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 Federal  Communications  Commission  DA  00-  01 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  )  ) 
 DISPATCH  INTERACTIVE  TELEVISION,  INC.  )  ) 
 Request  for  Waiver  and  Declaratory  Ruling  of  )  Sections  95.855  and  95.859(  a)  ) 
 of  the  Commissions  Rules  ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  January  3,  2000  Released:  January  5,  2000 
 By  the  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau: 
 I.  INTRODUCTION 
 1.  On  June  9,  1998,  Dispatch  Interactive  Television,  Inc.  (DITV)  filed  an  Amendment  to  Request  for  Waiver  and  Declaratory  Ruling  1  of  Sections  95.855  and  95.859(  a)  of  the  Commissions 
 Rules.  2  DITV  seeks  the  waiver  so  that  it  may  provide  one-  way  voice  or  data  transmission  services,  including  paging  services,  over  a  218  219  MHz  Service  3  system  with  an  effective  radiated  power  (ERP) 
 of  up  to  250  watts.  4  DITVs  request  was  placed  on  public  notice  on  August  25,  1998.  5  On  September  15,  1998,  AirTouch  Paging  (AirTouch)  filed  comments  in  opposition  to  the  Waiver  Request.  6  On  September 


 1  Amendment  to  Request  for  Waiver  and  Declaratory  Ruling,  Dispatch  Interactive  Television,  Inc.:  Station 
 KIVD0037,  Indianapolis,  Indiana  (filed  June  9,  1998)  (Waiver  Request).  The  Commission  subsequently  modified  the  rules  at  issue.  See  Amendment  of  Part  95  of  the  Commissions  Rules  to  Provide  Regulatory  Flexibility  in  the 


 218-  219  MHz  Service,  Report  and  Order  and  Memorandum  Opinion  and  Order,  WT  Docket  No.  98-  169  (rel.  September  10,  1999)  (Flexibility  Report  and  Order).  Because  the  waiver  of  Section  95.  859(  a)  is  no  longer 
 necessary  given  that  these  new  rules  became  effective  on  January  3,  2000,  we  shall  only  address  DITVs  request  with  respect  to  Section  95.855. 


 2  47  C.  F.  R.    95.  855,  95.  859(  a). 
 3  After  DITV  filed  its  request,  the  Commission  redesignated  what  formerly  had  been  known  as  Interactive  Video  and 
 Data  Service  as  the  218-  219  MHz  Service.  Amendment  of  Part  95  of  the  Commissions  Rules  to  Provide  Regulatory  Flexibility  in  the  218-  219  MHz  Service,  Order,  Memorandum  Opinion  and  Order  and  Notice  of 


 Proposed  Rulemaking,  WT  Docket  No.  98-  169,  13  FCC  Rcd  19064,  19075    16  (1998). 
 4  Waiver  Request  at  1.  DITV  originally  requested  a  waiver  and  declaratory  ruling  on  February  3,  1998,  to  permit  it 
 to  operate  its  system  with  an  ERP  of  up  to  20  watts.  On  June  9,  1998,  it  amended  the  request  to  seek  a  waiver  to  permit  it  to  operate  with  an  ERP  of  up  to  250  watts.  The  June  9,  1998  filing  does  not  request  or  discuss  any  desired 


 declaratory  ruling.  We  shall  address  herein  only  the  June  9,  1998  request  for  a  waiver. 
 5  Dispatch  Interactive  Television  Request  for  Declaratory  Ruling  and  Waiver  of  Sections  95.  855  and  95.  859(  a)  of  the 
 Commissions  Rules,  Public  Notice,  13  FCC  Rcd  25388  (CCB  1998). 
 6  Comments  of  AirTouch  Paging  (filed  September  15,  1998)  (Comments). 
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 30,  1998,  DITV  filed  reply  comments.  7  No  other  comments  were  filed.  For  the  reasons  stated  herein,  we  grant  DITVs  request. 
 II.  BACKGROUND 
 2.  DITV  holds  the  B  Block  218-  219  MHz  Service  license  in  the  Indianapolis,  Indiana  Metropolitan  Statistical  Area  (MSA),  Call  Sign  KIVD0037.  8  DITV  is  a  wholly  owned  subsidiary  of  the 
 Dispatch  Printing  Company  (Dispatch),  which,  through  a  subsidiary,  also  holds  the  license  for  Channel  13  Television  Station  WTHR,  Indianapolis,  Indiana.  9  The  system  described  by  DITV  in  the  Waiver  Request 
 includes  a  single  cell  transmitter  station  (CTS)  co-  located  upon  the  antenna  structure  used  by  Station  WTHR.  10  DITV  seeks  permission  to  operate  this  CTS  at  an  ERP  up  to  250  watts.  11  Section  95.855  of  the 
 Commissions  Rules  limits  CTSs  to  an  ERP  of  20  watts.  12  DITV  plans  to  use  the  system  to  provide  any  and  all  one-  way  voice  or  data  transmission  services,  including  paging  services.  13 


 III.  DISCUSSION 
 3.  We  may  grant  a  request  for  waiver  when  a)  the  underlying  purpose  of  the  rule  would  not  be  served  by  application  to  the  instant  case,  and  a  grant  of  the  requested  waiver  would  be  in  the  public 
 interest;  or  b)  in  view  of  unique  or  unusual  circumstances,  application  of  the  rule  would  be  inequitable,  unduly  burdensome  or  contrary  to  the  public  interest,  or  the  applicant  has  no  reasonable  alternative.  14  We 
 find  that  DITV  has  satisfied  the  first  waiver  standard. 
 4.  First,  we  agree  with  DITV  15  that  the  underlying  purpose  of  Section  95.  855  is  to  minimize  the  potential  for  218-  219  MHz  Service  signals  to  interfere  with  Channel  13  Television  reception.  16  DITV 
 states  that  the  design  of  its  system  eliminates  this  concern  because  co-  locating  the  218-  219  MHz  Service  transmitting  antenna  with  the  Channel  13  television  station  antenna  will  maintain  the  transmitting  power 
 disparity  between  Station  WTHR  and  the  218-  219  MHz  Service  signal  throughout  Station  WTHRs  service  area  at  approximately  10,000  to  1.  17  Furthermore,  we  note  that  Section  95.861(  e)  of  the 


 7  Reply  Comments  of  Dispatch  Interactive  Television  (filed  September  30,  1998)  (Reply  Comments). 
 8  Waiver  Request  at  1. 
 9  Id.  at  1-  2. 
 10  Id.  at  4. 
 11  Id. 
 12  47  C.  F.  R.    95.  855. 
 13  Waiver  Request  at  1. 
 14  47  C.  F.  R.    1.925(  b)(  3). 
 15  Waiver  Request  at  3. 
 16  See  Amendment  of  Parts  0,  1,  2,  and  95  of  the  Commissions  Rules  to  Provide  Interactive  Video  and  Data 
 Services,  Report  and  Order,  GEN  Docket  No.  91-  2,  7  FCC  Rcd  1630,  1633-  34    25-  26  (1992);  see  also  Flexibility  Report  and  Order  at    110. 


 17  Waiver  Request  at  4. 
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 Commissions  Rules,  which  requires  218-  219  MHz  Service  licensees  to  correct  interference  problems,  provides  an  additional  safeguard  against  harmful  interference  to  over-  the-  air  broadcast  television 
 reception.  18  In  light  of  these  circumstances,  and  the  fact  that  DITVs  parent  is  the  Television  Channel  13  licensee,  we  are  persuaded  that  DITV  will  ensure  that  the  218-  219  MHz  Service  transmissions  will  not 
 interfere  with  Channel  13  television  reception.  19  Consequently,  we  conclude  that  the  requested  waiver  would  not  frustrate  the  underlying  purpose  of  Section  95.855. 


 5.  DITV  further  argues  that  granting  the  Waiver  Request  will  serve  the  public  interest  by  facilitating  the  provision  of  a  new  private  communications  service  in  the  one-  way  voice  and  data 
 marketplace,  increasing  the  ability  of  licensees  to  respond  to  the  demands  of  certain  members  of  the  public  that  cannot  currently  receive  service.  20  DITV  asserts,  21  therefore,  that  good  cause  is  found  to 
 support  grant  of  its  Waiver  Request  in  that  such  grant  will  further  the  Commissions  goal  of  making  flexible,  market-  oriented  218-  219  MHz  Service  available  to  consumers.  22 


 6.  AirTouch,  in  opposition,  states  that  DITVs  core  rationale  supporting  the  Waiver  Request  is  simply  that  its  current  configuration  of  218-  219  MHz  Service  has  not  proven  commercially  feasible.  23 
 According  to  AirTouch,  if  we  were  to  accept  such  a  rationale  and  grant  the  Waiver  Request,  we  should  expect  a  deluge  of  other  218-  219  MHz  Service  licensees  seeking  to  provide  alternative  services  such  as 
 those  proposed  by  DITV.  24  AirTouch  asserts  that  rather  than  eviscerating  the  218-  219  MHz  Service  rules  by  waiver  in  this  fashion,  the  Commission  should,  if  it  accepts  DITVs  infeasibility  argument,  open  a 
 rulemaking  proceeding  to  consider  revision  of  the  Commissions  rules  for  the  218-  219  MHz  Service  or  reallocation  of  the  spectrum.  25 


 7.  We  agree  with  DITV  26  that  AirTouchs  objections  are  based  on  the  erroneous  contention  that,  through  the  Waiver  Request,  DITV  is  seeking  to  provide  interconnected  common  carrier  paging 


 18  47  C.  F.  R.    95.  861(  e). 
 19  Waiver  Request  at  4.  Indeed,  DITV  represents  that  it  will  eliminate  any  unacceptable  interference  to  WTHR  or 
 cease  operations.  Id. 
 20  Id.  at  5. 


 21  Id. 
 22  See  Flexibility  Report  and  Order  at    17. 
 23  Comments  at  2. 
 24  Id. 
 25  Id. 
 26  Reply  Comments  at  1. 
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 services  not  presently  authorized  by  the  Commissions  Rules.  27  We  believe  that  DITV  is  neither  threatening  to  eviscerate  the  218-  219  MHz  Service  rules  nor  proposing  to  provide  alternative  services; 
 rather,  it  is  our  understanding  that  the  services  to  be  provided  by  DITV  will  be  services  already  authorized  by  the  Commissions  rules,  requiring  no  waiver.  28  Although  the  218-  219  MHz  Service  originally  was 
 classified  as  a  fixed  communications  service,  the  Commission  amended  its  rules  in  May  1996  to  permit  218-  219  MHz  Service  licensees  to  operate  a  fully  mobile  system.  29  In  addition,  the  Commission  recently 
 clarified  that  both  one-  and  two-  way  communications  are  permissible.  30 
 8.  AirTouch  also  argues  that  grant  of  the  Waiver  Request  will  undermine  the  auction  process,  because  there  were  dramatic  differences  in  the  prices  paid  for  218-  219  MHz  Service  spectrum  as 
 compared  to  spectrum  that  was  allocated  to  uses  that  permitted  interconnected  wireless  common  carrier  services.  31  We  believe  that  the  Commission  has  already  rejected  this  argument,  on  the  grounds  that 
 auction  winners  have  no  reasonable  expectation  that  they  will  be  shielded  from  potential  competitors.  32  Moreover,  we  believe  that  this  argument  is  also  based  on  the  mistaken  premise  that  DITV  proposes  to 
 offer  services  not  already  permitted  by  the  Commissions  218-  219  MHz  Service  rules. 
 IV.  CONCLUSION 
 10.  We  conclude  that  DITV  has  demonstrated  good  cause  exists  for  the  grant  of  its  request  for  waiver  of  Section  95.855  of  the  Commissions  Rules.  We  will  allow  it  to  provide  non-  common 
 carrier  non-  interconnected  one-  way  voice  or  data  transmission  services,  including  paging  services,  over  a  218-  219  MHz  Service  system  with  an  ERP  of  up  to  250  watts,  co-  located  with  the  transmitter  for  Channel 
 13  Television  Station  WTHR.  All  other  218-  219  MHz  Service  rules  continue  to  apply  to  DITVs  system. 


 27  See  47  C.  F.  R.    95.  805(  c),  (f).  In  addition,  AirTouch  notes  that,  since  February  6,  1996,  the  Commission  has 
 suspended  the  filing  of  applications  for  new  paging  facilities  licensed  under  Parts  22  and  90  of  the  rules,  and  argues  that  it  would  be  unfair  to  allow  others  to  convert  spectrum  to  interconnected  paging  uses  by  waiver  when  the 


 existing  paging  industry  is  at  a  standstill  by  virtue  of  a  suspension  of  the  acceptance  and  processing  of  applications  that  has  lasted  much  longer  than  originally  anticipated.  Comments  at  7-  8  (citing  Revision  of  Part  22  and  Part  90  of 
 the  Commissions  Rules  to  Facilitate  Future  Development  of  Paging  Systems,  Notice  of  Proposed  Rulemaking,  WT  Docket  No.  96-  18,  11  FCC  Rcd  3108  (1996)).  We  agree  with  DITV  that  the  Commissions  interim  policy  regarding 
 paging  applications  is  not  relevant  to  DITVs  request  for  waiver  of  the  218-  219  MHz  Service  rules.  Reply  Comments  at  8.  See,  e.  g.,  Commonwealth  of  Pennsylvania,  Order,  DA  99-  1756,    11  (WTB  PSPWD  rel.  August 
 31,  1999)  (rejecting  argument  that  waiver  to  allow  public  safety  to  share  private  land  mobile  radio  (PLMR)  frequencies  should  be  granted  only  if  the  Commission  also  waived  or  lifted  its  suspension  of  inter-  agency  sharing  by 
 PLMR  licensees).  Further,  we  believe  that  this  AirTouch  argument  also  is  premised  on  a  misunderstanding  of  DITVs  proposed  service  offerings. 


 28  Reply  Comments  at  4. 
 29  Amendment  of  Part  95  of  the  Commissions  Rules  to  Allow  Interactive  Video  and  Data  Service  Licensees  to 
 Provide  Mobile  Service  to  Subscribers,  Report  and  Order,  WT  Docket  No.  95-  47,  11  FCC  Rcd  6610,  6613    9  (1996);  47  C.  F.  R.    95.  805. 


 30  Flexibility  Report  and  Order  at    23. 
 31  Comments  at  6. 
 32  Flexibility  Report  and  Order  at    18. 
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 V.  ORDERING  CLAUSES 
 11.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  and  Section  1.925  of  the  Commissions  Rules, 
 47  C.  F.  R.    1.  925,  DITVs  Amendment  to  Request  for  Waiver,  filed  on  June  9,  1998,  IS  GRANTED. 
 12.  This  action  is  taken  under  delegated  authority  pursuant  to  Sections  0.131  and  0.331  of  the  Commissions  Rules,  47  C.  F.  R.    0.131,  0.331. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Dwana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless  Division 
 Wireless  Telecommunications  Bureau 
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