Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C PETITION FOR CLARIFICATION AND/OR RECONSIDERATION

Transcription

1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C In the Matter of ) ) Expanding the Economic and Innovation ) GN Docket No Opportunities of Spectrum Through ) Incentive Auctions ) To: The Commission PETITION FOR CLARIFICATION AND/OR RECONSIDERATION The Law Firm ofblooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP, on behalf of numerous clients that hold Part 90 private radio licenses (hereinafter the "Blooston Part 90 Licensees," see Attachment A hereto), and pursuant to Section 405 of the Communications Act of 1934, as amended ("the Act") and Rule Section 1.429, hereby requests clarification and/or reconsideration of the action taken by the Commission at footnote 423 of the Notice a( Proposed Rulemaking, FCC , released October 2, 2012 ("NPRM') in the above-captioned proceeding. The action concerns a repeal of Rule Section (c)(ll). 1 In support hereofthe following is shown: Standing The Blooston Part 90 Licensees include numerous Private Land Mobile Radio license holders engaged in a wide variety of activities that are important to the U.S. 1 The NPRM was published in the Federal Register on November 21, Therefore, this Petition is timely filed.

2 2 economy, including manufacturing operations, transportation services, coal mining and installation/maintenance of telecommunications systems. Moreover, the Blooston Part 90 Licensees include entities providing important safety-related services to the public, such as auto clubs and alarm companies. Automobile emergency radio service providers rescue stranded motorists that are at risk of injury from secondary collisions, crime, freezing temperatures or other hazardous conditions. Alarm companies protect a wide range of sensitive facilities and their occupants from fire, burglaries, sabotage, acts of terrorism and other emergencies. Protected facilities include, but are not limited to, govermnent offices, power plants, hospitals, darn and water authorities, pharmaceutical plants, chemical plants, banks, schools and universities. In addition to these commercial and govermnental applications, alarm companies protect a large and ever increasing number of residences, and their occupants from fire, intruders, and carbon monoxide poisoning. Alarm companies also provide medical alert services in the event of medical emergencies. These licensees operate on frequencies encompassed by Ru1e Section ( c)( 11 ), which prior to the action taken at footnote 423 of the NP RM were exempt, by the express terms of the regulation, from the Commission's auction procedures. The Blooston Part 90 Licensees would be aggrieved, and their interests adversely affected, by the Commission's actions in footnote 423 of the NPRM, because they will now be forced to compete for licenses at auction when formerly they were exempt. Moreover, their continued operation on licenses they have long held under the current licensing scheme may be hindered. Accordingly, the potential economic injury to these entities is direct,

3 3 immediate and substantial. Therefore, the Blooston Part 90 Licensees have standing to file this petition. Association o(data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); NBC v. FCC, 132 F.2d 545, (D.C. Cir.) atf'd 318 U.S. 239 (1943); Northco Microwave, 1 F.C.C. 2d 350 (1965). Argument Footnote 423 of the NPRM states as follows: "We note that the Commission's rules currently include an outdated provision adopted under an earlier version of 47 U.S.C. Sec. 309G). See 47 C.P.R. Sec (c) (listing certain services and classes of services, including UHF, VHF, and LPTV broadcast television, as not subject to competitive bidding). We take this opportunity to delete 47 C. FR. Sec l(c) to reflect that services listed in that section are subject to competitive bidding under current law." 2 (Emphasis added). 2 Thus the following radio services formerly subject to the Rule (c) exemption are now subject to auctions: I) Alaska Private Fixed Stations (47 CFR Part 80, subpart 0); 2) Broadcast Radio (AM & FM) and Broadcast Television (VHF, UHF, LPTV) under 47 CFR part 73; 3) Broadcast Auxiliary & Cable Television Relay Services (see 47 CFR part 74, subparts D, E,F, G, Hand Land part 78, subpart B); 4) Instructional Television Fixed Service (47 CFR part 74, subpart I); 5) Maritime Support Stations (47 CFR part 80, subpart N); 6) Marine Operational Fixed Stations (47 CFR part 80, subpart L); 7) Marine Radiodetermination Stations (47 CFR part 80, subpart M); 8) Personal Radio Services (47 CFR part 95), except applications filed after July 26,!993, in the Interactive Video Data Service (47 CFR part 95, subpart F); 9) Public Safety, Industrial/Land Transportation, General & Business Radio categories above 800 MHz, including fmder's preference requests for frequencies not allocated to the SMR service (47 CFR ), and including, until further notice of the Commission, the Automated Vehicle Monitoring Service (47 CFR ); 10) Private Land Mobile Radio Services between MHz (47 CFR part 90, Subparts B-F), including those based on finder's preferences ( 47 CFR ); I I) Private Land Mobile Radio Services below 470 MHz (47 CFR part 90, subparts B-F) except in the 220 MHz band (47 CFR part 90, subpart T), including those based on finder's preferences (47 CFR ); and 12) Private Operational Fixed Services (47 CFR part 94).

4 4 The precise status of the Commission's above-quoted statement is uuclear- is it an actual action or is it only a proposal? By its wording, footnote 423 seems to constitute a Commission action, not a proposed action. If this is so, then the action taken was improper in the context of an NPRM. Furthermore, the purported action stated in footnote 423 was not included in the NPRMs ordering clauses. However, the elimination of Rule Section ( c) is listed in Appendix A to the NP RM as a proposed action. In view of this ambiguity, this Petition is being filed out of an abundance of caution in the event the Commission intended to take the action complained of in the actual NP RM. Out of a further abuudance of caution, the substance of this Petition will be refiled with the Commission as a comment on or before the comment filing deadline. In the event that the Commission intended the statement in footnote 423 to be a fail accompli, it is respectfully submitted that taking such action in the context of a footnote buried in a document as long and complex as the Incentive Auction NPRM would be inappropriate and incorrect as a matter of law. First, deletion of Rule Section ( c) by footnote is not appropriate because the issue of Part 90 Private Land Mobile Radio Service auctions is controversial, with significant public interest implications. This is evidenced by the fact that when the Commission proposed private radio spectrum auctions in 1999 ( as part of WT Docket No ), a substantial record was established showing that such approach was uuworkable and adverse to the public interest, and the Commission accordingly decided to abandon the idea. While Congress has given the Commission authority to use

5 5 spectrum auctions to resolve mutual exclusivity between applications, this power is limited. Section 309(j)(6)(E) of the Act specifies that "[n]othing in this subsection, or in the use of competitive bidding, shall... (E) be construed to relieve the Commission of the obligation in the public interest to continue to use engineering solutions, negotiation, threshold qualifications, service regulations, and other means in order to avoid mutual exclusivity in application and licensing proceedings." In licensing the Part 90 Private Land Mobile Radio Service channels, the Commission has used shared frequency assiguments and frequency coordination to fulfill this statutory obligation and, consequently, no cases of mutual exclusivity have arisen. As a result of this successful licensing approach, well over a million "shared use" licenses have been issued, and significant disruption would result if an auction regime were to be imposed after the fact and supplant or disrupt the "shared use" licensing approach. 3 This would constitute a violation of the Commission's statutory obligations under Section 309(i)(6)(E) of the Act. We request the Commission to clarify that it will continue to use the current system of shared spectrum, frequency coordination, technical solutions and negotiations to prevent the occurrence of mutually exclusive cases; and in any event, a proposal to delete Rule Section ( c) should be the subject of a clear cut rule making that is designed to effectively notify Part 90 licensees that their spectrum rights may be significantly affected. 3 There were over one million Private Land Mobile Radio Service licensees in 1996, when the Commission studied use of the Part 90 spectrum. Private Land Mobile Radio Service Background Staff Paper, FCC Wireless Telecommunications Bureau, December I 8, I 996 (available at: This number has grown substantially in the intervening 16 years.

6 6 Moreover, the deletion of Rule Section l.2102(c) cannot be undertaken as a ministerial action in a footnote without violating a binding Congressional mandate. In particular, under the exemption codified in Rule Section ( c), certain Private Land Mobile Radio Service frequencies remain exempt from auctions under the current version of Section 309G)(l) of the Act. Section 309(j) of the Act specifies in relevant part "[i]f consistent with the obligations described in paragraph (6)(E), mutually exclusive applications are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the requirements of this subsection." (Emphasis added). Section 309(j)(2) (referenced in (j)(l), entitled "Exemptions"), specifies that "[t]he competitive bidding authority granted by this subsection shall not apply to licenses or construction permits issued by the Commission (A) for public safety radio services, including private internal radio services used by State and local governments and non-government entities and including emergency road services provided by not-for-profit organizations that (i) are used to protect the safety of life, health, or property; and (ii) are not made commercially available to the public." (Emphasis added). Thus, the Act continues to exempt from auction authority licenses and construction permits issued for public safety radio services, and those provided by private sector companies such as automobile emergency road service providers, who use the channels internally to protect the safety of life, health, or property. These operations take place on channels which footnote 423 now purports to make subject to auctions, contrary to the directive contained in the statute. 4 Several Blooston Part 90 Licensees 4 While Congress has provided in the Middle Class Tax Relief and Job Creation Act of2012, Pub. L. No , 125 Stat. 156 (2012) for the eventual return of the T-Band [ MHz] spectrum by public

7 7 (including numerous auto clubs such as those shown in Attachment A) operate their Private Land Mobile Radio stations so as to protect the safety of life, health, or property. WHEREFORE, the Blooston Part 90 Licensees request the Commission to set aside the action apparently contained in the footnote 423 of the NPRM insofar as the charmels below 470 MHz are concerned, and to continue to recognize these channels as statutorily exempt from the Commission's auction authority. Respectfully submitted, The Blooston Part 90 Licensees Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP 2120 L Street, N.W. Suite 300 Washington, D.C Tel.: ohn A. Prendergas Robert M. Jackson Their Attorneys Filed: December 21, safety entities, many safety-related operations take place on spectrum below 4 70 MHz. Moreover, the Commission should have a full rulemaking to address the best way to deal with the T-Band without unduly disrupting important public safety operations in that spectrum.

8 ATTACHMENT A 3 Rivers Communications AAA Minneapolis AAA North Jersey AAA Northern California, Nevada & Utah AAA Oregon/Idaho Alarm Detection Systems, Inc. Apogee Coal Company, LLC Catenary Coal Company, LLC Central Oklahoma Telephone Co. Custer Telephone Cooperative, Inc. Eastern Associated Coal, LLC Grand Eagle Mining, LLC Heritage Coal Company, LLC Hobet Mining, LLC Midland Train Energy, LLC Midwest MobileOhio County Coal Company, LLC Patriot Coal Corporation Pine Ridge Coal Company, LLC Ponderosa Telephone Company Radio Communications Systems, Inc. Supreme Security Systems, Inc. Vector Security, Inc. Weatherby Process, LLC Webster-Calhoun Coop. Tel. Assn.