Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Numbers D125581 and     |
|                                  | * | D133075                      |
| Telemetron, Inc.                 | ) |                              |
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| Applications for Private Land    | * |                              |
| Mobile Radio                     |   |                              |
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| Services Licenses in the 218-219 | * |                              |
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| Requests for Waivers of Sections | * |                              |
| 90.127(b) and                    |   |                              |
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| 90.155(a) of the Commission's    | * |                              |
| Rules                            | ) |                              |
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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 applications[^1] and waiver requests[^2] filed by
    Telemetron, Inc. (Telemetron) seeking authority to provide vehicle
    tracking services by means of private land mobile radio (PLMR)
    systems operating in the 219-219 MHz band on a secondary basis
    pursuant to Part 90 of the Commission's Rules. For the reasons
    stated below, we deny Telemetron's waiver requests and dismiss its
    pending applications.

# BACKGROUND

2.  Telemetron proposes to construct and operate systems on a nationwide
    basis to serve businesses that need to track fleets of vehicles. The
    systems Telemetron 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.[^3]

3.  Because Telemetron'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.[^4] 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 Telemetron's applications -- and the 1427-1435 MHz band
    only for telemetering purposes.[^5] In addition, the portion of the
    band between 218 and 219 MHz is allocated on a primary basis to the
    218-219 MHz Service.[^6]

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.[^7] 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,[^8] and, as Telemetron observes, there is only
    limited use of the 218-219 MHz Service at the present time.[^9]

# DISCUSSION

5.  Telemetron'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.[^10] 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. [^11] We find that
    Telemetron has met neither standard.

6.  *Underlying Purpose*. We find that Telemetron'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."[^12] 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.[^13] Accordingly, we find that application of the
    limitation in Section 90.259 to Telemetron's proposal furthers the
    Commission's intent.

7.  In addition, we reject Telemetron's contention that its applications
    are 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.[^14] We find the instant applications readily distinguishable
    in that they propose 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.[^15] 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.[^16] 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 Telemetron 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
    Telemetron'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.[^17] We
    are concerned that Telemetron's request is devoid of a mechanism or
    plan by which Telemetron 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
    Telemetron's proposal could have an adverse effect on the rapid
    development and 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,[^18] incumbent licensees in the 31 GHz band were
    accommodated in a spectrum sharing and segmentation plan,[^19] but
    no new licensing of 31 GHz services -- either on a primary or
    secondary basis -- was allowed.[^20] 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."[^21] 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
    Telemetron that the 218-219 MHz proceeding did not affect such
    licensing.[^22] Because stations licensed on a secondary basis, by
    definition, may not cause harmful interference to stations of
    primary services,[^23] 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 Telemetron's proposal is
    distinguishable from the Itron application in that Itron proposed to
    use the frequencies for telemetering purposes, while Telemetron
    proposes vehicle tracking services. In this regard, we find that
    Telemetron's proposal is similar to the more recently denied
    application and waiver request filed by Technology for
    Communications International (TCI) to provide a nationwide tracking
    and messaging service for the commercial trucking industry on high
    seas public coast frequencies.[^24] Telemetron 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
    Telemetron proposes.[^25] TCI made a similar argument, which we
    rejected.[^26] We noted that this technology can be deployed in a
    number of services that the Commission licenses.[^27] For example,
    the Location and Monitoring Service (LMS) supports such
    operations,[^28] and at least one 218-219 MHz Service licensee is
    developing a vehicle tracking service.[^29] In addition, as noted
    earlier, Telemetron'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 Telemetron 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*. Telemetron has not made any showing of
    unique circumstances justifying grant of its application. Indeed,
    Telemetron'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 Telemetron 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.[^30] Thus, we
    believe that Telemetron has reasonable alternatives under the
    Commission's Rules that do not require a waiver. In addition,
    Telemetron has not described how, or even whether, it has attempted
    to obtain licenses in any of these services, either by initial
    licensing or through partitioning and disaggregation. Consequently,
    we cannot conclude that there are no reasonable alternatives to
    Telemetron's proposal.

# CONCLUSION

12. For the foregoing reasons, we conclude that grant of Telemetron's
    proposed vehicle location system on a nationwide basis 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
    Telemetron 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 requests filed by Telemetron, Inc., on April 27, 1999 and
    June 11, 1999, ARE DENIED.

14. IT IS FURTHER ORDERED that the applications of Telemetron, Inc. to
    operate a nationwide private land mobile system on a secondary basis
    in the 218-219 MHz band, FCC File Nos. D125581 and D133075, ARE
    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]: Telemetron, Inc. Private Land Mobile Radio Services Application
    for Telemetry License In the 218-219 MHz Band, filed April 27, 1999,
    and Telemetron, Inc. Private Land Mobile Radio Services Application
    for Telemetry License In the 218-219 MHz Band, filed June 11, 1999,
    and supplemented December 8, 1999 (collectively, Telemetron
    Applications) at Exhibit I, p. 1. Although Telemetron's second
    application (as amended), for a nationwide license, would appear to
    encompass its pending application in the Los Angeles area, it has
    not requested withdrawal of its pending Los Angeles application.
    Accordingly, we consider both applications in this *Order*.

[^2]: Petition of Telemetron, Inc. for Waiver of Sections 90.127(b) and
    90.155(a) of the Commission's Rules to Telemetron to Provide a
    Vehicle Tracking Service in the Los Angeles Metropolitan Statistical
    Area, filed April 27, 1999, and Petition of Telemetron Inc. for
    Waiver of Sections 90.127(b) and 90.155(a) of the Commission's
    Rules, filed June 11, 1999 (collectively, Telemetron Waiver
    Petitions).

[^3]: Telemetron Applications at Exhibit I, p. 1.

[^4]: Specifically, Telemetron 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.

[^5]: 47 C.F.R. §§ 90.35(d)(55), 90.259.

[^6]: 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*).

[^7]: 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,
    at ¶¶ 1, 14 (rel. Sept. 10, 1999) (*218-219 MHz Service Order*).

[^8]: *Id.* at ¶ 14.

[^9]: Telemetron Applications, Exhibit I at 2.

[^10]: 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. Telemetron 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 Telemetron 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 Telemetron's proposed operations do not come within the
    definition of telemetering, and therefore require a waiver of
    Section 90.259. In addition, Telemetron 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*
    Telemetron Waiver Petitions 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).

[^11]: 47 C.F.R. § 1.925(b)(3).

[^12]: 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).

[^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, *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
    Telemetron contends is not an issue since the 218-219 MHz band was
    allocated on a primary basis to the 218-219 MHz Service. Telemetron
    Applications, Exhibit I at 6. We note, however, that Telemetron has
    not shown through engineering studies how its proposed systems would
    protect current and future licensees in the band. Indeed, given
    Telemetron'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 Telemetron does not
    yet have a design or plan for preventing harmful interference to
    primary users. *See* Telemetron Waiver Petitions at 3. Thus, we
    believe that the concerns underlying the exclusion of vehicle
    tracking services from the 216-220 MHz band remain relevant to
    Telemetron's request.

[^14]: Telemetron Applications, Exhibit I at 1.

[^15]: *218-219 MHz Service Order* at ¶ 1.

[^16]: *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.

[^17]: Teledesic Corporation, *Order and Authorization*, 12 FCC Rcd
    3154, 3162 n.23 (IB 1997).

[^18]: 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).

[^19]: *See generally id.* at 12581 ¶ 79.

[^20]: *Id.* at 12590 ¶ 104.

[^21]: *Id.* at 12588 ¶ 98.

[^22]: Telemetron Applications, Exhibit I at 3.

[^23]: 47 C.F.R. § 2.104(d)(4)(i).

[^24]: *See* Technology for Communications International, *Order*, DA
    99-2015 (WTB PSPWD rel. Oct. 1, 1999) (*TCI Order*).

[^25]: Telemetron Applications, 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)).

[^26]: *TCI Order* at ¶ 9.

[^27]: *Id.*

[^28]: *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).

[^29]: *See* Community Teleplay, Inc. Comments in WT Docket No 98-169
    (filed Oct. 30, 1998).

[^30]: *See supra* notes 27-29 and accompanying text.