Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | FCC File No. 0001030390      |
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| PROGRESS ENERGY SERVICE          | ** |                              |
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| COMPANY LLC                      | *  |                              |
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| For a 900 MHz Trunked            | ** |                              |
| Industrial/Land Transportation   |    |                              |
| Station License in North         | *  |                              |
| Carolina                         | *) |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: February 27, 2004 Released: March 4, 2004**

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

1.  *Introduction.* On January 7, 2003, UTC Spectrum Services (UTC)
    filed a request for reconsideration (Request)[^1] of the December
    12, 2002 action by the former Public Safety and Private Wireless
    Division,[^2] Licensing and Technical Analysis Branch (Branch)
    dismissing the above-captioned application submitted by Progress
    Energy Service Company LLC (Progress).[^3] UTC, which was the
    frequency coordinator for this application, asked that the dismissal
    be reversed and the application reinstated.[^4] For the reasons set
    forth below, we grant the Request in part and deny it in part.
    Specifically, we grant the Request and reinstate the application,
    except with respect to frequency pair 900/939.950 MHz. With respect
    to that frequency, we affirm the Branch's action, because the
    proposed use set forth in the application does not comply with
    Section 90.621(b)(4) of the Commission's Rules.[^5]

2.  *Background.* On September 17, 2002, Progress filed an application
    to operate a new station in the 900 MHz band at various locations in
    North Carolina for the purpose of coordinating power company
    activities.[^6] On December 13, 2002, the Branch dismissed the
    application because operations on one of the requested frequency
    pairs (900/939.950 MHz) would be less than fifty-five miles (88 km)
    from the transmitter site of co-channel Stations WPJT468, WPJT477,
    WPJT541, WPJT542, WPJT550, WPJT555, WPJT934, WPJT935, WPJU352,
    WPJW454, WPJW680, and WPJK272.[^7] The Branch stated that Section
    90.621(b)(4) of the Rules requires stations desiring to operate at
    distances less than fifty-five miles from co-channel facilities to
    submit a waiver request of the minimum separation requirement.[^8]
    Because the application did not include such a request, the Branch
    dismissed it as defective.[^9] UTC then filed its Request seeking
    reconsideration of that decision.

3.  *Discussion.* In the Request, UTC submits that the twelve stations
    to which the proposed facility would be short spaced on frequency
    pair 900/939.950 MHz are all licensed to Carolina Power and Light
    Company (Carolina), a subsidiary of Progress.[^10] In UTC's opinion,
    the parent-subsidiary relationship between Progress and Carolina
    negates any necessity for a waiver of Section 90.621 of the Rules.
    We disagree. Whether Progress is the parent or the subsidiary, both
    it and Carolina are two different licensing entities with two
    separate communications systems each required to meet the criteria
    of Section 90.621(b)(4). This rule does not authorize exceptions to
    the separation requirements for a subsidiary or parent company if
    their facilities are short-spaced to one another.[^11] Thus, as an
    applicant seeking to operate on 900/939.950 MHz at a distance less
    than prescribed in Section 90.621(b)(4), Progress must request a
    waiver with its application.[^12] In the alternative, under Section
    90.621(b)(5) of the Commission's Rules,[^13] the applicant may
    submit with its application letters of concurrence from each
    co-channel licensee within the specified separation between their
    systems.[^14] Each co-channel licensee must certify that its system
    has been constructed and fully operational and indicate that it will
    accept (as will the applicant) any interference caused by the
    reduced separation of the two stations. Progress did not submit
    either a waiver request or a letter of concurrence from Carolina for
    operations on 900/939.950 MHz. Accordingly, we find that the Branch
    properly dismissed Progress' application with respect to this
    frequency. Based on the information presented therein in this
    regard, we note that nothing in the application indicated the
    corporate relationship between Progress and Carolina; thus, even if
    UTC's interpretation of the rule were correct, we believe the Branch
    still acted correctly based on the information then before it.[^15]
    Consequently, we deny the Request with respect to frequency pair
    900/939.950 MHz.

4.  On the other hand, we find that the other 900 MHz frequencies that
    Progress requested in the application satisfy the distance
    requirements of Section 90.621.[^16] Accordingly, we believe that
    the Branch's dismissal of the application was premature with respect
    to the requested frequencies other than frequency pair 900/939.950
    MHz. Therefore, we will grant the Request with respect to the
    frequencies listed in the application, with the exception of
    900/939.950 MHz, and will return in turn, reinstate the application
    and return it to pending status and process it with respect to such
    other frequencies.[^17]

5.  IT IS ORDERED that, pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
    and Sections 1.106 and 90.621 of the Commission's Rules, 47 C.F.R. §
    1.106, 90.621, the Request for Reconsideration filed by UTC Spectrum
    Services on January 7, 2003, IS GRANTED IN PART AND DENIED IN PART,
    as indicated herein.

6.  IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
    that application FCC File No. 0001030390 SHALL BE PROCESSED
    consistent with this *Order on Reconsideration* and the Commission's
    Rules.

7.  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 Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: UTC Spectrum Services Request for Reconsideration (filed Jan. 7,
    2003) (Request).

[^2]: The Commission reorganized the Wireless Telecommunications Bureau
    effective November 13, 2003, and the relevant duties of the Public
    Safety and Private Wireless Division were assumed by the Public
    Safety and Critical Infrastructure Division. *See* Reorganization of
    the Wireless Telecommunications Bureau, *Order*, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003).

[^3]: See Automated Dismissal Letter, Reference Number 1654121,
    effective Dec. 12, 2002, generated Dec. 13, 2002. (Dismissal).

[^4]: Request at 1.

[^5]: 47 C.F.R. § 90.621.

[^6]: FCC File No. 0001030390 (filed Sept. 17, 2002, amended Dec. 10,
    2002).

[^7]: Dismissal at 1.

[^8]: Applicants that seek a waiver must serve their request on all
    co-channel licensees within the applicable area. *See* Park City
    Mountain Resort, 14 FCC Rcd 17178, 17178-79 ¶¶ 2-3 (WTB PSPWD 1999)
    (*Park City*). Applicant must also file an analysis of interference
    potential from mobile transmitters to existing co-channel base
    station receivers. 47 C.F.R. § 90.621(b)(4).

[^9]: Dismissal at 1.

[^10]: Request at 1.

[^11]: Nor does 47 C.F.R. § 90.621 authorize exceptions to the
    separation requirements for secondary stations. *See* White Eagle
    Concrete, Inc., 18 FCC Rcd 15172, 15173 ¶ 4 (WTB PSPWD 2003) (*White
    Eagle*).

[^12]: *See* Northwest Airlines, Inc., *Order on Reconsideration*, 16
    FCC Rcd 2525, 2526-27 ¶ 5 (WTB PSPWD 2001); *Park City*, 14 FCC Rcd
    17178 ¶ 2.

[^13]: 47 C.F.R. § 90.621(b)(5).

[^14]: 21^st^ Century Wireless Group, Inc., *Order on Reconsideration*,
    17 FCC Rcd 8260, 8261 ¶ 4 (WTB PSPWD 2002).

[^15]: Nor did the Branch have any other information at its disposal
    indicating the relationship, because the two entities use separate
    FCC Registration Numbers.

[^16]: FCC Application File No. 0001030390, Frequency Information, at
    16-17.

[^17]: *White Eagle*, 18 FCC Rcd at 15173 ¶¶ 4-5.