on a general
    market study that VDS was confident that the requested channels
    would be used. The Bureau stated that "we need more than statements
    from the applicant that it is confident that the channels will be
    used and that its analysis is consistent with published growth
    projections for the PLMR service. Taking such action, we believe,
    would undermine our policy of ensuring that the spectrum is used
    efficiently by requiring such requests to be supported by actual,
    documented user requirements."[^62] Accordingly, the Commission's
    rulemakings and case precedent establish the principle that 900 MHz
    applicants must justify the number of channels and mobile units
    requested to ensure the applicant is not licensed for more channels
    that it needs.

19. *Application of Precedent to Requests for Channels for Internal
    Communications Use*. EFL argues that there is no precedent for
    applying the policy set forth in *Viking Dispatch* "to a private
    user which intends to serve only its own communications needs," and
    that "EFL does not propose to share its proposed radio facilities
    with any other person."[^63] We disagree. While the Commission, in
    affirming the Bureau's decision in *Viking Dispatch*, agreed with
    the Bureau that "when internal communications are not envisioned,
    greater scrutiny as to the validity of non-profit status is often
    warranted,"[^64] it in no way held that applications proposing
    internal use systems would face no scrutiny. In fact, the Commission
    has expressly stated that applications for new licenses in the 900
    MHz band that were filed prior to the freeze would be subject to
    strict scrutiny.[^65] Commission precedent set forth above further
    establishes the principle that non-SMR 900 MHz applicants must
    justify the number of channels and mobile units requested, even if
    the applications are for internal communications only.

20. In this case, EFL proffers no documentation that it even exists as a
    business entity or intends to exist as a business entity. EFL's
    argument that it need not supply information about its business is
    unavailing and contrary to the plain language of Section 308(b) of
    the Act, which states that "\[t\]he Commission, at any time after
    the filing of such original application and during the term of any
    such licenses, may require from an applicant or licensee further
    written statements of fact to enable it to determine whether such
    original application should be granted or denied or such license
    revoked."[^66] Rather than provide information about its business or
    proposed operations, EFL merely offers statements that it cannot
    conduct a business without licenses for the requested channels. EFL
    contends that it has identified the user of its licenses -- that is,
    itself -- but it has failed to provide any information about its own
    identity. EFL has also failed to provide any information about how
    it plans to use the requested spectrum.[^67] This approach does not
    ensure that the large number of channels requested will be
    efficiently used, if used at all. This is a particular concern when
    the applicant files applications after the Commission significantly
    modifies its rules to allow 900 MHz non-SMR licensees to initiate
    commercial operations on its currently authorized spectrum or to
    assign its authorizations to others for commercial use, and just
    before the Bureau imposes a freeze on accepting additional 900 MHz
    applications. We also note that favorable action based on this lack
    of information could result in a flood of similar requests. As the
    Division stated, EFL has not provided any evidence that it is
    establishing an operation of any kind that would justify the number
    of channels requested.[^68]

21. Moreover, EFL's few statements regarding its intentions are
    inconsistent. In its applications, EFL indicated that it "will use
    radios for transmission of communications essential to business
    distribution of commodities and services to commercial and
    non-commercial entities," but did not indicate in its eligibility
    statement or elsewhere in its applications that it would use the
    licenses for internal business communications. The statement that
    EFL intends to provide service to commercial entities is easily
    interpreted as intending to receive compensation or to provide
    service as a third-party provider, and EFL did not clarify its
    intent in its response to the Division's request for additional
    information. Only in its Application for Review, after failing to
    provide any information about its business or business operations,
    including the requested articles of incorporation and list of
    corporate officers, and after its applications were dismissed, does
    EFL state that it intends to use the licenses for internal
    communications. EFL, however, does not provide any evidence to
    support this statement. We have an insufficient basis to determine
    whether EFL intends to use the spectrum for profit, on a
    not-for-profit, cost-shared basis,[^69] or to serve its internal
    communications requirements. Even if EFL's choice of business model
    were clear, we find that the Division was correct in its
    determination that EFL has failed to justify the number of channels
    requested in its multiple applications.

22. *Similarly Situated 900 MHz Applications Filed Prior to the Freeze*.
    We also find that the Division's action in dismissing EFL's
    applications is consistent with its past treatment of similarly
    situated applications: the Division required applicants to justify
    the number of channels and mobile units requested in new
    applications that were filed just prior to the Bureau's freeze on
    accepting 900 MHz applications and that claimed eligibility and
    compliance with channel loading requirements. For example, in
    August, 2004, White Eagle Concrete, Inc. (White Eagle) filed a
    non-SMR license application for five 900 MHz trunked frequency
    pairs, and its statement of eligibility under Section 90.617 of the
    Commission's rules was: "\[t\]he applicant is a concrete industry,
    radios will be used for internal communications."[^70] The Division
    returned the application and requested, among other things, a copy
    of its local business license to operate a concrete business in the
    area requested on its application, the number of employees in the
    area requested on its application, the total number of company
    employees, the number of vehicles which would be equipped with
    radios, and a copy of White Eagle's articles of incorporation and a
    list of corporate officers.[^71] White Eagle failed to respond, and
    the Division dismissed its application as defective.[^72] The
    Division sent out virtually identical Return Notices for several
    other applications for non-SMR trunked licenses in the 900 MHz band
    (YU), including a second application for White Eagle also filed on
    August 19, 2004,[^73] an application filed by Ridgewood Investments
    LLC on August 19, 2004, an application filed by Prompto Delivery
    Service LLC on September 8, 2004, and two applications filed by
    Claiborne Distributors, Inc. (Claiborne), one on August 24, 2004,
    and the other on August 25, 2004. Like EFL, Claiborne's statement of
    eligibility under Section 90.617 of the Commission's rules was
    "\[a\]pplicant is in the distribution of commodities and services to
    commercial and noncommercial entities." [^74] None of the applicants
    responded to the requests for additional information and, as a
    result, their applications were dismissed as defective.[^75]

23. Of particular note is an application for a non-SMR trunked license
    in the 900 MHz band filed by Thomas Kurian (Kurian) on September 15,
    2004, two days before the Bureau imposed the freeze on accepting
    applications.[^76] On November 5, 2004, the Division returned the
    application asking for the same information it had requested from
    other applicants regarding Kurian's business plans in San Diego and
    Imperial Counties, California.[^77] On November 8, 2004, Kurian
    responded stating that he did "not yet have a local office or
    employees in either county ... and it would not be reasonable for me
    to take any further steps toward commencing operations before
    obtaining the requested license for a sufficient number of radio
    frequencies."[^78] Kurian further explained that he intended "to
    place 900 mobile units in operation during the term of the license"
    and "to use a mixture of hand-held and vehicular mounted units" but
    he could not state the number of units that would be ultimately
    mounted in vehicles.[^79] Kurian's application was dismissed as of
    November 18, 2004, with the following explanation:

    Rule 90.631 requires that trunked channels be assigned on the basis
    of 100 mobile units per channel. Based on our review of the
    information provided, you have not justified the number of channels
    requested. You do not have a current business operation in the areas
    requested on the application, and are only speculating you may need
    the channels. Therefore, we are hereby dismissing the
    application.[^80]

    The Division dismissed all of these similarly situated applications
    for the same reason it dismissed EFL's application. None of the
    applicants made an initial showing justifying the number of channels
    requested.

24. *Distinction Between Channel Loading and Build-out Requirements*.
    Finally, EFL contends that the Division dismissed its applications
    because EFL failed to demonstrate that it could place 100 mobile
    units in operation immediately upon grant.[^81] EFL argues that
    Section 90.631 of the Commission's rules not only does not require
    an applicant to place 100 mobile units in operation immediately, but
    that the rule section provides a licensee five years within which to
    complete the loading of its system.[^82] EFL argues that a licensee
    of a trunked facility must place the station into operation within
    one year and that Commission rules define "placed in operation" as a
    base station operating with at least two mobile units or one mobile
    unit and one control station.[^83] EFL therefore concludes that it
    would have four more years to reach "a loading of 100 mobile units
    per channel."[^84]

25. We disagree that the Division expressly dismissed EFL's applications
    because it failed to demonstrate it would place 100 mobile units
    immediately into operation upon grant of a license. Rather, the
    Division's decision cited our loading criterion for non-SMR trunked
    systems and stated that EFL had not justified the number of channels
    requested in its applications.[^85] An applicant for a non-SMR 900
    MHz license cannot rely on our construction rules, which apply only
    after license grant, in a manner that allows it to avoid complying
    with our initial channel loading criteria. While the construction
    rules and channel loading requirements work in concert to ensure
    that spectrum is placed in the hands of those who will put it to use
    in a timely and efficient manner, the two sets of rules serve
    different purposes.[^86] Our construction rules set up minimum
    requirements for licensees in establishing the operation and
    construction deadlines for trunked facilities. Our loading
    requirements are intended to identify those applicants that by all
    appearances may intend to warehouse spectrum in anticipation of
    speculative business growth or profit from selling unneeded
    licenses. Accordingly, applicants should only apply for enough
    channels to satisfy their actual needs.

26. *Conclusion*. Section 309(a) of the Communications Act, as amended,
    provides that we must determine on a case-by-case basis whether
    granting an application will serve the public interest.[^87] This is
    particularly true when modifying our licensing rules results in a
    run on spectrum ultimately requiring us to impose a freeze on the
    acceptance of applications. This Commission has a long-standing
    policy of protecting the public interest against speculative
    applications. In addition, because the Commission no longer uses
    loading standards as a trigger for automatic termination of
    channels,[^88] it is particularly important that we review each
    application upfront to determine whether the applicant is intending
    to use the spectrum for an actual need or mere speculation on the
    future growth potential of the spectrum in question.

27. In this case, EFL submitted 13 applications requesting up to ten
    frequency pairs each to be loaded to approximately 100 mobile units
    per channel in 11 different states. EFL filed its applications soon
    after the Commission relaxed its licensing rules to allow 900 MHz
    non-SMR licensees to initiate CMRS operations on their currently
    authorized spectrum or to assign their authorizations to others for
    CMRS use, and just before the Bureau imposed a freeze on accepting
    additional 900 MHz applications in response to the exceptionally
    large number of applications it had received. At the time, the
    Commission cautioned that applications that were pending at the time
    the freeze was imposed would be subject to strict scrutiny,
    especially with respect to eligibility and channel loading
    requirements, and that defective applications would be dismissed.
    EFL has not provided any information in response to a request from
    the Division about its own identity and admits it does not intend to
    start any business unless it receives the requested licenses. Given
    EFL's failure to provide any information about itself or its
    business operations, we find that EFL has not made a sufficient
    showing to justify the number of channels and mobile units requested
    in its applications, and therefore conclude that granting the
    applications would not serve the public interest. Accordingly, we
    deny EFL's Application for Review.

# ordering clause

28. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 5(c)(5),
    and 303(r) of the Communications Act, as amended, 47 U.S.C. §§
    154(i), 155(c )(5), 303(r), and Section 1.115 of the Commission's
    Rules, 47 C.F.R. § 1.115, the Application for Review filed by EFL
    Realty Trust on August 29, 2005, is DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: Application for Review, filed by EFL Realty Trust (Aug. 29, 2005).

[^2]: 47 C.F.R. § 90.600 *et seq*. The 896-901/935-940 MHz bands are
    known collectively as the 900 MHz band.

[^3]: In the Matter of Applications for LMR Systems, Inc., 14 FCC Rcd
    17227, 17235 ¶ 15 (PSPWD 1999) (LMR Systems) (citing 47 C.F.R.
    §§ 90.603(a) and (b)); *see* 47 C.F.R. § 90.617(c) (listing the 900
    MHz Industrial/Business Pool channels and explaining that SMR
    systems will not be authorized on these frequencies).

[^4]: LMR Systems, 14 FCC Rcd at 17235 ¶ 15 (citing 47 C.F.R.
    § 90.603(c); *see* § 90.617(f) (listing the SMR category 900 MHz
    band channels).

[^5]: In the Matter of Improving Public Safety Communications in the 800
    MHz Band, *Report and Order, Fifth Report and Order, Fourth
    Memorandum Opinion and Order, and Order*, 19 FCC Rcd 14969 (2004)
    (*800 MHz R&O*).

[^6]: 800 MHz R&O, 19 FCC Rcd at 15126 ¶ 334.

[^7]: 800 MHz R&O, 19 FCC Rcd at 15127 ¶¶ 336, 337. The Commission
    reasoned that because it permitted CMRS use of PLMR frequencies in
    the 800 MHz land mobile band, similar rules should apply in the 900
    MHz land mobile spectrum, in the interest of regulatory symmetry.
    *Id*. at 15127 ¶ 335. The Commission also explained that to provide
    "green space" necessary to effect reconfiguration of the 800 MHz
    band, some operations may need to shift from the 800 MHz to the 900
    MHz band, a factor that further merited complementary CMRS rules in
    both bands. *Id*. at 15127 ¶ 336.

[^8]: Wireless Telecommunications Bureau Freezes Applications in the 900
    MHz Band, *Public Notice*, 19 FCC Rcd 18277 (WTB 2004) (*Freeze
    Public Notice*).

[^9]: *Id*. at 18278 n.8.

[^10]: *Id*. at 18278 n.8.

[^11]: In the Matter of 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,
    *Notice of Proposed Rulemaking and Memorandum Opinion and Order*,
    20 FCC Rcd 3814 (2005) (*900 MHz NPRM & MO&O*).

[^12]: *900 MHz NPRM & MO&O*, 20 FCC Rcd at 3836 ¶ 67.

[^13]: *900 MHz NPRM & MO&O*, 20 FCC Rcd at 3836 ¶ 66. The Commission
    further explained that allowing applications might limit the
    effectiveness of the decisions ultimately made in the context of the
    proceeding proposing flexible use and geographic area licensing for
    900 MHz spectrum, and that its action was consistent with the
    Commission's past practices. *Id*. (citing Implementation of
    Sections 3(n) and 332 of the Communications Act -- Regulatory
    Treatment of Mobile Services, *CMRS Third Report and Order*, 9 FCC
    Rcd 7988, 8047-48 ¶ 108 (1994)).

[^14]: *900 MHz NPRM & MO&O*, 20 FCC Rcd at 3836 ¶ 67.

[^15]: *900 MHz NPRM & MO&O*, 20 FCC Rcd at 3836 ¶ 67.

[^16]: *900 MHz NPRM & MO&O*, 20 FCC Rcd at 3836 ¶ 67.

[^17]: The applications were FCC File Nos. 0001852833 and 0001855236.

[^18]: The applications were FCC File Nos. 0001856946, 0001863513,
    0001863518, 0001864169, 0001864170, 0001864172, 0001864361,
    0001865507, and 0001865743.

[^19]: The application was FCC File No. 0001863675.

[^20]: The application was FCC File No. 0001864174.

[^21]: *See, e.g.,* Notice of Return, Reference No. 3108998 (Newport,
    Rhode Island Application FCC File No. 0001852833) (Oct. 29, 2004).

[^22]: *See, e.g.,* FCC File No. 0001852833, Att. at 1 (Letter from E.F.
    Leonard, Officer, EFL Realty Trust, to FCC (Dec. 20, 2004)).

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

[^24]: *Id.* at 1.

[^25]: *Id.* at 1 (EFL amended Item 25 of FCC Form 601, Schedule D).

[^26]: *See, e.g.,* Notice of Dismissal, Reference No. 3645066 (Newport,
    Rhode Island Application File No. 0001852833) (July 30, 2005)
    (*E**FL Dismissal Notice*).

[^27]: Application for Review at 1.

[^28]: Application for Review at 6.

[^29]: Application for Review at 3.

[^30]: Application for Review at 6.

[^31]: In the Matter of Requests of Viking Dispatch Services, Inc. for
    Rule Waiver and Associated Applications, *Order*, 10 FCC Rcd 12769,
    12771 ¶ 11 (WTB 1995).

[^32]: 47 C.F.R. § 90.627(a).

[^33]: 47 C.F.R. § 90.631(a).

[^34]: 47 C.F.R. § 90.631(b).

[^35]: In the Matter of Amendment of Section 90.631 of the Commission's
    Rules and Regulations Concerning Loading Requirements for 900 MHz
    Trunked SMR Stations, *Notice of Proposed Rulemaking*, 7 FCC Rcd
    1400, 1400 ¶ 2 (1992) (*1992 900 MHz NPRM*).

[^36]: Loading standards were introduced in Docket No. 18621, when the
    Commission made specific frequencies available in the 470-512 MHz
    band for assignment for private land mobile services. In the Matter
    of Amendment of Part 90, Subparts M and S, of the Commission's
    Rules, *Report and Order*, 3 FCC Rcd 1838, 1844 ¶ 51 (1988)
    (*Subparts M and S R&O*) (citing In the Matter of Amendment of Parts
    21, 89, 91 and 93 of the Rules to Reflect the Availability of Land
    Mobile Channels in the 470-512 MHz Band in the 10 Largest Urbanized
    Areas of the United States, *First Report and Order*, Docket
    No. 18261, 23 F.C.C. 2d 325 (1970); *id*., *Second Report and
    Order*, 30 F.C.C. 2d 221 (1971) (*D**ocket No. 18261 Second R&O*)).

[^37]: *See* In the Matter of Amendment of Part 90 of the Commission's
    Rules to Release Spectrum in the 806-821/851-866 MHz Bands and to
    Adopt Rules and Regulations Which Govern Their Use; Amendment of
    Part 90 of the Commission's Rules to Facilitate Authorization of
    Wide-Area Mobile Radio Communications Systems; An Inquiry Concerning
    the Multiple Licensing of 800 MHz Radio Systems ('Community
    Repeaters'); Amendment of Section 90.385(c) of the Commission's
    Rules to Allow Transmission of Non-Voice Signals at 800 MHz,
    *Memorandum Opinion and Order*, PR Docket No. 79-191, 95 F.C.C. 2d
    477, 483-84 ¶ 11 (1983) (in deciding that control stations will be
    counted to determine the loading level of trunked systems, stating
    that "\[t\]he measure of channel usage we employ in our rules is the
    number of transmitters authorized for use on the channels").

[^38]: *Subparts M and S R&O*, 3 FCC Rcd at 1844 ¶ 51. The Commission
    adopted the 50/70/90 "units-in-use" channel loading criteria. Docket
    No. 18261 Second R&O, 30 F.C.C. 2d at 227 ¶ 14. The Commission
    adopted loading standards also to provide potential users with a
    means to determine channel availability and to provide a means to
    determine whether a licensee of conventional channels was entitled
    to shared or exclusive use of a channel. *Subparts M and S R&O*, 3
    FCC Rcd at 1844 ¶ 51.

[^39]: In the Matter of and Inquiry Relative to the Future Use of the
    Frequency Band 806-960 MHz; and Amendment of Parts 2, 18, 21, 73,
    74, 89, 91 and 93 of the Rules Relative to Operations in the Land
    Mobile Service Between 806 and 960 MHz, *Second Report and Order*,
    Docket No. 18262, 46 F.C.C. 2d 752, 778 ¶ 89 (1974) (*Docket
    No. 18262 Second R&O*).

[^40]: *Docket No. 18262 Second R&O*, 46 F.C.C. 2d at 777 ¶ 85;
    *Subparts M and S R&O*, 3 FCC Rcd at 1844 ¶ 51. For example, based
    on these factors, the Commission had determined that 50 vehicular
    mobile units per channel in the Police Radio Service was a
    reasonable and realistic criterion to apply in licensing stations in
    that service. *Docket No. 18262 Second R&O*, 46 F.C.C. 2d at 777
    ¶ 85. The Commission contrasted that to the Business Radio Service,
    where frequencies allocated were intended to be shared more
    intensively because they are designated to serve a much broader
    group of eligibles, and noted there were inherent differences in the
    nature of the communications of businessmen and police departments.
    *Id*. Consequently, the Commission determined that higher loading
    standards should be employed for the Business Radio Service, with
    each frequency or channel licensed to serve approximately 90
    mobiles. *Id*.

[^41]: *Docket No. 18262 Second R&O*, 46 F.C.C. 2d at 778-79 ¶ 92-93. At
    the time, these loading levels were considered to be interim loading
    parameters, which, if necessary, would be modified to conform with
    the needs of actual operating conditions. *Id*.

[^42]: *Subparts M and S R&O*, 3 FCC Rcd at 1845 ¶ 64. Prior to adopting
    the Subpart M standard, new trunked systems under Subpart S were
    required to be loaded to 60 mobile units per channel within three
    (3) years and 80 mobile units per channel within five (5) years of
    authorization. *Id*. at 1844 ¶ 52 (citing PR Docket No. 79-191
    Second R&O, 90 F.C.C. 2d 1281 (1982); PR Docket No. 79-191 MO&O, 95
    F.C.C. 2d 477 (1971)).

[^43]: *Subparts M and S R&O*, 3 FCC Rcd at 1845 ¶ 64.

[^44]: *Subparts M and S R&O*, 3 FCC Rcd at 1845 ¶ 64.

[^45]: In the Matter of Amendment of Parts 21, 89, 91 and 93 of the
    Rules to Reflect the Availability of land Mobile Channels in the
    470-512 MHz Band in the 10 Largest Urbanized Areas of the United
    States, *Notice of Further Proposed Rulemaking*, Docket No. 18261,
    27 F.C.C. 2d 371, 376 ¶ 14 (1971). In Appendix C to *Docket
    No. 18261 Second R&O*, the Commission also provided a case example
    of how a company that conducts parcel delivery service in Jersey
    City, New Jersey would apply for radio facilities in the 470-512 MHz
    band in the Business Radio Service, and how that application would
    be processed. *Docket No. 18261 Second R&O*, 30 F.C.C. 2d at 278,
    App. C. In the example, the company has 17 trucks in operation and 3
    more on order, and all would be in operation within less than 8
    months. *Id*. The channel loading for Business Service, at that
    time, had been established at 90 vehicular units per channel. *Id*.
    Thus, the company was informed that it could expect to share with
    other licensees, within the 40-mile radius, who, in addition to the
    company's 20 mobiles, had a total of 70 vehicular units in actual
    operation. *Id*.

[^46]: *Docket No. 18262 Second R&O*, 46 F.C.C. 2d at 775 ¶ 79.

[^47]: *1992 900 MHz NPRM*, 7 FCC Rcd at 1401 ¶ 8.

[^48]: In the Matter of Amendment of Section 90.631 of the Commission's
    Rules and Regulations Concerning Loading Requirements for 900 MHz
    Trunked SMR Stations, *Report and Order*, 7 FCC Rcd 4914, 4914 ¶ 11
    (1992) (*1992 900 MHz R&O*); *1**992 900 MHz NPRM*, 7 FCC Rcd at
    1401 ¶ 6 n.10.

[^49]: *1992 900 MHz NPRM*, 7 FCC Rcd at 1401 ¶ 6 n.10. The Commission
    made these statements in the context of its rulemaking where it
    granted a two-year renewal period for 900 MHz SMR licensees that had
    not met the loading requirements of Section 90.631(b) by the end of
    their initial five-year license term. Several commenters urged the
    Commission to grant similar relief to the Industrial/Land
    Transportation Pool, but the Commission declined to do so, finding
    the competitive position for 900 MHz Industrial/Land Transportation
    and 900 MHz SMR systems with respect to other providers vastly
    different. *1992 900 MHz R&O*, 7 FCC Rcd at 4914 ¶ 11; *1992 900 MHz
    NPRM*, 7 FCC Rcd at 1401 ¶ 6 n.10.

[^50]: In the Matter of Mobilcom Pittsburg, Inc., *Memorandum Opinion
    and Order*, 18 FCC Rcd 23053 (PSPWD 2003) (*Mobilcom Pittsburg,
    Inc.*).

[^51]: Mobilcom, 18 FCC Rcd at 23058 ¶ 12 (citing In the Matter of
    Applications of Viking Dispatch Services, Inc. For Up To Twenty (20)
    900 MHz Private Land Mobile Service Channels at Various Locations,
    *Order*, 11 FCC Rcd 6685, 6693 ¶ 17 (WTB 1996) (*Viking Dispatch*)).

[^52]: In the Matter of Application of National Science and Technology
    Network For a 470 MHz Trunked Industrial/Business Station License at
    Rancho Palos Verdes, California, *Order on Reconsideration*, 19 FCC
    Rcd 23134 (PSCID 2004) (*NSTN*).

[^53]: *NSTN*, 19 FCC Rcd at 23136 ¶ 6.

[^54]: *NSTN*, 19 FCC Rcd at 23135-36 ¶ 5.

[^55]: *Viking Dispatch*, 11 FCC Rcd 6685 (WTB 1996).

[^56]: *Viking Dispatch*, 11 FCC Rcd at 6685 ¶ 1.

[^57]: *Viking Dispatch*, 11 FCC Rcd at 6692 ¶ 14. In reaching that
    conclusion, the Bureau made several findings regarding VDS,
    including VDS did not intend to use the system itself; VDS planned
    to keep any profit from the sale of the systems; for all other
    business purposes, VDS was a for-profit business; VDS had not
    provided a sufficient explanation as to why it would undertake to
    construct these systems, involving large amounts of capital, to make
    them available on a non-profit, cost-shared basis; and VDS failed to
    identify any particular shared system participants. *Id*.

[^58]: *Viking Dispatch*, 11 FCC Rcd at 6694 ¶ 19.

[^59]: *Viking Dispatch*, 11 FCC Rcd at 6692-93 ¶ 15.

[^60]: *Viking Dispatch*, 11 FCC Rcd at 6693 ¶ 17. This justification is
    usually demonstrated by disclosing the names and phone numbers of
    eligible users who wish to use the system. *Id*.

[^61]: *V**iking Dispatch*, 11 FCC Rcd at 6693 ¶ 17.

[^62]: *Viking Dispatch*, 11 FCC Rcd at 6694 ¶ 18.

[^63]: Application for Review at 6. EFL asserts that *Viking Dispatch*
    is the only relevant case to this proceeding and, according to EFL,
    it is distinguishable from the instant matter. *Id*. at 5-6.
    According to EFL, the issue in *Viking Dispatch* was the identity of
    the shared system participants and EFL states in its Application for
    Review that in this case "\[t\]he proposed user, EFL, has been
    identified to the Commission and has requested authorization for 100
    mobile units per channel for its sole use." *Id*. at 6.

[^64]: In the Matter of Viking Dispatch Services, Inc. Applications for
    Up To Twenty 900 MHz Private Land Mobile Radio Service Channels at
    Various Locations, *Memorandum Opinion and Order*, 14 FCC Rcd 18814,
    18818 ¶ 7 (1999).

[^65]: *900 MHz NPRM & MO&O*, 20 FCC Rcd at 3836 ¶ 67.

[^66]: 47 U.S.C. § 308(b).

[^67]: Not only did EFL fail to provide any information on its local
    business operations, it failed to respond to the Division's request
    for a copy of its articles of incorporation and a list of corporate
    officers. EFL has not provided any information except to essentially
    state that it will not begin to build a business until it has
    licenses to operate in 11 states on 123 channels to be loaded with
    11,281 mobile units. *See supra* text accompanying notes 22-24.

[^68]: We also find that the lack of documentation that it exists as a
    business entity brings into question EFL's eligibility to hold the
    licenses it has requested. The only step EFL has apparently taken in
    terms of operating is to seek the licenses at issue in this
    proceeding. Because we independently find that EFL has not made a
    sufficient showing to justify the number of channels and mobile
    units requested, we decline to reach the question of EFL's
    eligibility in this proceeding.

[^69]: The Commission has determined that where a system is used only to
    serve the licensee's internal communications requirements rather
    than offered with the intent of receiving compensation, the licensee
    is not providing service "for profit." *Viking Dispatch*, 11 FCC Rcd
    at 6691 ¶ 13 (citing Implementation of Sections 3(n) and 332 of the
    Communications Act -- Regulatory Treatment of Mobile Services,
    *Second Report and Order*, 9 FCC Rcd 1411, 1428 (1994)). The
    Commission has also recognized that legitimate cost-sharing
    arrangements that allow radio users to combine resources to meet
    compatible needs for specialized internal communications facilities
    are not "for-profit." *Id*. (citing *id*. at 1430).

[^70]: FCC File No. 0001845733, filed by White Eagle Concrete Inc.
    (Aug. 19, 2004).

[^71]: FCC File No. 0001845733, Notice of Return, Reference No. 3176204
    (Dec. 3, 2004).

[^72]: FCC File No. 0001845733, Notice of Dismissal, Reference
    No. 3329361 (Feb. 22, 2005). The Notice stated that "\[t\]he
    application was not amended within 60 days of the date shown on the
    Notice of Application Return letter; therefore, this application is
    hereby dismissed." *Id*.

[^73]: FCC File No. 0001845737, filed by White Eagle Concrete Inc.
    (Aug. 19, 2004) (providing a statement of eligibility that "\[t\]he
    applicant is a concrete industry, radios will be used for internal
    communications." The request for additional information was the same
    as that requested in White Eagle's application File No. 0001845733.
    Notice of Return, Reference No. 3176205 (Dec. 3, 2004).

[^74]: FCC File No. 00018446344, filed by Ridgewood Investments LLC
    (Aug. 19, 2004) (providing a statement of eligibility under Section
    90.617 as "\[a\]pplicant is in the property management business");
    FCC File No. 0001864802, filed by Prompto Delivery Service LLC
    (Sept. 8, 2004) (providing a statement of eligibility under Section
    90.617 as "\[a\]pplicant delivers goods and provides other services
    to customers"); FCC File No. 0001851118, filed by Claiborne
    Distributors Inc. (Aug. 24, 2004); FCC File No. 0001852601, filed by
    Claiborne Distributors Inc. (Aug. 25, 2004). The Return Notices for
    these applications requested the following: a copy of the
    applicant's local business license to operate a business; the
    address and telephone number of its business operation; the name of
    its local manager; the number of employees; the number of vehicles
    that would be equipped with radios; as well as a copy of the
    applicant's articles of incorporation and list of corporate
    officers. Ridgewood Notice of Return, Reference No. 3118687 (Nov. 3,
    2004); Prompto Notice of Return, Reference No. 3118686 (Nov. 3,
    2004); Claiborne Notice of Return, Reference No. 3121960 (Nov. 5,
    2004); and Claiborne Notice of Return, Reference No. 3108997
    (Oct. 29, 2004).

[^75]: The Notices of Dismissal stated that "\[t\]he application was not
    amended within 60 days of the date shown on the Notice of
    Application Return letter; therefore, this application is hereby
    dismissed." FCC File No. 0001845737, filed by White Eagle Concrete
    Inc., dismissed on February 19, 2005, Notice of Dismissal, Reference
    No. 3329362 (Feb. 22, 2005); FCC File No. 00018446344, filed by
    Ridgewood Investments LLC, dismissed January 22, 2005, Notice of
    Dismissal, Reference No. 3271623 (Jan. 24, 2005); FCC File
    No. 0001864802, filed by Prompto Delivery Service LLC, dismissed
    January 22, 2005, Notice of Dismissal, Reference No. 3271622
    (Jan. 24, 2005);. FCC File No. 0001851118, filed by Claiborne
    Distributors Inc., dismissed January 22, 2005, Notice of Dismissal,
    Reference No. 3271617 (Jan. 24, 2005); FCC File No. 0001852601,
    filed by Claiborne Distributors Inc., dismissed January 15, 2005,
    Notice of Dismissal, Reference No. 3260637 (Jan. 18, 2005).

[^76]: FCC File No. 0001872243, filed by Thomas K. Kurian (Sept. 15,
    2004).

[^77]: FCC File No. 0001872243, Notice of Return, Reference No. 3121961
    (Nov. 5, 2004).

[^78]: FCC File No. 0001872243, Letter from Thomas K. Kurian to FCC,
    Gettysburg, PA (Nov. 8, 2004).

[^79]: *Id*.

[^80]: FCC File No. 0001872243, Notice of Dismissal, Reference
    No. 3150219 (Nov. 19, 2004).

[^81]: Application for Review at 3.

[^82]: Application for Review at 3-4.

[^83]: Application for Review at 5 (citing 47 C.F.R. § 90.631(f)).

[^84]: Application for Review at 5.

[^85]: EFL Dismissal Notice at 1.

[^86]: Under our construction rules for trunked systems, Section
    90.631(f) provides that "a base station is not considered to be
    placed in operation unless at least two associated mobile stations,
    or one control station and one mobile station, are also placed in
    operation," 47 C.F.R. § 90.631(f), and licensees must complete
    construction within one year. *Id*. § 90.631(e). Under our loading
    requirements, trunked systems are authorized based on a loading
    level of 100 mobiles per channel and applicants must certify that
    they will load their systems to at least 70 mobiles per channel
    within five years of their license grant. *Id*. §§ 90.631(a) and
    (b). Section 90.127 of our rules also provides that each application
    must limit its request for mobile transmitters to those installed
    immediately after authorization and to those for which purchase
    orders have been signed and which will be in use within eight months
    of the authorization date. *Id*. § 90.127(b)(1) and (2). The
    Commission previously explained that the purpose for establishing
    the rule regarding mobile transmitter counts, like other loading
    requirements, is to prevent spectrum from lying fallow. *PR Docket
    No. 79-191 Second R&O*, 90 F.C.C. 2d at 1284 ¶ 8.

[^87]: 47 U.S.C. § 309(a).

[^88]: The Commission determined that unused channels could be more
    efficiently re-assigned to licensees who needed them through
    marketplace transactions. *Subparts M and S R&O*, 3 FCC Rcd at 1846
    ¶¶ 66-67.