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 Federal  Communications  Commission  DA  03-  1044 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 i2way  Request  for  Declaratory  Ruling  Regarding  the  Ten-  Channel  Limit 
 of  Section  90.  187(  e)  of  the  Commissions  Rules 
 Hexagram  Petition  to  Deny  i2way  Applications 


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 WT  Docket  No.  02-  196 


 ORDER 
 Adopted:  March  31,  2003  Released:  April  1,  2003 
 By  the  Chief,  Policy  and  Rules  Branch,  Commercial  Wireless  Division,  Wireless  Telecommunications  Bureau: 


 I.  INTRODUCTION 
 1.  On  June  7,  2002,  i2way  Corporation  (i2way)  filed  a  Request  for  Declaratory  Ruling  pursuant  to  Section  1.2  of  the  Commissions  rules,  seeking  clarification  of  the  ten-  channel  limit  set  forth 


 in  Section  90.  187(  e)  of  the  Commissions  rules  (i2way  Request).  1  In  this  Order,  we  grant  in  part  and  deny  in  part  i2ways  Request.  Specifically,  we  reject  i2ways  argument  that  Section  90.  187(  e)  does  not 
 limit  the  number  of  applications  that  can  be  filed  in  an  area.  Rather,  we  conclude  that  Section  90.187(  e)  limits  to  ten  the  number  of  channels  for  which  an  applicant  can  apply  within  a  service  area.  A  licensee 
 may  apply  for  additional  frequencies  in  that  same  service  area  only  if  it  certifies  that  it  has  constructed  and  placed  into  operation  all  licensed  channels  in  that  area.  We  grant,  however,  the  request  that  we  return 
 to  pending  status  certain  i2way  applications  that  were  returned  because  of  a  staff  mistake  during  the  application  review  process.  We  also  dismiss  the  petition  filed  by  Hexagram,  Inc.  on  February  28,  2002, 
 to  deny  certain  i2way  applications  (Hexagram  Petition)  2  because  it  was  not  timely  filed  and  does  not  allege  facts  sufficient  to  warrant  further  investigation. 


 1  Request  for  Declaratory  Ruling  filed  by  i2way  Corporation  (June  7,  2002).  Prior  to  the  submission  of  its  Request, 
 i2way  filed  a  number  of  individual,  substantially  similar  requests  for  declaratory  rulings,  each  arising  from  the  return  of  i2ways  applications  for  failure  to  meet  the  terms  of  Section  90.  187(  e)  of  the  Commissions  rules.  The 


 Commercial  Wireless  Divisions  Policy  and  Rules  Branch  dismissed  these  requests  because  i2way  filed  the  requests  electronically  as  attachments  to  i2ways  applications  via  the  Commissions  Universal  Licensing  System.  Wireless 
 Telecommunications  Bureau  Seeks  Comment  on  i2way  Corporations  Request  for  Declaratory  Ruling  Regarding  the  Ten-  Channel  Limit  of  Section  90.  187(  e),  Public  Notice,  17  FCC  Rcd  14541  (2002)  (i2way  Public  Notice). 
 Pleadings  associated  with  licensing  matters  may  not  be  electronically  filed  and  instead  are  required  to  be  filed  manually.  See  Certain  Actions  Provided  For  in  the  Commissions  Rules  Are  Not  Yet  Available  For  Electronic 
 Filing  via  the  Universal  Licensing  System  (ULS)  and  Must  Be  Filed  Manually,  Public  Notice,  16  FCC  Rcd  12,  886  (2001).  The  issues  raised  in  i2ways  prior  requests  are  essentially  the  same  issues  raised  in  the  i2way  Request. 
 i2way  Public  Notice,  17  FCC  Rcd  at  14542.  2 
 Petition  to  Deny  filed  by  Hexagram,  Inc.  (Feb.  28,  2002). 
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 II.  BACKGROUND 
 2.  Trunked  Operations  in  the  Industrial/  Business  Radio  Pool.  i2way  filed  multiple  applications  seeking  authority  to  provide  trunked  operations  in  the  150-  174  MHz  and  450-  470  MHz 


 bands.  3  Frequencies  on  those  bands  are  divided  between  the  Industrial/  Business  Radio  Pool  and  Public  Safety  Radio  Pool  and  are  authorized  on  a  shared  basis.  4  While  license  applications  for  conventional 
 operations  in  the  Industrial/  Business  Radio  Pool  are  generally  limited  to  one  frequency  or  one  pair  of  frequencies,  5  Section  90.187(  e)  of  the  Commissions  rules  limits  single  applications  for  trunked 
 operations  to  ten  channels  in  the  bands  between  150  MHz  and  512  MHz  (except  220-  222  MHz).  6  Subsequent  applications  for  trunked  operations  in  those  bands  are  also  limited  to  ten  channels  and  must 
 be  accompanied  by  a  certification  that  all  of  the  applicants  existing  channels  authorized  for  trunked  operation  have  been  constructed  and  placed  in  operation.  7  In  adopting  the  ten-  channel  limit  for  trunked 
 operations,  the  Commission  recognized  that  large  public  safety  applicants  may  require  more  than  ten  channels  at  a  single  location.  8  As  a  result,  Section  90.187(  e)  allows  public  safety  applicants  to  apply  for 
 more  than  ten  channels  at  a  single  location,  provided  the  applicant  makes  a  showing  of  sufficient  need.  9 
 3.  i2way  Request  for  Declaratory  Ruling  and  Hexagram  Petition  to  Deny.  i2way  states  in  its  Request  that  it  intends  to  use  both  full-  power  and  lower-  power  frequencies  to  deploy  a  nationwide 


 3  i2way  Request  at  2.  i2way  explains  that  the  authority  sought  in  each  application  is  designed  to  fulfill  a  specialized 
 role  in  its  overall  system  design.  Id.  i2way  has  also  filed  a  number  of  applications  seeking  authority  to  provide  conventional  operations  as  well  as  trunked  operations  on  exclusive  frequencies.  The  applications  were  accepted  for 


 filing  on  December  19,  2001.  Wireless  Telecommunications  Bureau  Site-  By-  Site  Accepted  for  Filing,  Public  Notice,  Report  No.  1047  (Dec.  19,  2001). 
 4  Section  90.  173(  a)  of  the  Commissions  rules  provides  that  [  e]  xcept  as  otherwise  provided  ,  frequencies 
 assigned  to  land  mobile  stations  are  available  for  shared  use  only  and  will  not  be  assigned  for  the  exclusive  use  of  any  licensee.  47  C.  F.  R.    90.  173(  a). 


 5  47  C.  F.  R.    90.  35(  e).  Section  90.  35(  e)  provides  that  normally  only  one  frequency,  or  pair  of  frequencies  in  the 
 paired  frequency  mode  of  operation,  will  be  assigned  for  mobile  service  operations  by  a  single  applicant  in  a  given  area.  The  assignment  of  an  additional  frequency  or  pair  of  frequencies  will  be  made  only  upon  a  satisfactory 


 showing  of  need.  Id.  6 
 47  C.  F.  R.    90.187(  a);  see  In  the  Matter  of  1998  Biennial  Regulatory  Review    47  C.  F.  R.  Part  90    Private  Land  Mobile  Radio  Services;  Replacement  of  Part  90  By  Part  88  To  Revise  the  Private  Land  Mobile  Radio  Services  and 


 Modify  the  Policies  Governing  Them;  and  Examination  of  Exclusivity  and  Frequency  Assignment  Policies  of  the  Private  Land  Mobile  Services,  Report  and  Order  and  Further  Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  16673, 
 16685-  86,    22-  25  (2000)  (Part  90  Biennial  Review  R&  O).  7 
 47  C.  F.  R.    90.187(  e).  8 
 In  the  Matter  of  Replacement  of  Part  90  By  Part  88  To  Revise  the  Private  Land  Mobile  Radio  Services  and  Modify  the  Policies  Governing  Them;  and  Examination  of  Exclusivity  and  Frequency  Assignment  Policies  of  the  Private 


 Land  Mobile  Services,  14  FCC  Rcd  10922,  10931,    18  (1999)  (Part  90  Refarming  Third  MO&  O).  9 
 47  C.  F.  R.    90.  187(  e).  Section  90.  187(  e)  provides  that  [  n]  o  more  than  10  channels  for  trunked  operation  in  the  Industrial/  Business  Pool  may  be  applied  for  in  a  single  application.  Subsequent  applications,  limited  to  an 


 additional  10  channels  or  fewer,  must  be  accompanied  by  a  certification,  submitted  to  the  certified  frequency  coordinator  coordinating  the  application,  that  all  of  the  applicant's  existing  channels  authorized  for  trunked  operation 
 have  been  constructed  and  placed  in  operation.  Certified  frequency  coordinators  are  authorized  to  require  documentation  in  support  of  the  applicant's  certification  that  existing  channels  have  been  constructed  and  placed  in 
 operation.  Applicants  in  the  Public  Safety  Pool  may  request  more  than  10  channels  at  a  single  location,  provided  that  any  application  for  more  than  10  Public  Safety  Pool  channels  must  be  accompanied  by  a  showing  of  sufficient 
 need.  The  requirement  for  such  a  showing  may  be  satisfied  by  submission  of  loading  studies  demonstrating  that  requested  channels  in  excess  of  10  will  be  loaded  with  50  mobiles  per  channel  within  a  five  year  period  commencing 
 with  grant  of  the  application.  Id. 
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 system  for  assigning  frequency  pairs  to  be  used  by  two-  way  customers.  10  The  Commercial  Wireless  Divisions  Licensing  and  Technical  Analysis  Branch  returned  certain  i2way  applications  because  the 
 applications  were  found  to  be  in  violation  of  Section  90.  187(  e).  Specifically,  certain  applications  were  returned  because  they  were  filed  while  other  applications  were  pending  for  the  same  service  area,  and 
 other  applications  were  returned  because  i2way  failed  to  provide  the  necessary  construction  certifications  for  its  licensed  facilities  where  its  application  sought  licensing  authority  in  that  licensed  stations  service 
 area.  11  In  response  to  the  return  of  these  applications,  i2way  seeks  clarification  on  whether  the  ten-channel  limit  compels  the  return  or  dismissal  of  applications  in  situations  where  a  single  applicant  has 
 filed  multiple  applications,  each  requesting  10  channels,  for  different  sites  within  the  same  general  service  area.  12  The  Commercial  Wireless  Division  placed  i2ways  Request  on  public  notice  on  July  29,  2002.  13 
 In  response  to  the  public  notice,  The  Land  Mobile  Communications  Council  (LMCC)  and  Industrial  Telecommunications  Association  (ITA)  filed  comments,  and  Motorola,  Inc.  (Motorola)  and  i2way  filed 
 reply  comments.  14  Finally,  the  Hexagram  Petition  requests  that  the  Commission  deny  sixty-  six  of  i2ways  applications  unless  i2way  shows  that  it  can  protect  all  incumbent  users,  including  Hexagram.  15 


 III.  DISCUSSION 
 4.  We  reject  i2ways  claim  that  Section  90.  187(  e)  is  only  a  limitation  on  the  number  of  frequencies  for  which  a  licensee  can  apply  in  one  application,  and  not  a  limitation  on  the  number  of 


 applications  that  can  be  filed  simultaneously  within  the  same  area.  16  None  of  the  other  commenters  in 
 10  i2way  Request  at  2.  i2way  also  states  that  the  requested  channels  will  promote  competition  in  the  Commercial 
 Mobile  Radio  Service,  including  competition  with  cellular  companies.  Id.  at  8-  9.  11 
 See  i2way  Public  Notice,  17  FCC  Rcd  at  14541.  i2way  provides  file  numbers  for  twenty-  six  applications  and  states  that  these  file  numbers  reflect  i2way  Corporations  best  efforts  to  identify  all  of  the  applications  found  to  be 


 in  violation  of  the  10-  channel  limit  set  forth  in  Section  90.  187(  e).  Id.  at  n.  1.  12 
 i2way  Request  at  1-  2.  13 
 i2way  Public  Notice,  17  FCC  Rcd  14541  (2002).  In  the  i2way  Public  Notice,  the  Commission  designated  i2ways  Request  and  the  applications  relevant  to  Hexagrams  Petition  as  permit-  but-  disclose  proceedings  that  are  governed 


 by  Section  1.1206  of  the  Commissions  rules.  Id.  at  14543.  i2way  also  has  a  number  of  applications  pending  for  Commercial  Mobile  Radio  Service  authorizations  that  are  not  among  the  twenty-  six  file  numbers  listed  in  the 
 caption  of  the  i2way  Request.  In  the  interest  of  administrative  efficiency  and  minimizing  the  potential  for  any  confusion  among  interested  parties,  and  because  i2ways  applications  implicate  similar  issues,  the  Commission  has 
 designated  all  of  i2ways  current  pending  applications  as  permit-  but-  disclose  proceedings  under  its  ex  parte  rules.  Id.  at  14543,  n.  18. 
 14  Comments  of  the  Land  Mobile  Communications  Council  (Aug.  28,  2002)  (LMCC  Comments);  Comments  of 
 Industrial  Telecommunications  Association,  Inc.  (Aug.  28,  2002)  (ITA  Comments);  Reply  Comments  of  Motorola,  Inc.  (Sept.  12,  2002)  (Motorola  Reply  Comments);  and  Reply  Comments  of  i2way  Corporation  (Sept.  12,  2002) 


 (i2way  Reply  Comments).  Several  parties  also  filed  ex  parte  comments  in  this  proceeding,  including  Entranosa  Water  &  Wastewater  Association,  Letter  from  John  L.  Jones,  Entranosa  Water  &  Wastewater  Association,  to 
 Senator  Jeff  Bingaman  (Feb.  26,  2002)  (Entranosa  Ex  Parte);  Buck  Electric  Co.,  Letter  from  Robert  De  Buck,  Buck  Electric  Co.,  to  Senator  Peter  Domenici  (Feb.  21,  2002)  (Buck  Electric  Ex  Parte);  KNS  Communications 
 Consultants,  Electronic  Message  from  L.  Sue  Scott-  Thomas,  KNS  Communications  Consultants,  to  Terry  Fishel,  FCC  (Jan.  31,  2002)  (KNS  Ex  Parte);  Denver  Water,  Letter  from  Gayle  Heazlett,  Denver  Water,  to  Terry  L.  Fishel, 
 FCC  (Aug.  26,  2002)  (Denver  Water  Ex  Parte);  and  Letter  from  Mitchell  Lazarus,  Counsel  for  Hexagram,  Inc.,  to  Marlene  H.  Dortch,  Secretary  FCC  (Oct.  25,  2002)  (Hexagram  Ex  Parte). 
 15  Hexagram  Petition  at  4.  Hexagram  is  a  vendor  of  automatic  meter  reading  systems  and  operates  Part  90 
 transmitters  under  the  low-  power  rules.  Id.  at  1-  2.  Hexagram  states  that  it  objects  to  any  [i2way]  application  that  proposes  to  share  frequencies  with  the  systems  of  Hexagram  or  its  customers.  Hexagram  Ex  Parte  at  1. 


 16  i2way  Request  at  4-  5  and  7-  8.  i2way  states  that  it  has  filed  multiple  applications  for  the  same  areas  in  many  parts 
 of  the  country  because  its  system  requires  a  complement  of  various  radio  facilities  within  the  same  metropolitan  area.  i2way  Request  at  2. 
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 this  proceeding  share  i2ways  interpretation  of  the  ten-  channel  rule.  LMCC,  ITA,  and  Motorola  state  that  Section  90.187(  e)  limits  an  applicant  to  a  request  for  ten  initial  channels  in  an  area  until  those  channels 
 are  constructed  and  operational.  17  They  argue  that  spectrum  efficiency  is  important  because  the  frequencies  are  shared,  and  that  licensees  are  required  to  construct  before  requesting  additional 
 channels.  18 
 5.  To  support  its  interpretation  of  the  ten-  channel  limit,  i2way  focuses  solely  on  the  first  sentence  of  Section  90.187(  e)  to  the  exclusion  of  all  other  requirements  in  Section  90.187.  The  first 


 sentence  limits  to  ten  the  number  of  channels  permitted  in  a  single  application  for  trunked  operations.  Section  90.187(  e),  however,  also  describes  the  circumstances  under  which  a  licensee  may  apply  for  more 
 than  ten  channels.  Section  90.187(  e)  clearly  provides  that  subsequent  applications,  limited  to  an  additional  10  channels  or  fewer,  must  be  accompanied  by  a  certification  ...  that  all  of  the  applicants 
 existing  channels  authorized  for  trunked  operation  have  been  constructed  and  placed  in  operation.  19  Section  90.187(  e)  further  provides  that  certified  frequency  coordinators  may  require  documentation  in 
 support  of  an  applicants  certification  that  the  applicant  has  constructed  and  placed  into  operation  the  initial  ten  channels  before  processing  another  application.  20  Thus,  a  licensee  must  construct  its  maximum 
 of  ten  authorized  channels  before  submitting  an  application  for  additional  channels. 
 6.  We  also  reject  i2ways  claim  that  Section  90.187  does  not  define  the  area  relevant  to  the  ten-  channel  limit.  i2way  argues  that  a  rulemaking  proceeding  is  required  to  explain  how  the  Commission 


 intends  to  define  the  service  area  when  processing  applications  for  trunked  operations  under  Section  90.187.  21  We  disagree.  Section  90.187(  e)  limits  single  applications  to  ten  channels  at  single  locations.  22 
 The  license  limit  of  ten  channels  at  a  single  location  is  a  function  of  the  Commissions  process  for  licensing  trunked  systems  under  Section  90.187  on  a  site-  specific  basis.  Parties  file  single  applications 
 and  individual  licenses  are  granted  at  single  locations.  Section  90.187(  b)  delineates  service  area  contours  at  37  dBu  and  39  dBu,  respectively,  for  each  VHF  and  UHF  station  location.  23  Thus,  licensees  and 
 frequency  coordinators  must  determine  the  service  areas  around  the  single  location  for  which  an  applicant  is  licensed  and  the  ten-  channel  limit  of  Section  90.187(  e)  applies  to  that  service  area. 


 17  LMCC  Comments  at  3-  4;  ITA  Comments  at  1,  5;  Motorola  Reply  Comments  at  2. 
 18  LMCC  Comments  at  3-  4;  ITA  Comments  at  3-  4;  Motorola  Reply  Comments  at  2. 
 19  See  Valley  Industrial  Communications,  Inc.,  Order  on  Reconsideration,  15  FCC  Rcd  14823,  14824,    4,  n.  10 
 (PSPWD  WTB  2000)  (stating  that  Section  90.  187(  e)  limits  the  number  of  trunked  channels  that  can  be  requested  in  one  application  and  noting  that  additional  channels  may  be  requested  once  the  first  ten  are  placed  in  operation). 


 20  47  C.  F.  R.    90.  187(  e).  In  adopting  the  rule,  the  Commission  concluded  that  the  maximum  number  of  channels 
 that  may  initially  be  requested  for  any  given  trunked  system  is  ten.  Part  90  Refarming  Third  MO&  O,  14  FCC  Rcd  at  10930,    18.  The  Commission  further  explained  that  a  ten-  channel  limit  would  not  preclude  an  applicant  from 


 requesting  additional  channels  in  subsequent  applications  as  long  as  the  applicant  files  a  certification  that  the  channels  for  which  it  was  authorized  have  been  constructed  and  placed  into  operation.  Id.  at  10930-  31,    18. 
 21  i2way  Request  at  7.  i2way  asserts  that  interpreting  Section  90.  187(  e)  to  prohibit  the  filing  of  multiple  applications 
 within  an  area  violates  the  notice  and  comment  provisions  of  the  Administrative  Procedure  Act,  5  U.  S.  C.    551  et  seq.,  and  expands  Section  90.  187(  e)  beyond  its  logical  limits.  i2way  Request  at  7-  9. 


 22  We  also  note  that  while  the  first  sentence  in  the  rule  section  limits  single  applications  to  ten  channels,  the  fourth 
 sentence,  which  allows  public  safety  applicants  to  request  more  than  ten  channels  at  a  single  location,  expressly  limits  single  applications  to  single  locations.  47  C.  F.  R.    90.  187(  e). 


 23  47  C.  F.  R.    90.187(  b).  Section  90.  205  also  sets  out  the  maximum  allowable  station  power  level  depending  on  the 
 stations  tower  height  and  licensed  service  area  for  operations  in  the  150-  174  MHz  and  450-  470  MHz  bands.  Id.    90.  205,  Tables  1  and  2. 
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 7.  The  requirement  that  licensees  limit  the  number  of  channels  permitted  in  a  single  application  would  have  very  little  meaning  if  we  were  to  interpret  the  rule  to  allow  applicants  to  file 
 multiple  applications  simultaneously  at  a  single  location.  Under  i2ways  interpretation,  there  is  no  distinction,  for  example,  between  five  applications  seeking  authority  to  operate  ten  channels  each,  and 
 one  application  seeking  authority  to  operate  fifty  channels  in  any  given  service  area.  Moreover,  i2way  does  not  explain  how  the  construction  notification  requirement  would  apply  if  we  allowed  simultaneously 
 filed  multiple  applications.  We  also  reject  i2ways  assertion  that  an  interpretation  of  the  rule  as  a  prohibition  against  multiple  applications  in  a  single  area  would  violate  the  Administrative  Procedure  Act 
 (APA).  24  The  Commission  adopted  the  requirements  for  trunked  operations  under  Section  90.187  in  notice  and  comment  proceedings  in  compliance  with  the  APA  and  Commission  rules.  25  For  the  same 
 reason,  we  reject  i2ways  argument  that  the  Commission  has  not  provided  clear  notice  of  the  standard  used  as  the  basis  for  dismissing  i2ways  applications.  26 


 8.  In  addition,  we  reject  i2ways  claim  that  the  ten-  channel  requirement  does  not  apply  to  decentralized  trunked  systems  on  shared  spectrum.  i2way  argues  that  the  Commission  did  not 
 contemplate  decentralized  systems  at  the  time  it  adopted  the  ten-  channel  limit  27  and  that,  because  the  ten-channel  requirement  was  adopted  to  prevent  the  warehousing  of  spectrum,  and  shared  spectrum  cannot  be 
 warehoused,  the  limitation  does  not  apply  to  shared  spectrum.  28  We  disagree.  After  adopting  the  ten-channel  limit  for  trunked  systems,  the  Commission  found  that  industry  members  were  operating 
 decentralized  and  hybrid  trunked  systems  in  addition  to  centralized  trunked  systems.  29  In  July  2000,  after  seeking  further  comment,  the  Commission  revised  the  definition  of  trunked  systems  to  include 
 centralized,  decentralized,  and  hybrid  trunked  systems  and  stated  that  all  three  systems  are  subject  to  Section  90.187.  30  Because  the  rule  applies  to  all  trunked  systems,  including  decentralized  operations  in 
 the  Industrial/  Business  Radio  Pool,  it  is  also  clear  that  Section  90.187(  e)  applies  to  shared  spectrum.  31 
 24  i2way  Request  at  7. 
 25  See  supra  notes  6  and  8. 
 26  i2way  Request  at  8. 
 27  i2way  Request  at  6.  Motorola  also  asserts  that  the  ten-  channel  limit  only  applies  to  centralized  trunked 
 operations.  Motorola  Reply  Comments  at  3.  28 
 i2way  Request  at  5-  7.  The  Commission  was  guided  by  industry  consensus  when  it  adopted  the  ten-  channel  limit  to  prevent  the  warehousing  of  spectrum.  Part  90  Refarming  Third  MO&  O,  14  FCC  Rcd  at  10930,    18. 


 29  The  Commission  has  previously  stated  that  in  a  centralized  trunked  system,  the  base  station  controller  provides 
 dynamic  channel  assignments  by  automatically  searching  all  channels  in  the  system  and  assigning  to  a  user  an  open  channel  within  that  system.  In  a  decentralized  trunked  system,  which  is  also  a  system  of  dynamic  channel 


 assignment,  the  system  continually  monitors  the  assigned  channels  for  activity  both  within  the  trunked  system  and  outside  the  trunked  system,  and  transmits  only  when  an  open  channel  is  found.  A  hybrid  trunked  system  is  one 
 where  at  least  one  of  the  frequencies  being  trunked,  but  not  all  the  frequencies  being  trunked,  requires  monitoring  to  prevent  harmful  interference  to  other  trunked  systems.  Part  90  Biennial  Review  R&  O,  15  FCC  Rcd  at  16685-  86,   
 25;  Licensing  Trunked  Radio  Systems  Operating  Between  150-  512  MHz,  Public  Notice,  15  FCC  Rcd  22062,  22062  at  n.  1  (2000);  Wireless  Telecommunications  Bureau  Establishes  a  New  Station  Class  Code  in  Connection  with 
 Licensing  Trunked  Radio  Systems  Operating  between  150-  512  MHz,  Public  Notice,  16  FCC  Rcd  7515,  7515  at  n.  1  (2001). 
 30  Part  90  Biennial  Review  R&  O,  15  FCC  Rcd  at  16685-  86    22-  26.  The  application  of  Section  90.  187  to  all 
 trunked  systems  became  effective  on  November  12,  2000.  60  Fed.  Reg.  60869  (Oct.  13,  2000).  31 
 Commenters  raise  concerns  that  i2ways  interpretation  of  Section  90.187(  e)  would  allow  licensees  to  warehouse  shared  spectrum  and  its  proposed  system  could  overload  already  extensively  used  shared  channels.  ITA  argues  that 


 spectrum  efficiency  is  a  major  concern  to  industry  because  of  the  limited  quantity  and  high  demand  for  spectrum.  ITA  Comments  at  3.  LMCC  and  Motorola  argue  that  the  ten-  channel  limit  balances  concerns  with  warehousing  and 
 flexibility.  LMCC  Comments  at  4,  Motorola  Reply  Comments  at  2.  Moreover,  LMCC  states  that  without  the  (continued....) 
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 Significantly,  the  Commission  did  not  modify  Section  90.187  to  limit  application  of  the  ten-  channel  rule  to  centralized  systems  operating  on  an  exclusive  basis  when  it  revised  the  definition  of  trunked  systems.  32 
 Arguing  now  that  the  ten-  channel  limit  under  Section  90.187(  e)  does  not  apply  to  decentralized  trunked  systems  is  effectively  a  late-  filed  petition  for  reconsideration  of  a  Commission  order  that  was  released 
 over  two  years  ago. 
 9.  Further,  we  will  not  grant  i2way  relief  on  the  basis  of  its  assertion  that  the  Commissions  current  interpretation  of  Section  90.187(  e)  will  not  afford  i2way  sufficient  spectrum  to  make  its  proposed 


 operations  successful.  33  This  argument  is  clearly  irrelevant  to  any  consideration  of  how  we  should  interpret  the  Commissions  rules.  We  further  note  that  i2way  has  neither  sought  a  waiver  of  Commission 
 rules  limiting  the  number  of  applications  that  may  be  filed  nor  provided  information  in  its  Request  to  justify  the  grant  of  a  waiver. 


 10.  Because  we  find  no  basis  on  which  to  grant  i2ways  Request  with  regard  to  the  ten-channel  limit  for  trunked  operations  below  512  MHz,  we  deny  the  Request,  in  part,  and  direct  the 
 Licensing  and  Technical  Analysis  Branch  to  process  i2ways  applications  in  compliance  with  Section  90.187.  i2way  applications  that  do  not  comply  with  Section  90.187(  e)  shall  not  be  granted. 


 11.  We  grant  the  i2way  Request,  however,  to  the  extent  that  certain  of  its  applications  for  150-  174  MHz  were  returned  based  on  a  misreading  of  the  applications  as  requesting  thirty 
 frequencies.  34  Specifically,  certain  applications  filed  by  i2way  in  the  150-  174  MHz  bands  requested  licensing  authority  for  ten  base  station  frequencies,  ten  mobile  frequencies,  and  ten  frequencies  that  would 
 be  used  for  talk  around  capability.  i2way  contends  that  the  talk-  around  frequencies  were  a  redundant  set  of  frequencies  from  the  other  base  station  and  mobile  frequencies.  35  We  conclude  that  these 
 applications  are  deemed  to  request  ten  channels  and  may  be  processed  upon  release  of  this  item  if  the  applications  otherwise  meet  Commission  requirements,  including  Section  90.187(  e). 


 12.  Finally,  we  dismiss  Hexagrams  Petition  to  Deny,  which  seeks  interference  protection  for  all  co-  channel  licensees  from  i2ways  operations  in  the  450-  470  MHz  bands.  Section  1.939  of  the 
 Commissions  rules  provides  that  petitions  to  deny  must  be  filed  no  later  than  30  days  after  the  date  of  the  Public  Notice  listing  the  application  or  major  amendment  to  the  application  as  accepted  for  filing.  36 


 (...  continued  from  previous  page)  application  of  the  ten-  channel  limitation  conventional  and  trunked  licensees  alike  could  be  severely  compromised. 
 LMCC  Comments  at  4.  A  number  of  ex  parte  filings  oppose  i2ways  applications  or  Request  and  warn  that  i2ways  proposal  could  overload  shared  channels.  Entranosa  Ex  Parte  (stating  that  the  large  number  of  frequencies  being 
 sought  by  i2way  in  the  Albuquerque  area  would  likely  overload  the  use  of  the  frequencies  used  by  rural  systems  and  others,  which  could  result  in  false  signals  being  generated  and  interrupting  our  operations);  Buck  Electric  Ex 
 Parte  (stating  that  the  large  number  of  frequencies  being  sought  by  i2way  in  the  Denver  area  could  lead  to  the  overloading  of  radio  frequencies,  which  could  shut  down,  or  disable  the  operation  and  supply  of  water  to 
 communities  in  the  affected  area);  KNS  Ex  Parte  (stating  that  the  i2way  system  could  interfere  with  alarm  systems);  Denver  Water  Ex  Parte  (opposing  the  i2way  Request  and  multiple  applications  for  frequencies  filed  by 
 i2way,  indicating  that  Denver  Water  depends  on  telemetry  channels  to  monitor  and  control  its  water  system);  Hexagram  Ex  Parte  (opposing  i2way  applications  that  do  not  provide  protection  from  interference  for  incumbent 
 low-  power  users,  including  Hexagram).  32 
 Part  90  Biennial  Review  R&  O,  15  FCC  Rcd  at  16685-  86,    25-  27.  33 
 i2way  Request  at  8-  9.  34 
 We  rejected  four  applications  because  the  applications  sought  authority  to  operate  on  more  than  ten  channels.  The  file  numbers  are  0000400857,  0000401688,  0000402494,  and  0000609619. 


 35  i2way  Request  at  3-  4. 
 36  47  C.  F.  R.    1.939(  a)(  2). 
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 While  most  of  the  applications  listed  in  Hexagrams  Petition  were  filed  in  January  2001,  the  public  notice  accepting  the  latest  amendments  to  the  applications  listed  in  Hexagrams  Petition  was  released  December 
 19,  2001.  37  The  deadline  for  filing  petitions  to  deny,  therefore,  was  January  18,  2002.  Hexagram  filed  its  Petition  on  February  28,  2002,  nearly  six  weeks  late.  Although  Hexagram  filed  its  Petition  with  a  request 
 to  accept  the  Petition  as  late-  filed,  Hexagram  does  not  provide  any  explanation  for  filing  its  Petition  six  weeks  late.  38  We  therefore  deny  Hexagrams  request  because  it  provides  no  basis  on  which  to  grant  the 
 request. 
 13.  Moreover,  we  reject  the  Petition  for  failure  to  provide  allegations  of  fact  sufficient  to  make  a  prima  facie  showing  that  grant  of  the  applications  would  be  inconsistent  with  the  public  interest.  39 


 In  its  Petition,  Hexagram  describes  how  its  data  is  transmitted,  but  does  not  provide  any  specific  information  on  which  of  its  licenses  would  be  affected  or  which  of  the  applications  listed  in  Hexagrams 
 Petition,  if  granted,  would  specifically  infringe  on  Hexagrams  authority  to  operate  under  any  of  those  licenses.  40  We  find  Hexagrams  general  statements  of  facts  insufficient  to  warrant  further  investigation. 
 Accordingly,  we  dismiss  Hexagrams  Petition  and  all  pleadings  related  to  the  Petition.  41 
 14.  While  we  are  dismissing  Hexagrams  Petition  on  procedural  grounds,  we  also  reject  Hexagrams  plea  to  enforce  i2ways  promise  not  to  interfere  with  any  other  co-  channel  licensees 


 operations  regardless  of  the  technology  used  42  A  promise,  in  this  case,  is  not  relevant  because  the  Commission  has  technical  rules  that  govern  the  protection  required  against  harmful  interference  between 
 co-  channel  licensees.  43  We  decline  in  this  proceeding  to  provide  protection  beyond  that  afforded  under  the  Commissions  rules  for  secondary  or  co-  primary  operations  in  the  450-  470  MHz  bands.  Finally,  we 


 37  Wireless  Telecommunications  Bureau  Site-  by-  Site  Accepted  for  Filing,  Public  Notice,  Report  No.  1047  (Dec.  19, 
 2001).  Most  of  the  applications  were  originally  filed  in  January  2001.  38 
 Hexagram  contends  that  its  filing  is  not  late,  arguing  that  the  public  notice  accepting  the  amendments  to  the  applications  did  not  give  actual  notice    of  the  issues  that  give  rise  to  this  opposition.  Hexagram  then  states  that 


 [  i]  n  the  alternative,  Hexagram  respectfully  moves  for  acceptance  of  this  Petition  out  of  time  without  providing  any  explanation.  Hexagram  Petition  at  1-  2. 
 39  See  47  C.  F.  R.    1.  939(  d). 
 40  Hexagram  explains  that  its  products  are  battery  powered  on  a  very  low  duty  cycle  (20-  year  battery  life), 
 transmitting  a  data  burst  of  fewer  than  100  milliseconds  two  or  three  times  a  day.  Hexagram  Petition  at  3.  Hexagram  argues  that  i2ways  method  of  monitoring  for  vacant  channels  in  the  450-  512  MHz  bands  will  miss 


 Hexagrams  extremely  short  transmissions  or  misclassify  them  as  noise.  Hexagram  asserts  that,  as  a  result,  the  i2way  system  will  mistakenly  read  these  channels  as  vacant  and  cause  interference  to  Hexagrams  customers.  Id.  at 
 4.  Hexagram  also  states  that  i2ways  system  may  seize  these  channels  for  periods  of  time  (30-  60  seconds)  that  may  disrupt  Hexagram  communications.  Letter  from  Mitchell  Lazarus,  Hexagram,  to  William  Caton,  Acting  Secretary, 
 FCC  at  2  (Mar.  5,  2002).  41 
 i2way  also  filed  an  untimely  Opposition  to  the  Hexagram  Petition  on  April  1,  2002,  along  with  a  motion  to  accept  its  filing  as  late,  Motion  for  Acceptance  of  Late-  Filed  Opposition  to  Petition  to  Deny  of  Hexagram,  Inc.  filed  by 


 i2way  Corporation  (Apr.  4,  2002).  Because  we  are  dismissing  the  Petition,  this  request  is  moot.  42 
 Hexagram  states  that  in  a  letter  attached  to  some  of  the  contested  applications  i2way  claims  to  protect  all  co-channel  users,  whether  employing  modern  digital  systems  or  legacy  analog  equipment.    Hexagram  Petition  at  3, 


 n.  4  (citing  Letter  from  Frederick  J.  Day,  Counsel  for  i2way  Corporation  to  FCC  at  Enclosure  1  (June  5,  2001)).  In  its  Reply,  Hexagram  characterizes  the  statement  as  a  promise  to  protect  all  other  users  regardless  of  their  primary 
 or  secondary  status.  Hexagram  Reply  at  2.  In  its  ex  parte  presentation,  Hexagram  contends  that  i2ways  system  may  interfere  with  Part  90  low-  power  devices  that  operate  at  an  extremely  low  duty  cycle  and  require  that  a  channel 
 be  available  when  there  is  an  emergency.  Hexagram  Ex  Parte  at  1-  2.  Hexagram  requests  that  the  Commission  direct  i2way  to  protect  all  incumbent  users,  including  low-  power  users  with  short  transmissions,  from  interference. 
 Hexagram  Petition  at  4;  Hexagram  Ex  Parte  at  3-  5.  43 
 See  e.  g.,  47  C.  F.  R.    90.  7,  90.  173(  a)  and  (b),  90.  403(  e). 
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 reject  i2ways  argument  that  Hexagrams  licenses  should  be  revoked  for  failure  to  monitor  its  channels  to  prevent  harmful  interference  to  other  stations  because  the  argument  is  outside  the  scope  of  this 
 proceeding. 
 IV.  ORDERING  CLAUSES 
 15.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  4(  i)  and  303(  r)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  303(  r),  and  Sections  0.331  and  1.2  of  the 


 Commissions  rules,  47  C.  F.  R.    0.  331,  1.2,  the  Request  for  Declaratory  Ruling  filed  by  the  i2way  Corporation  on  June  7,  2002,  is  GRANTED  to  the  extent  described  herein  and  otherwise  DENIED. 


 16.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Sections  4(  i),  303(  r),  and  309(  d)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  303(  r),  309(  d),  and  Sections  0.331  and 
 1.939  of  the  Commissions  rules,  47  C.  F.  R.    0.331,  1.939,  the  Petition  to  Deny  filed  by  Hexagram,  Inc.  on  February  28,  2002,  is  DISMISSED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Paul  DAri  Chief,  Policy  and  Rules  Branch 
 Commercial  Wireless  Division  Wireless  Telecommunications  Bureau 
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