Subject: [NEXTEL-1] APPLICATION FOR CONSENT TO THE ASSIGNMENT OF A FIVE-CHANNEL 220 MHZ NATIONWIDE LICENSE FROM RUSH NETWORK CORP. TO THE ASSOCIATION OF AMERICAN RAILROADS.

From: [email-masked]
Date: Mon, 24 Nov 2003 17:19:48 -0500

Before the
Federal Communications Commission
Washington, D.C. 20554

In the matter of
Application for Consent to the Assignment of a Five-Channel 220 MHz Nationwide
License (Call Sign WPWY753, formerly WPTC968) from Rush Network Corp. to the
Association of American Railroads

Request by Rush Network Corp. for Waiver
Of the Ten-Year Construction Requirement )

File No. 0001217770

File No. 0001217811

Order

   Adopted:  November 21, 2003 Released:  November 24, 2003

By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau:

    I.  INTRODUCTON

1. We have before us an application filed by Rush Network Corp. (Rush) and the
Association of American Railroads (AAR) to assign the 220-222 MHz (220 MHz)
nationwide, commercial Phase I license, call sign WPWY753 (License) from Rush to
AAR.   AAR also seeks a waiver of four rules in conjunction with its proposed
use of the subject 220 MHz spectrum.   In this order, we grant, in pertinent
part, AAR’s waiver request to enable AAR to implement portable locomotive
control technology (PLCT) on its proposed 220 MHz system, and direct the
Licensing and Technical Analysis Branch (LTAB) to process the above-referenced
assignment application.

   II.  BACKGROUND

2. On March 3, 2003, Rush and AAR jointly submitted an application to assign 220
MHz call sign WPWY753 from Rush to AAR.  In the application, AAR requests that
the Commission waive four of its rules to allow AAR to use the frequencies to
develop a private, non-commercial system for the freight railroad industry to
operate switching locomotives in railroad yards using radio control links.
Specifically, AAR seeks a waiver of sections 90.713(a) and 90.717(b) of the
Commission's rules, both of which restrict the spectrum covered by the License
to commercial use only.  AAR also seeks a waiver of section 90.715(a), which
designates one frequency in each 220 MHz channel pair as the "base station"
frequency and the other as the "mobile station" frequency.   Finally, AAR
requests that the Commission waive rule section 90.709(c), which subjects an
assignee of a Phase I nationwide 220 MHz license to the four construction
benchmarks set forth in section 90.725 of the Commission's rules, and allow AAR
to comply instead with the substantial service criterion of Part 90.

3. On February 28, 2003, Rush filed a waiver seeking a two-year extension of the
requirements of section 90.725 to expand its current system and meet the final
construction benchmark for the License.    In support of its extension request,
Rush cites to a lack of 220 MHz equipment and the potential assignment to AAR.
However, on July, 28, 2003, Rush notified the Commission that it had completed
its final ten year build-out requirement.   Rush’s License was renewed and the
request for extension was dismissed as moot on October 7, 2003.

4.  On March 17, 2003 the Bureau sought comment on the assignment and waiver
requests filed by Rush Network and AAR.   On April 17, 2003, Access Spectrum
filed a Petition to Deny against Rush’s request for waiver.  On April 28, 2003,
Rush filed an Opposition and on May 5, 2003, Rush filed its Reply.  AAR, NRTC
LLC, and Motorola, Inc. also filed comments in this proceeding.

   III. DISCUSSION

5. As discussed below, we grant, in pertinent part, AAR’s waiver request,
subject to further processing of the assignment application by LTAB.  We note
that Access Spectrum only opposed Rush’s request for extension of time to meet
the construction build-out for call sign WPWY753, which was dismissed as moot,
and did not specifically oppose AAR requests for waiver of rules restricting use
of the subject spectrum to commercial purposes and/or related technical rules.
Pursuant to the Commission’s rules for processing waiver requests, section 1.925
provides that waivers may be granted based on a showing that the purpose of the
rules would not be served, would be frustrated, or that the grant would be in
the public interest.   Alternatively, an applicant’s request for waiver may also
be granted if in view of the unique or unusual factual circumstances of the
instant case, application of the rules would be inequitable, unduly burdensome
or contrary to the public interest or the applicant has no reasonable
alternative.   Additionally, section 1.3 of the Commission’s rules provides
authority for a rule waiver upon a showing of good cause.

6. First, AAR seeks a waiver of sections 90.713(a) and 90.717(b) of the
Commission's rules, both of which restrict the spectrum covered by the License
to commercial use only.    We grant AAR’s request because of the special
circumstances detailed in the waiver request and because we conclude it is in
the public interest.  As discussed below, AAR has made a showing that allowing
AAR to operate the proposed PLCT system on a 220 MHz system is in the public
interest because of its public safety, spectrum, and efficiency benefits,
consistent with the Commission’s prior findings on the use of spectrum for
railroad services.   We find that this action is also consistent with the
Commission’s policies regarding flexible use of spectrum.

7. AAR requests a waiver of the commercial use only restriction in order to
implement the PLCT  utilizing the nationwide 220-222 MHz spectrum.   AAR states
that PLCT offers significant benefits to customers, employees and the public,
including “improved safety, lower operating costs and improved productivity.”
AAR states that it will be the licensee on behalf of member railroads, will
coordinate channel assignments and maintain a database of locations and
operating characteristics of railroads.   PLCT systems have been implemented
using other frequencies, but because of interference have led to the search for
alternative frequency bands for PLCT operations.   AAR asserts that granting the
requested waiver is in the public interest because it provides for flexible use
of the spectrum, and promotes public safety by eliminating the use of congested
450-460 MHz band spectrum.   AAR further notes that the Commission has
previously granted waivers to AAR for Advanced Train Control System (ATCS) use
in 900 MHz spectrum, concluding that it would “improve railroad safety …
dramatically.”

8. AAR states that the proposed PLCT system on 220 MHz spectrum will be
efficient because it will operate on 5 kHz narrowband channels and will foster
technological innovation by developing an open standard for a time division
access protocol.   AAR states that narrowband channels are important for
railroads because they must simultaneously operate in a given rail yard or
adjacent yard,  and that it is currently developing an open standard to enable
industry wide interoperability.   AAR further states that it will be prepared to
commence operations after assignment of the license and that freight railroad
industry PLCT systems will be deployed in at least 300 locations in the next
three years.   Based on the described benefits in public safety, spectrum
efficiency, and spectrum flexibility, we conclude it is in the public interest
to waive section 90.713(a) and 90.717(b) to enable AAR to implement its PLCT
private system, subject to grant of the assignment application.

9. In addition, AAR seeks a waiver of section 90.715(a), which designates one
frequency in each 220 MHz channel pair as the "base station" frequency, and the
other as the "mobile station" frequency.  AAR proposes to use mobile-to-mobile
and portable-to-mobile communications on the PLCT system.  We conclude that this
associated rule waiver is consistent with our finding that the proposed PLCT
system is in the public interest.  As designed, the benefits of the proposed
system rely on the ability to implement portable-to-mobile station
communications and, absent a waiver, we agree that the PLCT system would lose
some of its functional enhancements.   In addition, we find that reversing the
base/mobile frequencies in this instance does not pose co-channel interference
concerns because AAR will be the sole nationwide licensee on this spectrum.

10. Finally, AAR requests that the Commission waive section 90.709(c), which
subjects an assignee of a Phase I nationwide 220 MHz license to the four
construction benchmarks set forth in section 90.725 of the Commission's rules.
Instead, AAR requests that it be regulated pursuant to the criterion in the 800
MHz band pursuant to Section 90.685(b), which requires a substantial service
standard for measuring the use of spectrum, including “service which is sound,
favorable, and substantially above a level of mediocre.”   We dismiss as moot
AAR’s request for waiver of this rule, because Rush has previously met the
applicable construction requirements for the 220 MHz spectrum subject to the
proposed assignment.  We also deny Access Spectrum’s Petition to Deny Rush
Network’s request for waiver, since Access Spectrum only opposed Rush’s request
for extension of time, which was dismissed as moot.

  IV.  CONCLUSION AND ORDERING CLAUSES

11. We conclude that it is in the public interest to grant AAR a waiver to
implement a private PLCT nationwide railroad communications system in the
220-222 MHz band and therefore grant, in pertinent part, AAR’s request for
waiver, subject to grant of the assignment application, ULS File No.
0001217770.

12. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Section 1.925 of
the Commission's Rules, 47 C.F.R. § 1.925, the Petition for Waiver filed by the
American Association of Railroads on February 28, 2003 is GRANTED as set forth
herein, and is otherwise DENIED.

13. IT IS FURTHER ORDERED that the Petition to Deny filed by Access Spectrum on
April 17, 2003 is DENIED.

14. IT IS FURTHER ORDERED that the Commercial Wireless Division, Licensing and
Technical Analysis Branch, SHALL PROCESS the application for assignment of
license filed by Rush Network Corp. to the Association of American Railroads,
ULS File No. 0001217770.

15. 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

    Roger S. Noel
Deputy Chief, Commercial Wireless Division
Wireless Telecommunications Bureau

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