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 Federal  Communications  Commission  DA  05-  477 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 OCCIDENTAL  PERMIAN  LTD 
 Application  for  Assignment  of  Licenses  for  Commercial  800  MHz  Specialized  Mobile 
 Radio  Frequencies,  and  Request  for  Waiver  of  Section  90.621(  b)  of  the  Commissions  Rules; 
 and 
 NEXTEL  COMMUNICATIONS,  INC. 
 Request  for  Waiver  of  Section  90.617of  the  Commissions  Rules 


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 FCC  File  No.  0001072079 


 ORDER 
 Adopted:  February  24,  2005  Released:  February  25,  2005 
 By  the  Chief,  Public  Safety  and  Critical  Infrastructure  Division,  Wireless  Telecommunications  Bureau: 
 1.  In  this  Order,  we  address  the  above-  captioned  application  filed  by  Occidental  Permian,  Inc.  (Occidental),  and  requests  for  waiver  filed  by  Nextel  Communications,  Inc.  (Nextel)  and  Occidental 
 (Nextel  Waiver  Request  and  Occidental  Waiver  Request,  respectively).  1  For  the  reasons  set  forth  below,  we  grant  the  waiver  requests. 


 2.  Nextel  Waiver  Request.  Prior  to  1995,  intercategory  sharing  2  enabled  Specialized  Mobile  Radio  (SMR),  Business,  Industrial/  Land  Transportation  (I/  LT),  and  Public  Safety  eligibles  in  the 
 806-  821/  851-  866  MHz  bands  to  apply  for  frequencies  in  other  service  categories  regardless  of  eligibility  criteria  under  certain  circumstances.  3  In  December  of  1995,  however,  the  Commission  eliminated 
 intercategory  sharing  for  SMR  applicants,  4  and  adopted  a  geographic  area  licensing  approach  (Economic 


 1  The  waiver  requests  were  submitted  as  attachments  to  the  application.  See  Nextel  Communications,  Inc., 
 Request  for  Waiver  of  Section  90.617(  d)  Eligibility  Restrictions  to  Permit  Use  of  SMR  Channels  for  Private  Industrial/  Land  Transportation  Operations  (Nextel  Waiver  Request),  and  Occidental  Permian  Ltd.,  Request  Waiver 


 of  the  Separation  Rules  Contained  in  Section  90.621(  b)(  4),  FCC  File  No.  0001072079  (Occidental  Waiver  Request)  (filed  Oct.  28,  2002,  as  amended  on  Mar.  28,  2003,  July  25,  2003,  and  July  30,  2003). 


 2  See  47  C.  F.  R.    90.621(  e). 
 3  See  47  C.  F.  R.    90.615  (a)  and  90.621(  e). 
 4  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in  the  800 
 MHz  Frequency  Band,  First  Report  and  Order,  Eighth  Report  and  Order,  and  Second  Further  Notice  of  Proposed  Rulemaking,  PR  Docket  No.  93-  144,  11  FCC  Rcd  1463,  1536-  37    138-  142  (1995)  (800  MHz  Report  and 


 Order);  47  C.  F.  R.    90.621(  e)(  1). 
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 Areas  (EAs))  for  such  operators.  5  As  part  of  the  new  regulatory  framework,  the  Commission  authorized  EA  licensees  to  relocate  incumbents  to  comparable  facilities.  6  It  concluded  that  a  smooth  and  equitable 
 transition  to  the  new  wide-  area  licensing  approach  would  necessitate  some  form  of  mandatory  relocation.  7  Therefore,  upon  licensing,  an  EA  licensee  has  the  option  of  relocating  incumbents  to  other  channels 
 provided  certain  requirements  are  met.  8  The  Commission  adopted  a  mechanism  for  relocation  of  incumbents  that  was  finalized  in  1997,  providing  first  for  voluntary  negotiations,  then  for  mandatory 
 negotiations,  and  lastly  for  involuntary  relocation.  9 
 3.  In  December  of  1997,  the  Commission  auctioned  EA  licenses  for  the  upper  200  channels  of  the  800  MHz  SMR  band  (800  MHz  SMR  auction).  10  Nextels  wholly  owned  subsidiary,  Nextel 


 License  Acquisition  Corporation,  was  the  winning  bidder  for  475  EAs  in  the  800  MHz  SMR  auction.  11  The  licenses  were  conditionally  granted  on  June  17,  1998.  12 


 4.  Nextel  is  a  provider  of  SMR  services,  offering  digital  wide-  area  services  to  the  public  in  an  integrated  package  of  cellular-  like  phone  service,  paging,  short  messaging,  and  one-  to-  one  and  one-  to-many 
 dispatch  services.  13  In  order  to  relocate  upper  200  channel  incumbent  Occidental  to  comparable  channels  in  the  800  MHz  band,  Nextel  requests  to  assign  Occidental  frequencies  856/  860.1375  MHz  and 
 856/  857.1125  MHz,  as  well  as  seven  SMR  channels,  in  spectrum  blocks  L  and  K.  14  Since  intercategory  sharing  among  commercial  and  noncommercial  services  is  no  longer  permitted,  15  Nextel  seeks  waiver  of 


 5  800  MHz  Report  and  Order,  11  FCC  Rcd  at  1483-  85    23-  25. 
 6  Id.  at  1510    79. 
 7  Id.  at  1507    73. 
 8  See  47  C.  F.  R.    90.  699  which  provides,  among  other  things,  that  EA  licensees  must  guarantee  payment  of 
 relocation  costs,  and  build  and  test  the  system  for  comparability  with  the  incumbents  existing  800  MHz  system. 
 9  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in  the  800 
 MHz  Band,  Memorandum  Opinion  and  Order  on  Reconsideration,  PR  Docket  No.  93-  144,  12  FCC  Rcd  9972,  9983-  91    32-  58  (1997)  (800  MHz  MO&  O  on  Recon);  Amendment  of  Part  90  of  the  Commissions  Rules  to 


 Facilitate  Future  Development  of  SMR  Systems  in  the  800  MHz  Band,  Second  Report  and  Order,  PR  Docket  No.  93-  144,  12  FCC  Rcd  19079,  19110-  26    85-  132  (1997). 


 10  800  MHz  SMR  Auction  Closes  Winning  Bidders  in  the  Auction  of  525  Specialized  Mobile  Radio  Licenses, 
 Public  Notice,  12  FCC  Rcd  20417  (1997). 
 11  Nextel  Waiver  Request  at  2. 


 12  FCC  Announces  the  Conditional  Grant  of  800  MHz  SMR  Licenses  to  Nextel  and  Nevada  Wireless,  Public 
 Notice,  13  FCC  Rcd  12024  (1998). 
 13  Nextel  Waiver  Request  at  1. 


 14  Id.  at  2. 
 15  See  supra  para.  2. 
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 Section  90.617(  d)  of  the  Commissions  Rules  to  permit  the  assignment  of  the  subject  commercial  800  MHz  SMR  channels  to  Occidental  for  private  I/  LT  operations.  16 
 5.  Section  1.925  of  the  Commissions  Rules  permits  waiver  of  specific  rule  requirements  if  (i)  the  underlying  purpose  of  the  rule(  s)  would  not  be  served  or  would  be  frustrated  by  application  to  the 
 instant  case,  and  a  grant  of  the  requested  waiver  would  be  in  the  public  interest;  or  (ii)  in  view  of  the  unique  or  unusual  factual  circumstances  of  the  case,  application  of  the  rule  would  be  inequitable,  unduly 
 burdensome  or  contrary  to  the  public  interest,  or  the  applicant  has  no  reasonable  alternative.  17  Additionally,  Section  1.3  of  the  Commissions  Rules  provides  authority  for  a  rule  waiver  upon  a  showing 
 of  good  cause.  18 
 6.  Section  90.617(  c)  of  the  Commissions  Rules  lists  the  channels  available  for  I/  LT  applicants  in  the  800  MHz  band;  19  and  Section  90.617(  d)  of  the  Commissions  Rules  lists  the  channels 


 available  for  SMR  applicants.  20  Section  90.617(  d)  specifically  states  that  the  channels  listed  in  that  subsection  are  available  only  to  applicants  in  the  SMR  category.  The  waiver  of  the  Commissions 
 intercategory  prohibition  sought  by  Nextel  would  enable  it  to  use  SMR  spectrum  to  relocate  an  I/  LT  operator.  Based  on  the  record  before  us,  we  conclude  that  a  waiver  designed  to  facilitate  relocation  of 
 800  MHz  SMR  upper  200  channel  incumbents,  especially  on  a  voluntary  basis,  would  serve  the  public  interest.  21  We  believe  that  such  waiver  would  further  the  Commissions  goals  in  the  800  MHz  SMR 
 proceeding  by  promoting  an  efficient  and  effective  transition  to  geographic  area  licensing.  22  When  the  Commission  adopted  Section  90.617(  c)  and  (d)  of  the  Rules,  it  sought  to  avoid  a  potential  scarcity  of 
 radio  frequencies  for  Private  Land  Mobile  Radio  Services  (PLMRS)  use  by  stopping  the  then  prevailing  practice  of  incorporating  Business  and  I/  LT  channels  into  SMR  systems.  23  However,  in  the  instant  case, 
 interservice  category  sharing  does  not  impinge  on  PLMRS  frequencies.  Rather,  a  PLMRS  applicant  gets  the  use  of  channels  assigned  for  SMR  operations.  Thus,  the  proposed  interservice  sharing  does  not 
 undermine  the  underlying  purpose  of  the  prohibition.  24 
 7.  Occidental  Waiver  Request.  Section  90.621(  b)  of  the  Commissions  Rules  25  requires  license  applicants  desiring  to  operate  on  800  MHz  channels  at  distances  less  than  seventy  miles  (113  km) 


 16  Nextel  Waiver  Request  at  1. 
 17  47  C.  F.  R.    1.925(  b)(  3). 
 18  47  C.  F.  R.    1.3. 
 19  47  C.  F.  R.    90.617(  c). 
 20  47  C.  F.  R.    90.617(  d). 
 21  See  Nextel  Communications,  Inc.,  Order,  14  FCC  Rcd  11678,  11689    25,  26  (WTB  1999)  (Nextel  Order). 
 22  800  MHz  Report  and  Order,  11  FCC  Rcd  at  1537    141.  See  also  Nextel  Order  at  11689    26. 
 23  800  MHz  Report  and  Order,  11  FCC  Rcd  at  1537    141. 
 24  See  American  Medical  Response,  Inc.,  Order  on  Reconsideration,  15  FCC  Rcd  25587,  25590,  25591-  92    8, 
 11  (WTB  PSPWD  2000). 
 25  47  C.  F.  R.    90.621(  b). 
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 from  co-  channel  facilities  to  submit  with  their  applications  either  a  waiver  request  26  or  a  letter  of  consent  from  each  licensee  operating  a  constructed  and  operational  station  with  that  distance.  27  Since  Occidental 
 seeks  to  operate  on  frequency  856.1125  MHz  at  a  distance  less  than  that  prescribed  in  Section  90.621(  b)(  4),  and  such  use  would  affect  two  co-  channel  licensees,  Occidental  submitted  a  waiver  request 
 with  respect  to  one  such  licensee  and  a  letter  of  concurrence  from  the  other. 
 8.  First,  Occidental  requests  a  waiver  of  the  separation  standards  to  permit  it  to  operate  on  frequency  856.1125  MHz  at  its  proposed  Andrew,  Texas,  site,  which  is  sixty-  five  miles  from  Station 


 WPUR224.  28  A  certificate  of  service  is  attached  to  Occidentals  waiver  indicating  that  CellSMR  of  Lubbock,  licensee  of  Station  WPUR224,  was  concurrently  served  with  a  copy  of  the  waiver  request  and 
 associated  application.  29  Also,  Occidental  submitted  an  engineering  study  that  demonstrates  that  both  the  proposed  station  and  Station  WPUR224  will  receive  the  requisite  interference  protection.  30  The  technical 
 analysis  indicates  that  the  proposed  stations  22  dB/  v  interference  contour  will  not  overlap  with  the  40  dB/  v  service  contour  of  the  CellSMR  station.  31  In  view  of  Occidentals  technical  submission,  we 
 conclude  that  it  has  met  the  Commissions  waiver  requirements  for  short-  spacing  as  it  concerns  Station  WPUR224. 


 9.  Second,  Occidental  submits  a  letter  indicating  consent  by  Nextel  to  co-  channel  separation  32  on  the  specified  frequency  relative  to  more  than  one  hundred  co-  channel  Nextel  stations.  33 
 As  required  by  Section  90.621(  b)(  5)  of  the  Commissions  Rules,  Nextel,  in  its  consent,  certifies  that  its  facilities  are  constructed  and  operational  and  that  it  accepts  any  interference  resulting  from  the  reduced 
 separation  between  the  proposed  facility  and  its  stations.  34  Nextel  also  indicated  that  it  had  received  a  copy  of  the  application  as  mandated  by  the  Commissions  Rules.  35  In  view  of  this,  we  conclude  that 
 Occidental  also  has  met  the  short-  spacing  criteria  concerning  Nextels  stations  and,  thus,  the  requirements  of  Section  90.621(  b)(  5)  of  the  Rules.  Short-  spacing  of  stations  serves  the  purpose  of  spectrum  efficiency 
 and  allows  more  licensees  to  conduct  operations  than  would  otherwise  be  possible,  while  the  consent  procedure  protects  the  operations  of  previously  licensed  co-  channel  stations  from  harmful  interference, 


 26  47  C.  F.  R.    90.621(  b)(  4). 
 27  47  C.  F.  R.    90.621(  b)(  5). 
 28  Occidental  Waiver  Request  at  1. 
 29  Id.  at  Attachment  1. 
 30  Id.  at  2,  Attachment  2. 
 31  Id. 
 32  The  letter  indicating  consent  was  submitted  as  an  attachment  to  the  instant  application.  See  Nextel 
 Communications,  Inc.,  Letter  of  Concurrence,  FCC  File  No.  0001072079  (filed  Oct.  28,  2002,  as  amended  on  March  28,  2003,  July  25,  2003,  and  July  30,  2003). 


 33  Id.  at  1,  Exhibits  1-  5. 
 34  Id.  at  2. 
 35  Id. 
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 thus  permitting  flexibility  in  the  granting  of  additional  licenses.  36  We  achieve  both  goals  with  the  instant  decision. 
 10.  In  conclusion,  we  find  that  Nextel  has  met  the  burden  for  waiver  of  the  intercategory  prohibition  in  Section  90.617(  c)  and  (d)  of  the  Commissions  Rules.  Additionally,  Occidental  has  met  the 
 short-  spacing  requirements  established  in  Section  90.621(  b)(  4)  and  (5)  of  the  Commissions  Rules.  This  Order  grants  the  waiver  requests  and  permits  the  processing  of  the  subject  assignment  application.  37  This 
 action  serves  the  public  interest  because  it  promotes  the  effective  transition  to  geographic  licensing  sought  by  the  Commission. 


 11.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  and  Sections  1.925(  b)(  3),  90.617(  c)  and  (d),  and  90.621(  e)(  4)  and 
 (5)  of  the  Commissions  Rules,  47  C.  F.  R.    1.925(  b)(  3),  90.617(  c),  (d),  90.621(  e)(  4),  (5),  that  the  requests  for  waiver  filed  by  Nextel  Communications,  Inc.,  and  Occidental  Permian  Ltd.,  ARE 
 GRANTED,  as  set  forth  above. 
 12.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  that  application  FCC  File  No.  0001072079  SHALL  BE 


 PROCESSED  consistent  with  this  Order. 
 13.  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 


 Michael  J.  Wilhelm  Chief,  Public  Safety  and  Critical  Infrastructure  Division 
 Wireless  Telecommunications  Bureau 


 36  Cf.  Britz  Fertilizers,  Inc.,  et  al.,  Order  on  Reconsideration,  19  FCC  Rcd  6819,  6821    3  (PSCID  2004). 
 37  The  waiver  grants  are  conditioned  on  the  completion  of  the  processing  of  the  subject  assignment  application. 
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