**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0002460693      |
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| MARITEL SOUTHERN PACIFIC, INC.   | ** |                              |
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| Assignor                         | *  |                              |
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| WARREN C. HAVENS                 | ** |                              |
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| Assignee                         | *  |                              |
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| Application for Consent to the   | ** |                              |
| Partitioning and Disaggregation  |    |                              |
| of VHF Public Coast Station      | *  |                              |
| License WPOJ536                  | *) |                              |
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| Request for Waiver of Section    |    |                              |
| 80.773 of the Rules Regarding    | *  |                              |
| Signal Strength                  | *) |                              |
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**ORDER**

**Adopted: January 26, 2007 Released: January 29, 2007**

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

1.  *Introduction.* On February 14, 2006, MariTEL Southern Pacific, Inc.
    (MariTEL) filed an application to partition and disaggregate
    portions of its VHF Public Coast (VPC) geographic area license
    WPOJ536 to Warren C. Havens (Havens).[^1] The application also
    requests a waiver of Section 80.773(c) of the Commission's
    Rules,[^2] which specifies the non-interference obligations of
    adjacent VPC geographic area licensees.[^3] The waiver is sought so
    that the parties may implement an agreement authorizing operation at
    their common borders with higher signal strengths than Section
    80.773(c) would otherwise permit.[^4] For the reasons that follow,
    we grant the waiver request to the extent indicated below, and will
    grant the application.

2.  *Background.* MariTEL is the licensee of maritime VPC Service Area
    (VPCSA) 6, the Southern Pacific region, under call sign WPOJ536.
    Havens is the licensee of inland VPCSA 34, which is adjacent to
    VPCSA 6, under call sign WPOJ521. On June 14, 2004, MariTEL and
    Havens filed an application to partition and disaggregate portions
    of VPCSA 6 to Havens.[^5] In addition, on June 30 and July 29, 2004,
    respectively, Havens and MariTEL filed applications and waiver
    requests to modify their adjoining VPC geographic area licenses to
    authorize a mutually agreed upon signal strength in their common
    border area.[^6]

3.  On February 16, 2005, the former Public Safety and Critical
    Infrastructure Division, Wireless Telecommunications Bureau,[^7]
    adopted and released an Order conditionally granting the application
    to partition and disaggregate portions of the WPOJ536 license,
    granting the parties' requested waiver of Section 80.773(c), and
    modifying their respective licenses as requested (*Order*).[^8] The
    *Order* provided the parties with the specific waiver relief they
    requested regarding signal strengths along the border between VPCSAs
    6 and 34.[^9] The parties would have been able to increase their
    signal strengths at the border without a waiver because Section
    80.773(c) itself provides that the signal strength limits set forth
    in the rule may be exceeded with the agreement of all affected
    geographic area VPC licensees. The parties nonetheless desired and
    needed a waiver of the rule to implement that portion of their
    agreement that provided for the modification of their respective
    licenses to reflect the agreed-upon higher signal strengths, a
    measure intended to protect each party's right to continue to
    operate with the greater signal strength even if one of the other
    parties were to lose its authorization.[^10]

4.  In the instant application, MariTEL proposes to assign additional
    frequencies to Havens[^11] through partitioning and
    disaggregation.[^12] The applicants contend in the joint *Waiver*
    *Request* that the additional partitioning and disaggregation of
    license WPOJ536, and the associated additional waiver relief they
    seek, is intended to permit them to "more efficiently and fully"
    implement their intentions and commitments under their agreement,
    and would allow Havens to "fully utilize use the \[acquired\]
    spectrum in remote mountains of the California Sierra Mountain range
    while also protecting MariTEL's use of the spectrum to the
    West."[^13] MariTEL and Havens also state that this *Waiver Request*
    presents no new legal or factual issues beyond those that the former
    Public Safety and Critical Infrastructure Division considered in
    approving their first waiver request in the *Order*.[^14]

5.  *Discussion*. Section 1.925(b)(3) of the Commission's Rules provides
    that the Commission may grant a request for waiver "if it is shown
    that (i) \[t\]he underlying purpose of the rule(s) would not be
    served or would be frustrated by application to the instant case,
    and that a grant of the requested waiver would be in the public
    interest; or (ii) \[i\]n view of unique or unusual factual
    circumstances of the instant case, application of the rule(s) would
    be inequitable, unduly burdensome or contrary to the public
    interest, or the applicant has no reasonable alternative."[^15] We
    conclude that grant of the *Waiver Request* is warranted under the
    first prong of this standard, in that the underlying purpose of
    Section 80.773(c) would not be served by application to the instant
    case, and providing the requested relief would be in the public
    interest.

6.  We agree with MariTEL and Havens that grant of the *Waiver Request*
    is warranted for the same reasons that supported the grant of the
    waiver of Section 80.773(c) in the *Order*.[^16] By including the
    agreed-upon signal strength limits as license conditions, we provide
    certainty to the parties and encourage investment in the authorized
    facilities; if the enhanced signal strength limits did not attach to
    the licenses, either of the parties might be required to reduce its
    signal strength to the maximum allowed under the rule in the event
    that the other party's license was terminated or divested.[^17] We
    continue to believe that this limited waiver of Section 80.773(c) is
    warranted as a means to "provide protection to the licensees from
    any disruption of their operations that could result from actions of
    parties outside of their control."[^18] Indeed, we find no basis to
    accord this protection to the licensees only with respect to some of
    the partitioned areas and disaggregated frequencies involved in
    these transactions, while withholding it with respect to others.

7.  We also find no basis to conclude that grant of the subject
    application and *Waiver Request* would create potential harmful
    interference to maritime communications any more than would the
    grant of the earlier partitioning and disaggregation application,
    and the associated waivers, in the *Order*. MariTEL and Havens
    emphasize that they are not proposing to assign or disaggregate VHF
    maritime Channel 87B (161.975 MHz) in this transaction; thus, that
    channel remains available for maritime Automatic Identification
    Systems (AIS) and our decision here does not alter the channel's
    current regulatory status.[^19] As was done in the *Order*,
    moreover, we expressly condition the grant of the instant waiver of
    Section 80.773(c) with a proviso that there be no interference to
    current or future marine communications, including but not limited
    to AIS operations.[^20]

8.  *Conclusion*. We grant the application to assign the requested
    frequencies by partitioning and disaggregation from MariTEL to
    Havens as serving the public interest, convenience, and
    necessity.[^21] In addition, we grant MariTEL and Havens a waiver of
    Section 80.773(c) to permit the signal strength limits to which they
    have agreed (with Placer County as well as each other) in their
    common border area to be placed on their licenses as conditions to
    the licenses.[^22] This waiver grant is subject to the condition
    that no interference is caused to current or future marine
    communications, including but not limited to AIS operations.

9.  For reasons set forth above, IT IS ORDERED, pursuant to the
    authority of Sections 4(i) and 303(i) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 303(i), and Section 1.925 of
    the Commission's Rules, 47 C.F.R. § 1.925, that the Request for
    Waiver filed by MariTEL Southern Pacific, Inc. and Warren C. Havens
    in association with FCC File No. 0002460693 on February 14, 2006 IS
    GRANTED TO THE EXTENT STATED HEREIN SUBJECT TO THE CONDITION THAT no
    interference is caused to current or future marine communications,
    including but not limited to AIS operations.

10. IT IS FURTHER ORDERED that application FCC File No. 0002460693 SHALL
    BE PROCESSED consistent with this Order and the Commission's Rules,
    and the licenses at issue shall be modified accordingly.

11. 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

Scot Stone

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: *See* FCC File No. 0002460693.

[^2]: *See id*, Exhibit A, "Description of Application and Request for
    Waiver" (*Waiver Request*).

[^3]: 47 C.F.R. § 80.773(c). Section 80.773(c) provides that VPC
    geographic area licensees "are prohibited from exceeding a field
    strength of +5 dBu (decibels referenced to 1 microvolt per meter) at
    their service area boundaries, unless all the affected \[VPC\]
    geographic area licensees agree to the higher field strength."

[^4]: *See Waiver Request* at 3.

[^5]: *See* FCC File No. 0001775400.

[^6]: *See* FCC File Nos. 0001791005 (Havens), 0001823171 (MariTEL).

[^7]: Pursuant to a Commission reorganization effective September 25,
    2006, certain duties of the Public Safety and Critical
    Infrastructure Division were assumed by the Mobility Division. *See*
    Establishment of the Public Safety and Homeland Security Bureau,
    *Order*, 21 FCC Rcd 10867 (2006).

[^8]: *See* County of Placer, California, *Order*, 20 FCC Rcd 3657 (WTB
    PSCID 2005) (*Order*). The *Order* also granted an application filed
    by MariTEL and the County of Placer, California (Placer) to
    partition and disaggregate portions of the WPOJ536 license to
    Placer, and waived the Commission's Part 80 rules to permit Placer
    to use the assigned spectrum in a public safety communications
    system that would be regulated pursuant to the Part 90 rules. Placer
    is also a party to the agreement regarding signal strength along the
    border between VPCSAs 6 and 34.

[^9]: *See id*. at 3659 ¶ 5. The agreement among the parties permits,
    *inter alia*, Havens to operate in the partitioned area and
    elsewhere in VPCSA 34 on the channel pairs he received from MariTEL
    with a signal strength of 50 dBu at the boundary between the
    partitioned area and the remainder of VPCSA 6; and MariTEL to
    operate on the channel pairs Havens received from it with a field
    strength of 7 dBu at the boundaries between the partitioned area and
    the remainder of VPCSA 6. *See also Waiver Request* at 4.

[^10]: *See Order*, 20 FCC Rcd at 3659 ¶ 5.

[^11]: *See* Exhibits B and C of the application, identifying the
    specific frequency pairs to be assigned to Havens in three
    delineated areas of VPCSA 6.

[^12]: Section 80.60 of the Commission's Rules, 47 C.F.R. § 80.60,
    permits the partitioning and disaggregation of VPC spectrum.

[^13]: *Waiver Request* at 1.

[^14]: *Id*. Given the absence of any novel legal or factual issues
    beyond those addressed in the *Order*, MariTEL and Havens request an
    expedited response to the *Waiver Request*. *Id*. Our action herein
    moots the request for expedited response.

[^15]: 47 C.F.R. § 1.925(b)(3).

[^16]: The application, including the *Waiver Request*, was placed on
    public notice on February 22, 2006, and no opposing pleadings were
    filed. *See* Wireless Telecommunications Bureau Assignment of
    License Authorization Applications, Transfer of Control Licensee
    Applications, and *De Facto* Transfer Lease Applications Accepted
    for Filing, *Public Notice*, Report No. 2411 at 2 (WTB rel. Feb. 22,
    2006).

[^17]: *See* *Waiver Request* at 3.

[^18]: *See* *Order*, 20 FCC Rcd at 3662 ¶ 14.

[^19]: *See Waiver Request* at 2. Following the adoption of the *Order*
    and the filing of this application and *Waiver Request*, the
    Commission adopted a *Report and Order* in WT Docket No. 04-344
    adopting its proposal to designate Channel 87B for exclusive AIS use
    in the maritime VPCSAs, along with a *Further Notice of Proposed
    Rule Making*, in which it seeks comment on whether Channel 87B
    should be designated for exclusive AIS use in the inland VPCSAs as
    well. *See* Amendment of the Commission\'s Rules Regarding Maritime
    Automatic Identification Systems, *Report and Order and Further
    Notice of Proposed Rule Making and Fourth Memorandum Opinion and
    Order*, WT Docket No. 04-344, 21 FCC Rcd 8892 (2006).

[^20]: *See Order*, 20 FCC Rcd at 3662-63 ¶¶ 15-16. We note that
    providing for the higher signal strengths on the face of the
    parties' licenses does not estop the Commission from revising the
    pertinent rules or modifying the subject licenses, consistent with
    its lawful authority. As noted in the *Order*, the continuing
    enforceability of the agreed-upon signal strength limits has
    application only to third-party licensees and applicants, not the
    Commission itself. *See id*. at 3662 ¶ 14.

[^21]: *See* 47 U.S.C. § 310(d).

[^22]: The applicants also request that Havens be granted a single
    license consolidating the areas and frequencies which it has
    acquired both through approval of the earlier assignment application
    in the *Order* and through approval of the application herein, and
    that the earlier waiver grant be rescinded and replaced by grant of
    the instant *Waiver Request*. *See* *Waiver Request* at 4. We
    understand Havens to be concerned primarily that without such
    "consolidation," he will hold two licenses for two separate portions
    of the partitioned area, and thus possibly be required to comply
    with the 5 dBu limit in Section 80.773(c) at the border between
    those two areas. *Id*. at n.7. We clarify that Havens does not have
    to comply with the Section 80.773(c) signal strength limit at any
    such "internal border" that separates only areas that are licensed
    to Havens, through partitioning or otherwise. In such a case, Havens
    would be the only affected geographic area VPCSA licensee, and he
    could "agree with himself" to a higher field strength, provided that
    he continues to comply with the limit at all service area boundaries
    adjacent to any other VPCSA licensee (with whom Havens does not have
    a superseding agreement). Accordingly, we see no need to rescind the
    earlier waiver grant or to depart from our normal licensing
    procedures to address this particular concern.