Federal Communications CommissionXX
Federal Communications CommissionXX
Before the
Federal Communications CommissionDA 00-487
Federal Communications Commission
Washington, D.C. 20554
In the Matter of)
)
RIG TELEPHONES, INC. D/B/A DATACOM)File Nos. 9900011-15
)
Request for Waiver of Part 101 of the)
Commission's Rules)
ORDER
Adopted: March 1, 2000Released: March 3, 2000
By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:
I. INTRODUCTION
1. On January 19, 1999, Rig Telephones, Inc. d/b/a/ Datacom (Datacom) filed a request for waiver of Part 101 of the Commission's Rules[1] to permit it to transmit common carrier message traffic in the Gulf of Mexico (Gulf) over 10 MHz channels in the 1850-1990 MHz band.[2] For the reasons stated herein, we deny Datacom's request for waiver.
II. BACKGROUND
2. Datacom is a commercial entity providing telecommunications services to the oil and gas industry offshore, in the inland water, and on land, in the Gulf area.[3] Datacom's primary activities are supplying microwave circuits, radio communications equipment, and Supervisory Control and Data Acquisition (SCADA) systems for oil, gas, and refinery applications.[4]
3. Datacom requests a waiver of the Rules to transmit common carrier message traffic on 1850-1990 MHz band frequencies in the Gulf.[5] A waiver is required because this band is allocated exclusively for private traffic.[6] Though Datacom currently operates point-to-point facilities on the 6525-6875 MHz (6 GHz) band in the Gulf, it states that those facilities are inadequate because the 6 GHz band is subject to random signal interruption due to signal fading caused by the unique and unpredictable weather and environmental conditions in the Gulf.[7] Datacom also requests a waiver to permit it to utilize a 10 MHz bandwidth in the 1850-1990 MHz band.[8] Datacom’s request is for no more than 20 channel pairs, and it states that common carrier traffic will comprise only 15 percent of the communications in this band.[9] It also states that since it will make use of the band in the deep Gulf, and on a secondary basis to personal communications service (PCS), there will not be any conflict with PCS systems.[10]
III. DISCUSSION
4. To obtain a waiver an applicant must affirmatively show that (1) the underlying purpose of the rule will not be served, or would be frustrated, by its application in the instant case, and that grant of the waiver would be in the public interest; or (2) the unique or unusual facts and circumstances of the instant case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest or that there are no reasonable alternatives.[11] As discussed in greater detail below, we find that Datacom has failed to meet either of the showings required for grant of a waiver.
5. Datacom states in its Waiver Request that it intends to build a communications system in the 1850-1990 MHz band to serve the communications needs of the oil and gas industry in the Gulf.[12] In addition to carrying the private internal communications of the oil and gas industry, Datacom states that it intends to use up to 15 percent of the communications capacity of its 1850-1990 MHz system to transmit cellular traffic from offshore platforms.[13] In support of its request, Datacom states that it would use these bands only in extremely remote locations in the deep water of the Gulf where there is (1) not a significant demand for use of these bands by other fixed terrestrial users, and (2) little likelihood that the spectrum will ever be used for PCS systems.[14] Datacom also argues that grant of the waiver will enhance safety of flight, provide increased safety of personnel on offshore platforms, and afford more effective protection of the environment.[15] Finally, Datacom directs attention to the Commission's prior acknowledgment of the unique circumstances confronting entities providing reliable communications systems to offshore locations in the Gulf.[16]
6. As for reasonable alternatives available to Datacom, it contends that none exist. The only other solution Datacom references is to build out its present network of point-to-point stations in the 6 GHz band.[17] However, according to Datacom, that band is fraught with difficulties which eliminate it as a reasonable alternative. Datacom states that these difficulties include random fading and weather conditions which severely limit the reliability of the 6 GHz band in the Gulf.[18] Additionally, Datacom argues that construction of such a network entails significantly higher costs than for comparable systems in the continental United States.
7. We find that Datacom has not met the standards for obtaining a waiver of the Commission's Rules, and that Datacom has not demonstrated unique or unusual circumstances justifying a waiver. We recently addressed these issues and believe that Datacom’s bandwidth requirements and the difficulties of operating a 6 GHz system in the Gulf may have been overstated.[19] In this connection, we note that there are other entities currently operating effective and fully operational common carrier microwave systems on 6 GHz frequencies in the Gulf.[20] We believe that these systems are indications that operation of a 6 GHz system in the Gulf is possible. While we do not disagree that cost is a relevant factor, we are not persuaded that cost alone eliminates operation in the 6 GHz band as a reasonable alternative.[21] Accordingly, we find that the 6 GHz band offers Datacom a reasonable alternative to achieving its desired bandwidth. While we are aware that Datacom would operate in a status secondary to the PCS operators and would therefore be obligated to eliminate any interference its operation would cause, the same unique circumstances we have previously addressed relating to communications in the Gulf could make it difficult to isolate any sources of interference. Thus, we find that Datacom's showing is insufficient to overcome the high hurdle a waiver applicant faces.[22]
8. We also find that Datacom has not shown how the underlying purpose of the rule, ensuring the availability of adequate spectrum to accommodate the needs of private fixed and PCS services, will not be served or would be frustrated by application of Sections 101.101 and 101.603(b) to the circumstances presented.[23] We note that the Commission has excluded the 2 GHz band (which includes the 1850-1990 MHz band) from the list of Private Operational Fixed Point-to-Point Microwave Service (POFS) frequencies for which a licensee can seek a waiver in order to provide common carrier service as well as internal communications.[24] The Commission did so because it previously reallocated the 2 GHz band from private and common carrier fixed microwave services to emerging technology (ET) services, including PCS.[25] In this connection, the Commission developed rules designed to relocate incumbents in these frequencies to other portions of the spectrum in order to foster the introduction of ET services.[26] The goals of the 2 GHz licensing rules are not only to limit relocation costs, but also to clear the 2 GHz spectrum in an expeditious and effective manner.[27] Given the Commission's intent in those proceedings, we believe that allowing Datacom to offer common carrier service over frequencies allocated exclusively for POFS service could frustrate the underlying purpose of the Commission’s Rules regarding permissible operations in the 2 GHz band.[28]
IV. CONCLUSION
9. For these reasons, we find that Datacom failed to make a sufficient showing that grant of a waiver is warranted under the circumstances described. Accordingly, based on the record in this proceeding, we conclude that a rule waiver is not justified. Consequently, this Order denies Datacom's Waiver Request.
V. ORDERING CLAUSES
10. IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act, as amended, 47 U.S.C §§ 154(i), 405, and Section 1.925 of the Commission's Rules, 47 C.F.R § 1.925 that Datacom's request for waiver of Sections 101.101 and 101.109 of the Commission's Rules, 47 C.F.R. §§ 101.101, 101.109, filed March 24, 1999, IS DENIED.
11. 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 and 0.331.
FEDERAL COMMUNICATIONS COMMISSION
D'wana R. Terry
Chief, Public Safety and Private Wireless Division
Wireless Telecommunications Bureau
[1]47 C.F.R. Part 101.
[2]Datacom Request for Waiver (filed March 24, 1999) (Waiver Request).
[3]Id. at 1.
[4]Id.
[5]Id.
[6]47 C.F.R. § 101.101; see also 47 C.F.R. § 101.603(b)(1).
[7]Id. at 2.
[8]Id. at 1, 3.
[9]Id. at 1-2.
[10]Id.
[11]See 47 C.F.R. § 101.23 (1998); 47 C.F.R. § 1.925 (1999). When Datacom submitted its Waiver Request, former 47 C.F.R. § 101.23 was the applicable waiver rule for Part 101 services. The Commission subsequently released a Report and Order that streamlined and revised the Commission's Rules governing license procedures for radio services licensed by the Wireless Telecommunications Bureau. Biennial Regulatory Review -- Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless Telecommunications Services, 13 FCC Rcd 21207, WT Docket No. 98-20 (1998). Section 101.23 was superseded by 47 C.F.R. § 1.925, the language of which is, in pertinent part, substantially the same as that of former 47 C.F.R. § 101.23. The U.S. Court of Appeals for the D.C. Circuit has noted that the Commission's discretion to resolve difficult issues with general rules is intimately linked to the existence of a safety valve procedure for granting an exemption based on special circumstances. SeeWAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969, cert. denied, 409 U.S. 1027 (1972).
[12]Waiver Request at 1.
[13]Id.
[14]Id. at 3.
[15]Id. at 2.
[16]Id. at 3. See, e.g., Petroleum Communications, Inc., Memorandum Opinion and Order, 12 FCC Rcd 2996 (1997).
[17]Id. at 2.
[18]Id. at 3.
[19]See Rig Telephones d/b/a Datacom, Order on Reconsideration, DA 00-472, ¶¶ 8-11 (WTB PSPWD rel. Mar. 2, 2000)
[20]See id. at ¶ 10.
[21]In addition, although it was unsuccessful in acquiring additional spectrum in the Wireless Communication Service auction, Datacom is not without any other alternatives. The options of negotiating a partitioning agreement, filing a license application to acquire additional spectrum in a new band, or obtaining spectrum at future auctions are available. Moreover, Datacom has not indicated why it cannot make use of the 40 MHz of 2 GHz spectrum for which it is already licensed, or why other common carrier frequency reuse techniques are not feasible.
[22]WAIT Radio, 418 F.2d at 1157.
[23]We note that 47 C.F.R. § 101.603(b) generally prohibits common carrier operations on private bands.
[24]See Reorganization and Revision of Parts 1, 2, 21, and 94 of the Rules to Establish a New Part 101 Governing Terrestrial Microwave Fixed Radio Services, Report and Order, WT Docket No. 94-148, 11 FCC Rcd 13449, 13468 ¶ 43 (1996), on recon., Memorandum Opinion and Order and Further Notice of Proposed Rule Making, FCC No. 00-33 (rel. Feb. 14, 2000). Though commenters suggested deleting Section 101.603(b)(1) of the Rules, the Commission declined to do so in the Report and Order and again in the Memorandum Opinion and Order and Further Notice of Proposed Rule Making because it lacked a sufficient record. However, it stated that it would be receptive to a request to amend the Rules to permit POFS carriage of common carrier traffic, and in the Memorandum Opinion and Order and Further Notice of Proposed Rule Making sought additional comment on whether to delete the rule. SeeMemorandum Opinion and Order and Further Notice of Proposed Rule Making, at ¶ 36.
[25]Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies, First Report and Order and Third Notice of Proposed Rule Making, ET Docket No. 92-9, 7 FCC Rcd 6886, 6893 ¶ 40 (1992).
[26]Id.
[27]See Duke Power Co., Order, DA 99-2574, at ¶ 6 (WTB PSPWD rel. Nov. 18, 1999).
[28]See Amendment to the Commission Rules Regarding a Plan for Sharing the Costs of Microwave Relocation, First Report and Order and Further Notice of Proposed Rule Making, WT Docket No. 96-196, 11 FCC Rcd 8825, 8869 ¶ 90 (1996) (holding that the microwave relocation rules adopted in ET Docket No. 92-9 apply to all emerging technologies services, including non-PCS services in the 2110-2150 and 2160-2200 GHz, which have not yet been licensed); see also Westinghouse Communications Services Inc. and Nextel Communications Inc. Requests for Waiver to Permit Provision of Common Carrier Service on 2 GHz Private Operational Fixed Microwave Service Frequencies, Order, DA 00-393 (WTB PSPWD rel. Feb. 28, 2000).