**Before the**

#########  Federal Communications Commission

#########  Washington, D.C. 20554

In the Matter of )

)

Claircom Licensee Corporation and GTE ) File Nos. 0000421562

Airfone Incorporated Requests For Waivers of ) 0000420815

Air-Ground Radiotelephone Service Rules )

ORDER

Adopted: October 5, 2001 Released: October 9, 2001

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

I. Introduction

1.  On April 9, 2001, Claircom Licensee Corporation ("Claircom") and GTE
    Airfone Incorporated ("GTE Airfone" and, collectively, "Air-Ground
    licensees") submitted requests for joint waivers of sections 22.857,
    22.869 and 22.381 of the commercial Air-Ground Radiotelephone
    Service ("Air-Ground") licensing rules ("Waiver Request"). On May
    15, 2001, the Wireless Telecommunications Bureau released a Public
    Notice (DA 01-1216) seeking comments on the Waiver Request.[^1] The
    Bureau received one comment from Claircom supporting the waiver
    request.

2.  In the Waiver Request, the Air-Ground licensees request the
    following: (1) waiver of section 22.857 of the Commission's rules to
    combine unassigned control channels P-5 and P-6 and use them as an
    additional communications channel C-30 and an increase in guardband
    from 3.2 kHz to 3.6 kHz between control channel P-4 and the proposed
    communications channel C-30; (2) waiver of sections 22.857 and
    22.869 of the Commission's rules to allow for the use of unassigned
    control channel P-4 for Air-Ground equipment testing without prior
    Commission approval; and (3) waiver of section 22.381 of the
    Commission's rules to allow for the use of a mobile auxiliary test
    transmitter on fixed channels currently designated for ground
    station use. The Air-Ground licensees assert that grant of the
    waivers will serve the public interest by enhancing the availability
    and the provision of Air-Ground services to the public.

    **II. Discussion**

3.  The Commission may grant a waiver if it is demonstrated that: (1)
    the underlying purpose of the rule 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 (2) in 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.[^2] For the reasons discussed herein, we
    grant the waivers requested by the Air-Ground licensees, subject to
    the conditions set forth below.

4.  Since Claircom and GTE Airfone are currently the only two licensees
    operating and providing Air-Ground services, the purpose of section
    22.857, which is to provide an exclusive control channel for each
    Air-Ground licensee, would leave several control channels unassigned
    and would result in Air-Ground spectrum being unused. By allowing
    the licensees to use the unassigned Air-Ground control channels (P-5
    and P-6) as a communications channel (C-30) and increase the
    guardband from 3.2 kHz to 3.6 kHz between control channel P-4 and
    the communications channel C-30, the Division believes that grant of
    the waiver request (with conditions) will serve the public interest
    by enabling the Air-Ground licensees to more effectively use the
    allocated spectrum.

5.  The purpose of sections 22.857 and 22.869 is to require all
    licensees to obtain authorization or experimental licenses prior to
    conducting any equipment testing. With the grant of the waiver
    request to allow control channels P-5 and P-6 (which are normally
    used for testing by the Air-Ground licensees) to be used as a
    communications channel, they will no longer be available for
    testing. The Division believes that grant of the requested waiver of
    sections 22.857 and 22.869 to allow the use of control channel P-4
    on a routine basis without separate individual authorization to test
    equipment is warranted and will conserve Commission resources,
    reduce delays in testing, research and development, and serve the
    public interest by enhancing the availability and the provision of
    Air-Ground services to the public.

6.  The purpose of section 22.381 is to authorize auxiliary transmitters
    only to test the performance of fixed receiving equipment located
    remotely from the control point and to transmit only on channels
    designated for mobile transmitters. The effect is to restrict the
    use of fixed channels for testing airborne equipment to the
    laboratory or the production line. Claircom and GTE Airfone argue
    that the current rule restricts their ability to test equipment
    after it has been installed on the aircraft at a location where
    there is no ground station within range. Since the Air-Ground
    licensees are responsible for the maintenance of the transmission
    equipment utilized by the caller and the licensee, the Division
    believes that grant of this waiver request, with the conditions set
    herein, will be in the public interest, reduce the Commission's
    regulatory burden, and provide Claircom and GTE Airfone with testing
    flexibility while providing adequate interference protection.

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III. **Ordering Clauses**

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7.  ACCORDINGLY, IT IS ORDERED that, pursuant to sections 4(i) and 309
    of the Communications Act, as amended, 47 U.S.C. §§ 154(i) and 309,
    and sections 0.331 and 1.925(b)(3) of the Commission\'s rules, the
    waiver of section 22.857 requested by Claircom and GTE Airfone is
    GRANTED subject to the following conditions: (1) if circumstances
    exist that result in interference to a licensee, Claircom and GTE
    Airfone shall resolve the interference in accordance with the
    Commission's rules; and (2) the use of channels P-5 and P-6 as C-30
    pursuant to this waiver is subject to any future decision by the
    Commission to assign this spectrum to another Air-Ground licensee or
    to use it for another purpose.

8.  IT IS FURTHER ORDERED that the waiver of sections 22.857 and 22.869
    requested by Claircom and GTE Airfone is GRANTED subject to the
    following conditions: (1) Claircom and GTE Airfone shall coordinate
    their use of channel P-4 with one another; (2) they shall provide
    each other with test schedules and other information ten days prior
    to any testing on channel P-4; and (3) the use of channel P-4
    pursuant to this waiver is subject to any future decision by the
    Commission to assign this spectrum to another Air-Ground licensee or
    to use it for another purpose.

9.  IT IS FURTHER ORDERED that the waiver of section 22.381 requested by
    Claircom and GTE Airfone is GRANTED subject to the following
    conditions: (1) Claircom and GTE Airfone shall not exceed 0 dBm EIRP
    while using ground station channels for testing; (2) no channel
    block shall be used for testing purposes at a transmitter site
    located within 50 miles of a location where the channel is being
    used to provide commercial aviation Air-Ground service; (3) channel
    blocks used for testing may be used only to test aircraft situated
    on an airport tarmac or hangar area; (4) use of test channel blocks
    is permitted at itinerant locations on an intermittent basis, as
    testing is needed; (5) Claircom and GTE Airfone shall each use their
    own FCC assigned and authorized control channels for test
    purposes; (6) use of test channels is governed by the same free
    channel Air-Ground channel availability rules set forth in section
    22.865(a) of the Commission rules; and (7) use of auxiliary test
    transmitters to provide commercial Air-Ground service to the public
    is prohibited.

#  Federal Communications Commission

#  Katherine M. Harris

#  Deputy Chief, Commercial Wireless Division

#  Wireless Telecommunications Bureau

[^1]: *See* *Public Notice*, Wireless Telecommunications Bureau Seeks
    Comment on Requests for Waiver of Part 22 Air-Ground Radiotelephone
    Service Rules, DA 01-1216 (rel. May 15, 2001).

[^2]: *See* 47 C.F.R. § 1.925(b)(3).