Federal Communications Commission DA 99-212

Federal Communications Commission DA 99-212

Federal Communications Commission DA 99-212

Before the

Federal Communications Commission DA 99-212

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Applications of )

)

FRED DANIEL D/B/A ORION TELECOM ) File Nos. 851426 & 851427

)

For Automated Maritime Telecommunications )

System Stations at San Clemente and )

Newport Beach, California )

ORDER ON RECONSIDERATION

Adopted: January 20, 1999 Released: January 21, 1999

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:

I. INTRODUCTION

1. In this Order on Reconsideration, we address a petition[1] filed by Fred Daniel d/b/a Orion Telecom (Orion) seeking reconsideration of a decision by the Public Safety and Private Wireless Division (Division) of the Wireless Telecommunications Bureau conditionally granting the above-captioned applications for authorization to construct and operate Automated Maritime Telecommunications System (AMTS) stations at Newport Beach and San Clemente, California. The Division conditioned the grant on the stations' effective radiated power (ERP) not exceeding ten watts.[2] For the reasons discussed below, the petition for reconsideration is denied.

II. BACKGROUND

2. In establishing the rules permitting AMTS stations, the Commission considered the potential for interference to television reception, particularly Channels 10 and 13 because of the proximity of AMTS channels to these television channels, and conditioned the operation of AMTS coast stations on the requirement that no harmful interference be caused to television reception.[3] Under Section 80.215(h) of the Commission's Rules, an applicant for an AMTS station within 169 kilometers (105 miles) of a Channel 13 television station must submit a plan to limit interference to television reception,[4] and the station

will be authorized if the applicant's plan has limited the interference contour(s) to fewer than 100 residences or if the applicant:

(i) Shows that the proposed site is the only suitable location;

(ii) Develops a plan to control any interference caused to TV reception within the [TV] Grade B contour from its operations; and

(iii) Agrees to make such adjustments in the TV receivers affected as may be necessary to eliminate interference caused by its operations.[5]

3. On October 2, 1997, Orion, which already operates AMTS stations in Southern California, including facilities at Mount Wilson and Santiago Peak, which is about forty-seven miles southeast of Mount Wilson, filed license applications for AMTS stations at Newport Beach, about forty-five miles south-southeast of Mount Wilson, and San Clemente, about sixty-one miles south-southeast of Mount Wilson and about seventeen miles southeast of Newport Beach.[6] On November 13, 1997, KCOP Television, Inc. (KCOP), licensee of a Los Angeles, California, Channel 13 television station broadcasting from Mount Wilson, filed a petition to deny the applications.[7]

4. KCOP stated, and Orion did not dispute, that there were 861,927 people within both KCOP's Grade B contour and the proposed Newport Beach station's predicted interference contour, and 280,990 people within both KCOP's Grade B contour and the proposed San Clemente station's predicted interference contour.[8] The predicted interference contours were based on the assumption that the stations' ERP would be one thousand watts, but Orion represented to the Commission that, because the proposed stations were intended only to fill in gaps in its West Coast system's coverage, it did not expect to operate the stations with more than ten watts ERP.[9] In addition, Orion indicated that it planned to employ antennas that would direct most of the radiation away from nearby residences; and to install channels in reverse order of frequency, installing the highest frequencies (i.e., those farthest away from the Channel 13) first and moving downward in frequency only as required by subscriber demand.[10] Orion also agreed to investigate any viewer complaints and make such adjustments to television receivers as may be necessary to eliminate interference caused by its operations.[11]

5. In the August 10, 1998 Memorandum Opinion and Order, the Division granted the applications, on the condition that the stations' ERP not exceed ten watts.[12] The Division concluded that Orion's plan to control interference within KCOP's Grade B contour did not merit unconditional grant of the applications because stations with predicted interference contours encompassing so large a number of residences require an extraordinary plan to control interference to television reception, and Orion's plan did not suffice.[13] The Division concluded that the applications could be granted, however, if the stations were not permitted to operate with more than ten watts ERP, because the reduction in power would reduce the area of potential interference enough that Orion's proffered plan would provide adequate protection against interference.[14] Orion petitioned for reconsideration of the Division's decision on August 19, 1998.[15]

III. DISCUSSION

6. Orion contends that the Division misapplied Section 80.215(h) of the Commission's Rules. It first argues that the Division erred by applying an obsolete version of Section 80.215(h)(3),[16] but in fact, as KCOP states,[17] the Division merely took note of the original version of the rule.[18] We note that reference to a prior version of a rule has been deemed to be a legitimate tool for interpreting the present version.[19]

7. Prior to an editorial, non-substantive revision,[20] the regulation provided that an AMTS station within 105 miles of a Channel 13 television station "will normally be authorized only" if the plan to limit interference to television reception limits the interference contour(s) to fewer than 100 residences, but that the Commission "may, in a particular case," authorize facilities not meeting this condition if the requirements now set forth in Section 80.215(h)(3) are met.[21] In light of the history of the rule, the Division concluded that such applications should be granted only under exceptional circumstances, and the stringency of a proposed plan to control interference must correspond to the population within the predicted interference contour.[22] Orion, which appears to believe that the submission of any plan is sufficient, whether or not the plan would effectively control interference to television reception,[23] argues that nothing in Section 80.215(h)(3) or its history requires a more stringent plan to control interference in more populated areas.[24] We disagree. We believe that the rule's insistence on "a plan to control any interference to TV reception" is indicative of a requirement that the plan be effective. We further believe that the effectiveness of a particular plan should be based on the specific circumstances associated with the proposed facility.[25]

8. Orion also argues that its proposed plan to control interference should have been deemed adequate because the Commission granted its applications containing the same plan for stations at Santiago Peak and Oat Mountain, the predicted interference contours of which encompass far more residences within KCOP's Grade B contour than the Newport Beach and San Clemente contours.[26] KCOP suggests that the areas near the Newport Beach and San Clemente stations are more densely populated than the areas near the Santiago Peak and Oat Mountain stations.[27] Also, no party petitioned to deny those applications, indicating that the potentially affected television stations deemed Orion's plan adequate for those stations. Moreover, to the extent that the plan submitted with those unchallenged applications could have been inadequate and the subsequent grant erroneous, such a conclusion does not provide grounds for allowing another inadequate plan, particularly in the face of KCOP's petition to deny these applications.[28]

9. Finally, Orion argues that the selection of a power limit of ten watts ERP was arbitrary and capricious, and lacked foundation.[29] To the contrary, this power limit was selected by Orion, not the Division. Specifically, in response to a request for additional pleadings regarding KCOP's argument that Santa Catalina Island was a suitable location for the proposed stations,[30] Orion stated that a station on the island would have to be operated at full power, but it expected to operate the proposed stations at only ten watts ERP, because they were much closer to the gaps in the Santiago Peak station's coverage that Orion sought to fill in.[31] It then argued that the island therefore was not a suitable location, because the proposed stations had a much lower potential for interference to television reception.[32] In light of this backdrop, it is disingenuous for Orion to now suggest that the ten watt ERP limitation is arbitrary. Rather, we accepted Orion's representation about its anticipated operation of the proposed stations.[33] Thus, we disagree with Orion's assertion that the limitation was arbitrary and capricious and lacked foundation.

IV. CONCLUSION

10. For the reasons stated above, we hereby deny Orion's petition for reconsideration of the Division's decision conditioning grant of Orion's applications for AMTS stations at Newport Beach and San Clemente on the stations' ERP not exceeding ten watts. The Memorandum Opinion and Order correctly interpreted Section 80.215(h) of the Commission's Rules, and Orion's plan to control harmful interference did not merit unconditional grant of the applications.

V. ORDERING CLAUSES

11. Accordingly, IT IS ORDERED that, pursuant to the authority of Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 405, and Sections 1.106 and 1.958 of the Commission's Rules, 47 C.F.R. §§ 1.106, 1.958, the Petition for Reconsideration filed by Fred Daniel d/b/a Orion Telecom on August 19, 1998 IS DENIED.

12. 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

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[1] Orion Petition for Reconsideration (filed Aug. 19, 1998) (Petition).

[2] Fred Daniel d/b/a Orion Telecom, Memorandum Opinion and Order, 13 FCC Rcd 15446 (PS&PWD 1998) (Memorandum Opinion and Order).

[3] 47 C.F.R. § 80.215(h); Amendment of Parts 2, 81 and 83 of the Commission's Rules to Allocate Spectrum for an Automated Inland Waterways Communications System (IWCS) along the Mississippi River and Connecting Waterways, Report and Order, GEN Docket No. 80-1, 84 FCC 2d 875, 897-98, on reconsideration, Memorandum Opinion and Order, GEN Docket No. 80-1, 88 FCC 2d 679 (1981).

[4] 47 C.F.R. § 80.215(h)(2).

[5] 47 C.F.R. § 80.215(h)(3).

[6] Memorandum Opinion and Order, 13 FCC Rcd at 15446-47. The applications were placed on public notice on October 14, 1997. Public Notice, Report No. 1958 (rel. Oct. 14, 1997).

[7] Id. The Memorandum Opinion and Order erroneously stated that KCOP filed its petition to deny at the Commission's offices in Washington, D.C., instead of at the Commission's offices in Gettysburg, Pennsylvania, as required by 47 C.F.R. § 1.962(g). Memorandum Opinion and Order, 13 FCC Rcd at 15446 n.2. In fact, the petition was filed in both places. See KCOP Opposition to Petition for Reconsideration at Ex. A (filed Sept. 2, 1998) (Opposition).

[8] Memorandum Opinion and Order, 13 FCC Rcd at 15448.

[9] Id. at 15448, 15450.

[10] Id. at 15450.

[11] Id.

[12] Id. at 15452.

[13] Id. at 15451.

[14] Id.

[15] KCOP filed an opposition to the petition for reconsideration on September 2, 1998, to which Orion replied on September 9, 1998.

[16] Petition at 6-7.

[17] Opposition at 3 n.4.

[18] See Memorandum Opinion and Order, 13 FCC Rcd at 15450-51.

[19] See, e.g., Commercial Communications, Inc., Memorandum Opinion and Order, 81 FCC 2d 106, 116-17 (1980); Western Union Telegraph Co., Memorandum Opinion and Order, 75 FCC 2d 461, 472 (1979).

[20] Reorganization and Revision of Parts 81 and 83 of the Rules to Provide a New Part 80 Governing the Maritime Services, Report and Order, 60 Rad. Reg. (P & F) 1550, ¶¶ 14, 19 (1986).

[21] Former 47 C.F.R. § 81.134(j)(3) (1982) (emphasis added).

[22] Memorandum Opinion and Order, 13 FCC Rcd at 15451.

[23] See Petition at 11.

[24] Id. at 8-9, 11-12.

[25] See, e.g., 47 C.F.R. § 90.723(i); Amendment of the Commission's Rules to Establish a Radio Astronomy Coordination Zone in Puerto Rico, Memorandum Opinion and Order, ET Docket No. 96-2, FCC 98-140, ¶ 7 (rel. July 2, 1998) (the Commission declined to set a definition concerning reasonable efforts to control interference in the Radio Astronomy Zone; the Commission determined that reasonable efforts to control interference would be evaluated on a case-by-case basis).

[26] Petition at 10-13.

[27] Opposition at 5.

[28] See Quinnipiac College, Memorandum Opinion and Order, 8 FCC Rcd 6285, 6286 (1993).

[29] Petition at 12-13.

[30] Fred Daniel d/b/a Orion Telecom, Order, 13 FCC Rcd 197 (P&R, PS&PWD 1997).

[31] Memorandum Opinion and Order, 13 FCC Rcd at 15448, 15450.

[32] Id. at 15449.

[33] We note that this limitation does not preclude Orion from submitting a modification application to raise the ERP limitation, provided that it also submits an improved plan to address the increased interference potential.