Subject: [NEXTEL-1] WARREN C. HAVENS -Request for Forbearance from Section 80.215(h)(5) of the Commission’s Rules

From: [email-masked]
Date: Fri, 19 Dec 2003 20:42:02 -0500

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

In the Matter of

WARREN C. HAVENS -Request for Forbearance from Section 80.215(h)(5) of the
Commission’s Rules

ORDER

   Adopted:  December 15, 2003 Released:  December 19, 2003

By the Commission:

I.  INTRODUCTION

1. On March 25, 2003, Warren C. Havens (Petitioner) filed a petition for
forbearance,  under section 10 of the Communications Act, as amended (the Act),
requesting that the Commission forbear from applying section 80.215(h)(5) of the
Commission’s Rules for all current and future Automated Maritime
Telecommunications System (AMTS)  licenses or, in the alternative, for
Petitioner’s AMTS stations.  For the reasons set forth below, we deny
Petitioner’s forbearance petition.

II.  BACKGROUND

2. Pursuant to section 80.215(h)(5) of the Commission’s Rules, the transmitter
power for AMTS coast stations, as measured at the input terminals to the station
antenna, must be fifty watts or less.   Petitioner argues that application of
this rule is unnecessary because section 80.215(h)(1) of the Commission’s Rules
limits the effective radiated power (ERP) of AMTS coast stations to one thousand
watts, so there is no need to also limit the transmitter input power.
Petitioner also avers that regulating the power of AMTS transmitters solely by
ERP would provide licensees with greater flexibility in determining the best
combination of input power and antenna gain.   Petitioner states that in order
to comply with section 80.215(h)(5) and maintain the current ERP of his AMTS
stations, he must use high gain antennas, which are more expensive to purchase,
operate, and maintain than low gain antennas.   Petitioner argues that
forbearance from the section 80.215(h)(5) input power limit would enable him to
maintain the ERP of his AMTS stations with a low gain antenna, the use of which
will enable accelerated as well as lower-cost service to end users.   Based on
the foregoing reasons, Petitioner asserts that forbearance would be in the
public interest.

III.  DISCUSSION

3. We must consider whether section 10 of the Act permits the forbearance sought
by the Petitioner in this proceeding.  Under section 10 of the Act, the
Commission shall forbear from applying any regulation or any provision of the
Act to telecommunications carriers or telecommunications services, or classes
thereof, when, along with two other factors, forbearance is “consistent with the
public interest.”   We believe that the basis of the Petitioner’s request is to
afford AMTS licensees the authority to increase input power beyond fifty watts
so long as the licensee does not exceed the station’s authorized ERP.   We note,
as an initial matter, that the Petitioner’s argument is premised on a misreading
of the Commission’s rules.  Specifically, AMTS stations are not authorized for a
particular ERP; rather, they are authorized for a particular transmitter
power.   When it adopted AMTS licensing and operational rules in 1981, the
Commission, based on engineering information submitted by commenters,
specifically adopted a transmitter power limit.   In section 80.215(h)(1), the
Commission also imposed an additional limit of one thousand watts ERP for many
AMTS stations.   This additional limitation was imposed in order to allow the
use of directional antennas to reduce the interference potential to television
reception.

4. While the one thousand-watt ERP limitation in section 80.215(h)(1) serves to
reduce interference potential to television reception, the Petitioner has
submitted no engineering information establishing that we could forbear from
applying the power limitation in section 80.215(h)(5) without it resulting in
interference to other AMTS stations, or to other co- or adjacent channel
services.  We therefore cannot conclude on the present record that forbearance
would be in the public interest.  For the foregoing reasons, we deny the
above-captioned forbearance petition.  Moreover, to the extent that Petitioner
questions the basic framework for regulating AMTS interference, a
notice-and-comment rulemaking proceeding would appear to be a more appropriate
vehicle for change than a forbearance request.

5. Accordingly, IT IS ORDERED pursuant to sections 4(i), 10(c), and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 160(c), 303(r),
and section 1.53 of the Commission’s Rules, 47 C.F.R. § 1.53, the petition for
forbearance filed by Warren C. Havens on March 25, 2003, IS DENIED.

  FEDERAL COMMUNICATIONS COMMISSION

  Marlene H. Dortch
  Secretary
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-320A1.doc

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