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 Federal  Communications  Commission  DA  03-  830  __ 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  Applications  of  )  ) 
 FUTURE  COMM  )  File  Nos.  0000726942,  0000584833,  )  0000639642,  0000640852, 
 For  Authority  to  Operate  Private  Land  Mobile  Stations  )  0000597305,  0000711730  at  Various  Locations  in  California  ) 
 )  WHEELCARE  TRANSPORTATION    Station  WPVC521  )  File  No.  0000873738 
 DUNNS  SAND    Station  WPVC522  )  File  No.  0000873739  JACK  GRIGGS  INC    Station  WPVC777  )  File  No.  0000873740 
 YELLOW  CAB    Station  WPVC524  )  File  No.  0000873741  JESSE  VELASQUEZ    Station  WPVC525  )  File  No.  0000873742 
 GIST  FARMS  INC.    Station  WPVC519  )  File  No.  0000873746  PHILLIP  DEHAAN    Station  WPVC533  )  File  No.  0000873748 
 SLOVER  BROTHERS  TRUCKING  INC.    Station  WPVC538  )  File  No.  0000873749  REPLOGLE  FARMS    Station  WPVC539  )  File  No.  0000873751 
 GIST  TRUCKING    Station  WPVC540  )  File  No.  0000873752  SIERRA  LIFESTAR  AMBULANCE    Station  WPVC542  )  File  No.  0000873755 
 CHUCK  BROWN    Station  WPVC543  )  File  No.  0000873757  WINDMILL  RANCH    Station  WPVC544  )  File  No.  0000873758 
 SIMONICH  FARMS    Station  WPVC546  )  File  No.  0000873759  LANGE  PLUMBING  SUPPLY  INC.    Station  WPVC547  )  File  No.  0000873760 
 CAL  RED  PRODUCTS    Station  WPVC549  )  File  No.  0000873761  SHOO  FLY  SPRAYING    Station  WPVC551  )  File  No.  0000873762 
 )  For  Authority  to  Operate  Private  Land  Mobile  Stations  ) 
 on  Frequency  854.9125  MHz  at  Visalia,  California  ) 
 MEMORANDUM  OPINION  AND  ORDER  AND  ORDER  ON  RECONSIDERATION 
 Adopted:  March  19,  2003  Released:  March  21,  2003 
 By  the  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau: 
 I.  INTRODUCTION 
 1.  On  March  12,  2002,  William  Bolthouse  Farms,  Inc.  (  Bolthouse),  George  S.  Gillam  (  Gillam),  and  Felder  Communications  (  Felder)  (collectively,  Complainants)  filed  an  informal 
 complaint  requesting  that  the  Wireless  Telecommunications  Bureau  dismiss  six  pending  applications  filed  by  Future  Comm,  and  direct  Future  Comm  to  cease  its  unlicensed  operations  at  the  site  of  one  of  its 
 proposed  stations.  1  On  July  18,  2002,  Bolthouse  and  Felder  (collectively,  Petitioners)  filed  a  petition 

 1  Informal  Complaint  (filed  Mar.  12,  2002)  (  Informal  Complaint). 
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 for  reconsideration  2  of  the  grants  of  licenses  to  Wheelcare  Transportation  Station,  Dunns  Sand,  Jack  Griggs  Inc.,  Yellow  Cab,  Jesse  Velasquez,  Gist  Farms  Inc.,  Phillip  Dehaan,  Slover  Brothers  Trucking 
 Inc.,  Replogle  Farms,  Gist  Trucking,  Sierra  Lifestar  Ambulance,  Chuck  Brown,  Windmill  Ranch,  Simonich  Farms,  Lange  Plumbing  Supply  Inc.,  Cal  Red  Products,  and  Shoo  Fly  Spraying  (collectively, 
 Seventeen  Licensees).  For  the  reasons  stated  below,  we  grant  the  Informal  Complaint  in  part  and  dismiss  it  in  part,  and  we  grant  the  Petition. 

 II.  BACKGROUND 
 2.  Bolthouse  is  the  licensee  of  conventional  Industrial/  Land  Transportation  (I/  LT)  Station  WNPP607,  Kern  County,  California.  Gillam  is  the  licensee  of  conventional  I/  LT  Station  WPRL465, 
 Kern  County,  California.  Felder  is  the  licensee  of  conventional  I/  LT  Station  WQA519,  Fresno  County,  California.  All  three  stations  operate  on  frequency  pair  809/  854.9125  MHz. 

 3.  Informal  Complaint.  Between  September  2001  and  January  2002,  Future  Comm  filed  six  applications  for  authorization  to  construct  and  operate  trunked  800  MHz  I/  LT  stations  at  locations  in 
 Fresno,  Kings,  Mariposa,  Monterey,  San  Luis  Obispo,  Sutter,  and  Tulare  Counties,  California.  3  One  application,  FCC  File  No.  0000726942,  was  granted  on  May  8,  2002  under  Call  Sign  WPUI236.  The 
 other  applications  were  dismissed  between  December  2001  and  February  2003  because  Future  Comm  had  not  demonstrated  that  it  was  eligible  for  the  number  and  category  of  channels  requested.  4 

 4.  On  March  12,  2002,  Complainants  filed  the  Informal  Complaint  asserting  that  they  were  receiving  harmful  interference  on  frequency  854.9125  MHz  from  an  unlicensed  radio  facility  operated  by 
 Future  Comm  at  the  location  of  the  station  proposed  in  Future  Comms  application  File  No.  0000597305.  5  They  note  that  no  license  has  been  issued  for  the  facility,  6  and  request  an  order  that  Future  Comm  cease 
 all  construction  and  operation  of  the  facility  until  Future  Comm  is  authorized  to  operate.  7  Complainants  also  question  whether  any  of  Future  Comms  applications  should  be  granted,  in  light  of  Future  Comms 

 2  Petition  for  Reconsideration  (filed  July  18,  2002)  (  Petition). 
 3  File  No.  0000584833  (filed  Sept.  5,  2001);  File  No.  0000597305  (filed  Sept.  19,  2001);  File  No.  0000639642 
 (filed  Oct.  24,  2001);  File  No.  0000640852  (filed  Oct.  25,  2001);  File  No.  0000711730  (filed  Dec.  26,  2001);  File  No.  0000726942  (filed  Jan.  8,  2002). 

 4  File  No.  0000584833  was  dismissed  on  May  15,  2002,  on  the  grounds  that  Future  Comm  had  presented 
 insufficient  justification  to  authorize  the  channels  requested.  See  Ref.  No.  148736  (generated  May  16,  2002).  The  remaining  applications  were  dismissed  between  December  2001  and  February  2003,  on  the  grounds  that  Future 

 Comms  intended  use  of  the  stations  was  not  permitted  on  I/  LT  Pool  frequencies.  See  Ref.  No.  1177867  (generated  Dec.  11,  2001)  (File  No.  0000597305);  Ref.  No.  1312580  (generated  Mar.  1,  2002)  (File  No.  0000711730);  Ref. 
 No.  1342947  (generated  Mar.  20,  2002)  (File  No.  0000640852);  Ref.  No.  1752656  (generated  Feb.  19,  2003)  (File  No.  0000639642). 

 5  Informal  Complaint  at  1.  Actually,  Complainants  cite  FCC  File  No.  507305,  but  the  intended  reference  appears 
 to  be  to  File  No.  0000597305. 
 6  In  fact,  as  noted  earlier,  the  application  was  dismissed  in  December  2001.  See  supra  note  4. 

 7  Informal  Complaint  at  1-  2. 
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 apparent  unwillingness  to  avoid  creating  interference.  8  Complainants  also  express  doubt  about  Future  Comms  eligibility  for  the  frequencies  it  requested.  9 
 5.  Petition  for  Reconsideration.  On  May  2,  2002,  the  Seventeen  Licensees  filed  applications  to  use,  inter  alia,  frequency  854.9125  MHz  on  a  trunked  community  repeater  at  Potato  Hill, 
 Tulare  County,  California.  The  applications  were  granted  in  June  2002.  10 
 6.  On  July  18,  2002,  Petitioners  sought  reconsideration  of  the  grants  on  the  grounds  that  they  will  receive  significant  harmful  interference  from  the  Seventeen  Licensees  stations.  11  Petitioners 
 also  contend  that  Future  Comm  is  the  real  party  in  interest  with  respect  to  the  licenses,  and  reassert  the  allegations  in  the  Informal  Complaint  regarding  Future  Comms  disregard  for  its  obligation  to  avoid 
 causing  interference  to  other  licensees.  12  Petitioners  seek  cancellation  of  the  Seventeen  Licensees  authorization  to  use  frequency  854.9125  MHz.  13 

 III.  DISCUSSION 
 7.  Informal  Complaint.  As  noted  above,  application  File  No.  0000726942  was  granted  on  May  8,  2002,  but  the  Informal  Complaint  against  the  application  was  not  filed  until  May  12,  2002. 
 Section  1.106  of  the  Commissions  Rules  provides,  in  relevant  part,  that  a  petition  for  reconsideration  shall  be  filed  with  the  Commissions  Secretary  within  thirty  days  from  the  date  of  public  notice  of  the 
 final  Commission  action,  and  served  upon  parties  to  the  proceeding.  14  Although  the  Informal  Complaint  is  not  labeled  as  a  petition  for  reconsideration,  it  complies  with  the  applicable  procedural  requirements. 
 Accordingly,  we  will  treat  the  Informal  Complaint  as  a  petition  for  reconsideration  of  the  grant  of  the  application.  15 

 8.  Based  upon  our  review  of  the  record  in  this  proceeding,  we  conclude  that  the  application  should  not  have  been  granted.  In  the  application,  Future  Comm  provided  the  following  explanation  for  its 
 asserted  eligibility  for  I/  LT  channels:  Applicant  is  in  the  business  of  information  collection,  relay  and 
 8  Id.  at  2. 

 9  Id.  at  4-  6. 
 10  Applications  File  Nos.  0000873738-  42,  0000873748-  49,  0000873751-  52,  0000873755,  and  0000873757-  62  were 
 granted  on  June  18,  2002.  Application  File  No.  0000873746  was  granted  on  June  19,  2002. 
 11  Petition  at  3. 

 12  Id.  at  5-  6. 
 13  Id.  at  7. 
 14  47  C.  F.  R.    1.106(  f),  (i). 
 15  See,  e.  g.,  Daniel  R.  Goodman,  Receiver;  Dr.  Robert  Chan,  Memorandum  Opinion  and  Order  and  Order  on 
 Reconsideration,  13  FCC  Rcd  21994,  21959    24  (1998);  Radiowave,  Order  on  Reconsideration,  16  FCC  Rcd  5300,  5303    7  (WTB  2001).  Because  the  other  Future  Comm  applications  have  been  dismissed,  the  Informal 

 Complaint  is  moot  with  respect  to  those  applications. 
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 analysis  for  growers,  packers  and  truckers.  Radio  communications  shall  be  used  to  relay  information,  coordinate  field  activities  and  for  safety.  16  This  is  very  similar  to  the  Activity  Description  in  Future 
 Comms  other  applications,  17  which  the  Public  Safety  and  Private  Wireless  Division,  Licensing  and  Technical  Analysis  Branch  correctly  concluded  did  not  demonstrate  eligibility  for  I/  LT  spectrum.  18  We 
 agree  with  the  Complainants  that  Future  Comm  appears  to  intend  to  provide  communications  services  to  third  parties.  19  Such  services  are  permitted  on  800  MHz  I/  LT  frequencies  only  on  a  not-  for-  profit,  cost-shared 
 basis,  20  but  Future  Comm  has  given  no  indication  that  it  would  provide  service  on  such  a  basis.  We  conclude  that  application  File  No.  0000726942  should  have  been  dismissed  for  the  same  reasons  that 
 the  other  Future  Comm  applications  were  dismissed.  Consequently,  we  will  set  aside  the  grant,  return  the  application  to  pending  status  and  then  dismiss  the  application. 

 9.  Petition  for  Reconsideration.  Generally,  the  distance  separation  requirement  between  co-channel  I/  LT  stations  in  the  800  MHz  band  is  113  km.  21  We  note,  as  an  initial  matter,  that  Potato  Hill  is 
 more  than  113  km  from  both  Stations  WNPP607  and  WQA519.  22  However,  for  high  sites  in  California  north  of  35  North  latitude  and  west  of  118  West  latitude,  23  additional  criteria  apply.  Specifically, 
 Section  90.621(  b)(  2)  of  the  Commissions  Rules  contains  a  table  of  high  sites  in  that  part  of  California,  and  indicates  which  sites  cannot  have  co-  channel  stations.  24  Because  Potato  Hill  is  not  listed  in  the  table, 
 the  required  co-  channel  separations  must  be  determined  on  a  case-  by-  case-  basis,  taking  into  consideration 

 16  FCC  File  No.  0000726942,  Schedule  H,  Item  2. 
 17  See  FCC  File  No.  0000584833,  Schedule  H,  Item  2  (  Applicant  is  engaged  in  the  business  of  information 
 collection  and  analysis.  Radio  communication  is  to  be  used  to  coordinate  [sic]  field  activities,  relay  information  and  for  safety.);  FCC  File  No.  0000597305,  Schedule  H,  Item  2  (  Applicant  is  engaged  in  the  business  of  information 

 collection  and  analysis  and  shall  providing  [sic]  communication  to  agricultural  packing  and  transport  businesses.  Radio  communications  to  be  used  to  coordinate  field  activities  and  for  safety.);  FCC  File  No.  0000639642, 
 Schedule  H,  Item  2  (  Applicant  is  engaged  in  the  business  of  information  collection  and  analysis.  Radio  communication  will  be  used  to  relay  information,  coordinate  field  activities  and  for  safety.);  FCC  File  No. 
 0000640852,  Schedule  H,  Item  2  (  Applicant  is  engaged  in  the  business  of  information  collection  and  distribution  to  transport  businesses.  Radio  communications  to  be  used  to  coordinate  field  activities  and  for  safety.);  FCC  File 
 No.  0000711730,  Schedule  H,  Item  2  (  Applicant  is  engaged  in  the  business  of  information  collection,  relay  and  analysis  for  other  businesses,  growers,  packers  and  shippers.  Radio  communication  will  be  used  to  relay 
 information,  coordinate  field  activities  and  for  safety.). 
 18  See  supra  note  4. 

 19  Informal  Complaint  at  5. 
 20  47  C.  F.  R.    90.603(  b). 
 21  See  47  C.  F.  R.    90.621(  b). 
 22  Potato  Hill  is  approximately  160.8  km  from  Station  WNPP607  and  130.9  km  from  Station  WQA519.  Petition  at 
 2-  3. 
 23  Each  of  the  applications  of  the  Seventeen  Licensees  lists  the  coordinates  as  36-  19-  12.0  N/  118-  56-  39.0  W.  Station 
 WNPP607s  transmitters  are  located  at  35-  55-  10.9  N/  119-  24-  19.4  W  (Pelato  Peak)  and  35-  02-  44.9  N/  118-  27-  38.3  W  (Observatory  Ridge).  Station  WQA519s  transmitter  is  located  at  36-  18-  4.8  N/  120-  24-  5.6  W  (Joaquin  Ridge). 

 24  See  47  C.  F.  R.    90.621(  b)(  2). 
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 parameters  such  as  antenna  height,  effective  radiated  power,  terrain  irregularities,  and  market  conditions.  25 
 10.  Petitioners  argue  that  the  Potato  Hill  transmitter  is  on  a  very  high  site  that  allows  for  free-space  transmission  in  the  San  Joaquin  Valley,  including  direct  line-  of-  sight  to  Petitioners  stations.  26  In 
 support,  Petitioners  have  submitted  engineering  statements  27  demonstrating  that  the  Seventeen  Licensees  operations  will  cause  interference  to  Petitioners  stations.  28 

 11.  In  opposition  to  the  Petition,  29  the  Seventeen  Licensees  argue  that  their  licenses  are  proper  because  the  distance  separation  to  the  Petitioners  stations  is  consistent  with  the  separations 
 permitted  by  the  short-  spacing  table  in  Section  90.621(  b)(  4).  30  We  agree  with  Petitioners  that  the  present  matter  is  governed  by  Section  90.621(  b)(  2),  rather  than  Section  90.621(  b)(  4).  31  Indeed,  the  short-  spacing 
 table  specifically  notes  that  Section  90.621(  b)(  2)  requires  greater  distance  separations  for  high  sites  in  California,  and  provides  that  Section  90.621(  b)(  2)  governs  in  the  event  of  a  conflict.  32 

 12.  We  also  agree  with  Petitioners  that  the  Seventeen  Licensees  should  not  have  been  authorized  to  operate  on  frequency  854.9125  MHz  at  Potato  Hill.  We  have  conducted  our  own 
 engineering  analysis,  which  confirms  the  conclusions  in  Petitioners  engineering  statements  that  facilities  operating  at  Potato  Hill  would  cause  harmful  interference  33  to  the  Petitioners  stations,  particularly  Station 

 25  See  47  C.  F.  R.    90.621(  b)(  2)(  ii). 
 26  Petition  at  3. 
 27  47  C.  F.  R.    1.106(  e)  provides  that: 

 Where  a  petition  for  reconsideration  is  based  upon  a  claim  of  electrical  interference,  under  appropriate  rules  in  this  chapter,  to  an  existing  station  or  a  station  for  which  a  construction  permit  is  outstanding,  such  petition,  in  addition  to 
 meeting  the  other  requirements  of  this  section,  must  be  accompanied  by  an  affidavit  of  a  qualified  radio  engineer.  Such  affidavit  shall  show,  either  by  following  the  procedures  set  forth  in  this  chapter  for  determining  interference  in 
 the  absences  of  measurements,  or  by  actual  measurements  made  in  accordance  with  the  methods  prescribed  in  this  chapter,  that  electrical  interference  will  be  caused  to  the  station  within  its  normally  protected  contour. 

 28  See  Statement  of  Mel  Freedman  (  Freedman),  Engineer  for  Felder  (dated  July  12,  2002),  attached  as  Exhibit  A; 
 and  Statement  of  Mel  Freedman,  Engineer  for  Bolthouse  (dated  July  12,  2002),  attached  as  Exhibit  B. 
 29  Opposition  of  Petition  for  Reconsideration  at  2-  3  (filed  Aug.  6,  2002)  (  Opposition).  We  agree  with  Petitioners 
 that  the  Opposition  was  untimely  filed.  See  Reply  to  Opposition  of  Petition  for  Reconsideration  at  2  (filed  Aug.  16,  2002)  (  Reply)  (citing  47  C.  F.  R.    1.106(  g)).  However,  to  ensure  a  complete  record  before  us,  we  will  consider 

 the  Opposition  and  arguments  therein.  Nonetheless,  we  take  this  opportunity  to  remind  parties  having  business  before  the  Commission  that  adherence  to  the  filing  requirements  specified  in  Commissions  rules  is  expected  and 
 that  non-  adherence  could  result  in  dismissal  of  responsive  pleadings. 
 30  Opposition  at  2-  3  (citing  47  C.  F.  R.    90.621(  b)(  4)). 

 31  See  Reply  at  4. 
 32  See  47  C.  F.  R.    90.621(  b)(  4)  note  1. 
 33  Our  rules  define  harmful  interference  as,  any  emission,  radiation,  or  induction  which  specifically  degrades, 
 obstructs,  or  interrupts  the  service  provided  by  such  stations.  47  C.  F.  R.    90.7. 
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 WQA519.  In  addition,  we  note  that  the  site  of  Station  WQA519  (Joaquin  Ridge)  is  listed  in  the  table  in  Section  90.621(  b),  and  that  the  table  prohibits  authorization  of  a  co-  channel  station  at  Blue  Ridge,  which 
 is  the  closest  site  on  the  table  to  Potato  Hill  (and  in  fact  is  farther  from  Joaquin  Ridge  than  Potato  Hill  is).  34  Thus,  the  conclusions  of  the  engineering  studies  are  consistent  with  the  table.  Consequently,  we 
 will  set  aside  the  grant  of  the  licenses  of  the  Seventeen  Licensees  with  respect  to  frequency  854.9125  MHz.  35 

 IV.  CONCLUSION 
 13.  We  grant  the  Informal  Complaint  to  the  extent  that  we  shall  set  aside  the  grant  to  Future  Comm  of  the  license  to  operate  Station  WPUI236.  In  other  respects,  the  Informal  Complaint  is  moot, 
 because  the  other  applications  at  issue  already  have  been  dismissed.  We  also  grant  the  Petition,  and  shall  set  aside  the  authorizations  of  the  Seventeen  Licensees  to  operate  at  Potato  Hill  on  frequency  854.9125 
 MHz. 
 V.  ORDERING  CLAUSES 
 14.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Sections  4(  i),  309,  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  309,  405,  and  Sections  1.41  and  1.106  of 
 the  Commission's  Rules,  47  C.  F.  R.    1.41,  1.106,  that  the  Informal  Complaint  filed  by  William  Bolthouse  Farms,  Inc.,  George  S.  Gillam,  and  Felder  Communications  on  March  12,  2002  IS  GRANTED 
 IN  PART  and  DISMISSED  AS  MOOT  IN  PART  to  the  extent  indicated  herein. 
 15.  IT  IS  FURTHER  ORDERED  that  the  grant  of  the  license  for  Station  WPUI236  IS  SET  ASIDE,  and  application  FCC  File  No.  0000726942,  filed  by  Future  Comm  on  January  8,  2002,  SHALL 
 BE  DISMISSED. 
 16.  IT  IS  FURTHER  ORDERED,  pursuant  to  Sections  4(  i)  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  405,  and  Section  1.106  of  the  Commissions  Rules,  47 
 C.  F.  R.    1.106,  that  the  Petition  for  Reconsideration  filed  by  William  Bolthouse  Farms,  Inc.,  and  Felder  Communications  on  July  18,  2002  IS  GRANTED. 

 17.  IT  IS  FURTHER  ORDERED  that  the  grants  of  the  licenses  for  Station  WPVC521,  Station  WPVC522,  Station  WPVC777,  Station  WPVC524,  Station  WPVC525,  Station  WPVC519, 
 Station  WPVC533,  Station  WPVC538,  Station  WPVC539,  Station  WPVC540,  Station  WPVC542,  Station  WPVC543,  Station  WPVC544,  Station  WPVC546,  Station  WPVC547,  Station  WPVC549,  and 
 Station  WPVC551  ARE  SET  ASIDE  in  part,  and  the  licenses  SHALL  BE  MODIFIED  by  removing  frequency  854.9125  MHz. 

 34  See  47  C.  F.  R.    90.621(  b).  Potato  Hill  is  approximately  10.2  km  from  Blue  Ridge,  and  is  closer  to  Joaquin  Ridge 
 by  approximately  9.4  km. 
 35  Because  we  agree  with  Petitioners  on  the  interference  issue,  we  need  not  address  Petitioners  other  allegations, 
 which  the  Seventeen  Licensees  dispute.  See  Opposition  at  4. 
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 18.  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 

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