# Petition for Writ of Certiorari — National Ass'n of Radiotelephone Systems v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 992

## Text

TABLE OF CONTENTS

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mobile radio-related activities.’’ (Pet. App. 30a). The
court notes that ‘‘independent antitrust actions’? may
be brought to challenge the anticompetitive effects re-
sulting from the Commission’s order.

We must respectfully suggest that this reasoning
is insupportable and bewildering. The court does not
question—it affirms—that the FCC order will vest
Motorola with power to injure or destroy competition
in mobile radio communications because of the vertical
integration that it authorizes. Cf., United States v.
Poa: ‘mount Pictures, 334 U.S. 131, 174 (1948). This
power is the direct consequence of the Commission’s
order. The court’s conclusion is in conflict with estab-
lished antitrust law and with Gulf States Utilities Co.,
supra; it is in violation of the ‘‘ public interest”’ stand-
ard as construed by this Court; it is directly contrary
to the provision of the Communications Act specifically
providing that the antitrust laws are applicable to
‘*manufacture and sale of’’ radio apparatus. 47 U.S.C.
\ 315. Further, the court’s affirmance of the order with
respect to Motorola on the basis that future ‘‘inde-
pendent antitrust actions’? may be brought is an er-
roneous view of the responsibility of an appellate court
reviewing agency action.

We respectfully submit that the reviewing court is
not justified in affirming agency action in the face of
antitrust findings such as those in this case, and re-
mitting the parties and the public interest to possible
remedies after the damage is done.

b. FPC v. Texaco, Inc., and deregulation. In affirm-
ing the Commission’s extraordinary departure from
the mandate of the Communications Act in the inter-
ests of deregulation, the Court of Appeals does not

BLEED THF OUGH

Webehch aaa

25

cite or discuss this Court’s holding in FPC v. Texaco,
Inc., 417 U.S. 380 (1974). In that case, on the basis
of a rulemaking proceeding and a public interest ra-
tionale of much greater force than in the present case,
the FPC had substituted for the rate regulation pro-
cedures and standards of the Act (15 U.S.C. §§ 717e
and 717d), a ‘‘regulatory plan’’ by which adjustments
and refunds would be made in the rates charged by
small producers of natural gas if the market prices
realized were unreasonably high. This Court set aside
the FPC’s order. It ruled that the FPC does not have
the power ‘‘to set at naught an explicit provision of
the Act’”’ (417 U.S. at 394), or to substitute for regula-
tory jurisdiction which the Act mandated, a scheme by
which the market place would be the regulator (pre-
cisely what the FCC purports to do in the present case).
417 U.S. at 395-399. As Mr. Justice White observed,
writing for the unanimous Court, the Act ‘‘does not say
a little unlawfulness is permitied’’. 417 U.S. at 399.

In the present orders, the FCC does not even pur-
port to comply with the Act by substituting a different
type of regulation. It boldly affirms that its purpose
is completely to deregulate: in the Commission’s words,
‘to shed this heavy cloak [common carrier provisions
of the Act] and exchange it for one with far greater
flexibiiity’’. (Pet. App. 59a). To achieve this goal, the
FCC created a category of entrepreneurs which, as
the Court of Appeals stated, ‘‘are not required to be-
have and thus be regulated, as common earriers’”’.
(Pet. App. 29a). The Commission totally relieved the
for-hire for-profit purveyors of entrepreneurial com-
munications services to the publie (the SMRS) from
the substantive and procedural regulations of the Act:
from the hearing requirements—frequencies are to be
assigned ona ‘first-come, first-served”’ basis (Pet. App.

Se pif SNM ADLER LEAH LEONE LELAND ELISE OT HITE I

26

7a); from the requirement that their charges, prac-
tices, ete., be just and reasonable (47 U.S.C. § 201(b)) ;
from the prohibition against unjust or unreasonable
discrimination in charges, practices, ete., and unreason-
able preferences (47 U.S.C. § 202(a)); from state jur-
isdiction and oversight over intrastate operations (47
U.S.C. §§ 152(b) and 221(b)) ; from the required show-
ing of character and financial qualifications (47 U.S.C.
§ 308(b)) ; from the prescribed public notice and wait-
ing period (47 U.S.C. §309(f)); and from the right
of parties in interest to contest license applications
(47 U.S.C. §309(d)). Cf. Ashbacker Radio Corp. v.
FCC, 326 U.S. 327 (1945).

It did so in the interests of a grand design to pro-
mote more effective use of the spectrum, as it con-
ceived of it, and to avoid procedural burdens. But
neither these nor any other objectives sanction Com-
mission defiance of the statute. It is supposed to ad-
minister the statute, not to violate or rewrite it. As
stated by this Court in Tezaco: ‘‘The Commission may
have great discretion as to how to insure just and rea-
sonable rates, but it is plain enough to us that the Act
does not empower it to exempt small producer rates
from compliance with that standard.”’ 417 U.S. at 394.

ce. Head v. New Mexico Board of Examiners; Flor-
ida Lime and Avocado Growers v. Paul; preemption.
This Court has repeatedly insisted that federal pre-
emption of state authority is a power that must be
exercised only in clear cases and upon a clear showing.
The test is that state statutes may not be preempted
unless there is found ‘‘ ‘such actual conflict between
the two schemes of regulation that both cannot stand
in the same area, [or] evidence of a congressional de-
sign to preempt the field.’ Florida Lime and Avocado

BLEED THROUGH

27

Growers v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210,
1217.’’** The congressional design in the present case
is precisely the opposite. It affirmatively prescribes
state jurisdiction which is the basic regulatory ma-
chinery of the Act. And certainly, there is no evidence
of ‘‘actual conflict between the two schemes of regula-
tion.’’ They have existed side-by-side for more than
30 years during which the industry has experienced
remarkable growth and development and public serv-
ice has expanded spectacularly.

Obviously, this is in precise contradiction of the
standards set by this Court (supra). The Commission
rested its decision to ‘‘preempt’’ on the grounds of
‘federal primacy’’—a claim of power which violates
our concepts of federal-state relationships and the
clear directions of this Court.

The Court of Appeals affirmed the Commission’s
preemption order, but on a somewhat different ground.
The court held that since the Commission had ex-
cluded the SMRS, as a matter of federal law, from
regulation as common carriers, ‘‘it follows that any
state regulation inconsistent with the policy adopted
may be pre-empted’’. As we shall discuss, the court’s
basic premise—that the Commission may validly ex-
clude the SMRS from regulation under federal law—is
clearly incorrect. They are ‘‘common ecarriers’’ and
must be subjected to regulation under federal and state
law as such. In any event, we submit that agency pre-
emption of state authority in a rulemaking proceeding,
prior to any experience, is at least suspect. In fact, if
the SMRS are not common carriers, preemption would
be idle and unnecessary since the state regulatory stat-
utes apply only to ‘‘common carriers.’’ If the SMRS are

1° Head v. New Mexico Board of Examiners, supra, 374 U.S. at
430. }

28

common carriers, as we submit, preemption is a sub-
version of the clear, explicit mandate of the Com-
munications Act and can, at best, be explained as based
upon anticipated convenience and not upon the ‘‘actual
conflict’ required by this Court’s standard.

d. SEC v. Chenery Corp: rule governing appellate
review of agency action. As we have described, the
Court of Appeals sustained the Commission’s decision
to deregulate the SMRS, but it rejected the Commis-
sion’s basis for deregulation. The Commission held that
it had discretionary authority to classify operators
as common carriers or non-common carriers. The
Court of Appeals emphatically rejected this claim of
‘‘unfettered discretion in the Commission to confer
or not confer common carrier status”? (Pet. App. 26a).
But it then proceeded to support the Commission’s
conclusion by holding that the SMRS are not common
carriers. Its basis was that, although the order au-
thorized the SMRS to serve the public, they might
choose not to do so, but to serve only selected custo-
mers.

The Commission, however, proceeded on the prinei-
ple, an essential part of its design, that service to the
publice—to the vast category of potential users—would
be provided by the SMRS. It assumed that the SMRS
would offer its service ‘to whatever public its service
may legally and practically be of use’? (Pet. App. 23a).
It made no other provision for general publie access to
the vast public domain which it allocated, except for the
cellular systems which are not expected to be in opera-
tion until the 1980s,

The Court of Appeals, seeking a way to affirm the
deregulation order, undermined this basic part of the
Commission’s order. In effect, the court’s action would
penalize any SMRS that offered to serve the public
generally. It would then, according to the court, be

RLEED THF OUGH

29

operating as a common carrier, and since it would not
be in compliance with the regulatory provisions of the
Act and of state law, it would be operating illegally.

The court’s decision that the SMRS are not common
carriers is incorrect, as we shall show. But, apart from
this, its grounds for sustaining deregulation are in
clear conflict with the principle which this Court has
characterized as ‘‘a simple but fundamental rule of
administrative law,’’ SEC v. Chenery Corp., 332 U.S.
194, 196 (1947), namely, that ‘‘an administrative or-
der cannot be upheld unless the grounds upon which
the agency acted .. . were those upon which its action
ean be sustained.’’ SEC vy. Chenery Corp., 318 U.S.
80, 95 (1948).

3. The Common Carrier Issue. The Court of Ap-
peals sustained the Commission’s deregulation of en-
trepreneurs authorized to serve the public on a for-
hire, for-profit basis (SMRS) on the grounds that
they are not ‘‘common carriers”’ as defined in the Act,
although, the court stated, they might become common
earriers if, as authorized by the Commission’s order,
they should in practice offer to serve the public gen-
erally.” The Court conceded that ‘it is undisputed
that they [the SMRS] would be permitted [under the
Commission’s order] so to hold themselves out if they
desired’’ (Pet. App. 26a); but it concluded that this
‘is not a sufficient basis for imposing the burdens that
go with common carrier status.’’ (Ibid.).

20The Commission’s second order purported to restrict the
SMRS to provide service only to ‘‘eligibles’?’ under Parts 89, 91
and 93 who may qualify for ‘‘private user’’ status. But these
‘‘eligibles’’ include virtually all conceivable members of the public
who might seek mobile radio service. The Court of Appeals rejected
the obviously spurious and insupportable suggestion that this
device converts the SMRS into some sort of ‘‘private’’ rather than
‘‘public’’ carrier (Pet. App. 23a).

30

The definition of ‘‘common carrier’? (47 U.S.C.
§153(h)) is an issue of recurring importance under
the Communications Act.” It is also of great impor-
tance with respect to the administration of other reg-
ulatory statutes, such as the Interstate Commerce Act,
the Federal Aviation Act and the Shipping Act, par-
ticularly in light of the current public debate concern-
ing deregulation. This Court has not ruled upon the
question for purposes of the Communications Act, but
should do so.

We respectfully submit that the decision of the court
below is clearly in error. The SMRS, under the FCC’s
order, are authorized and expected to serve the public.
Where an entrepreneur is granted a franchise to serve
the public under the Act, he is obliged to serve the
public. The Communications Act provides that a com-
mon carrier must serve the public ‘‘upon reasonable
request’’. 47 U.S.C. § 201(a). Classification as a com-
mon carrier does not depend upon whether he in fact
fulfills the obligation that is implicit in his license to
serve the public. It may be true that common carrier
status ean be voluntarily incurred by performance, i.e.,
by offering service to the public; but it does not follow,
logically or legally, that voluntary non-performance

21 See, e.g., National Association of Regulatory Utility Commis-
toners v. FCC, No. 75-1075, — U.S. App. D.C. —, — F.2d —
(February 10, 1976) (use of cable television access channels for
two-way point-to-point non-video communications service is common
carriage); Frontier Broadcasting Co. v. Collier, 24 F.C.C. 251
(1958) and Philadelphia Television Broadcasting Co. v. FCC, 123
U.S. App. D.C. 298, 359 F.2d 282 (1966) (conventional CATV
systems not common carriers); Computer Inquiry, 28 F.C.C, 2d
267 (1971) (establishing standards for distinguishing between
data processing services and common carriage involving data com-
munications) ; Industrial Radiolocation Service, 5 F.C.C. 2d 197
(1966) (radiolocation service not communications common car-
riage).

LO US SER ORR RTA. A HN TRESS HT A BELT AMATI AN TRE AIIM,

BLEED THROUGH

31

relieves a common carrier of his responsibilities to be
licensed and regulated under law.

The Communications Act contains no provision for
exempting common carriers from its regulatory pro-
visions. It contains no provision for ‘‘contract’’ car-
riers who may pick and choose among the public to be
served. On the contrary, it permits only the licensing
of operators for their own private use, on a single or
cooperative basis, or as common carriers to serve the
public without discrimination and on ‘‘reasonable re-
quest’’.”?

The FCC recognized that the ‘‘entrepreneur-oper-
ated’? SMRS ‘‘could be licensed as common carriers
and regulated under Title IT of the Communications
Act”? (Pet. App. 54a). It decreed that it would not
do so on the grounds that it had discretion to make
such a decision—a conclusion which it admitted was
‘‘not free from doubt’’. The Court of Appeals rejected
its claim of ‘‘unfettered discretion’’, but then errone-
ously proceeded to construct a definition which, if al-
lowed to stand, would undermine the fundamental pur-
pose of the common carrier requirement: to require in-
discriminate service to all of the public in exchange
for the right to use the public domain ‘‘for-profit’’ and
‘*for-hire’’, on an entrepreneurial basis.

We submit that the decision below is in error and
that it is of such great importance that this Court
should review the issue.

4, The Preemption Issue. As discussed above, the
FCC’s claim of power to preempt, and the Court of
Appeals’ refusal to reverse its preemption decision, are

22 See, e.g., United States v. Drum, 368 U.S. 370, 375, 376 (1962)
(Motor Carrier Act of 1935) (application of the concept requires
‘‘reference to the clear but broad remedial purpose of a regula-
tory statute committed to agency discretion’’).

32

clearly erroneous. This is a recurring issue of vital im-
portance which this Court should review.”

5. The Function of Appellate Review. This Court
should grant review of the question precipitated by the
decision of the court below: the function of an appellate
court reviewing an administrative order in a rulemak-
ing proceeding: viz., whether it is the reviewing court’s
duty to decide the issues presented, and not to rubber-
stamp agency action, despite substantial infirmities, on
the grounds that future private or administrative ac-
tion may be available.”

The Court of Appeals in this case made findings of
palpable departures hy the FCC from the mandate of
the Communications Act and the law with respect to

22The FCC's power to preempt state regulation is also being
addressed by Courts of Appeals in various other current or pend-
ing cases where the FCC has recently asserted such power. See,
e.g., National Association of Regulatory Utility Commissioners v.
FCC, No. 75-1075, — U.S. App. D.C. —, — F.2d — (February
10, 1976) (FCC preemption of state jurisdiction over cable tele-
vision leased access channels used for two-way point-to-point non-
video communications services set aside) ; Telerent Leasing Corp.,
45 F.C.C. 2d 204 (1974), appeal pending North Carolina Utilities
Commission v, FCC, No, 74-1220, ef al., (4th Cir.) (FCC preemp-
tion of state jurisdiction over telephone station equipment) ; AT&T,
56 F.C.C. 2d 14 (1975), appeal pending California Public Utilities
Commission v. FCC, No, 75-2060, et al., (D.C. Cir.) (ICC pre-
emption of state jurisdiction over FX and CCSA private line
service interconnection) ; Interstate and Forcign Message Toll Tele-
phone Service, 56 ¥F.C.C. 2d 593 (1975), appeal pending North
Carolina Utilities Commission v. FCC No. 76-1002, et al., (4th
Cir.) (FCC preemption of state jurisdiction over customer-pro-
vided telephone equipment).

24The Administrative Procedure Act, 5 U.S.C. § 706(2), pro-
vides that a reviewing court shall ‘‘hold unlawful and set aside
agency action... found to be... not in accordance with law;

. . in excess of statutory jurisdiction, authority or limitations,
or short of statutory right’’.

Re SO a

33

the antitrust component of the ‘‘public convenience,
interest or necessity’’ standard of the Act and its com-
mon carrier requirements. But the Court of Appeals
refused to set aside the Commission’s order on the
apparent grounds that attack should await implemen-
tation of the order.

The Court of Appeals says that the cellular system
allocation ‘‘may be subject to successful challenge at
some future date’’ (Pet. App. 16a) ; it affirms the un-
precedented authorization to Motorola to obtain li-
censes to operate base stations and to deploy its verti-
cally integrated power, which, it acknowledges, ‘‘could
discourage competition’? and ‘‘may provide cause for
independent antitrust actions’ at a later date; it holds
that the FCC order authorizes the SMRS to operate as
common carriers, and that if ‘‘SMRS in practice be-
have as common earriers,’’ the FCC’s order ‘‘will be
open to renewed attack’’. (Pet. App. 33a). Despite all
of these infirmities, the Court of Appeals affirmed.

Petitioner submits that the court’s affirmance of the
FCC’s order, despite this extraordinary series of legal
infirmities in the order, and its insistence that effective
judicial review must wait until the damage is done,
is a novel and important restriction of the function and
duty of a reviewing court in a rulemaking proceeding
which should be reviewed by this Court.

34

For the reasons stated, a writ of certiorari should
issue to review the judgment and opinion of the United
States Court of Appeals for the District of Columbia
Circuit.

Respectfully submitted,

ABE Fortas

Kennetu E. HarpMan
Fortas AND KoveN
1200 Twenty-ninth Street, N.W.
Washington, D. C. 20007
Telephone (202) 337-5700

Attorneys for Petitioner
National Association of
Radiotelephone Systems

February 25, 1976

TABLE OF CONTENTS
Page

APPENDIX A, Opinion of the United States Court
of Appeals for the District of Columbia Circuit .. 1a

APPENDIX B, Second Report and Order of the Fed-
eral Communications Commission .............. 34a

APPENDIX C, Memorandum Opinion and Order (Re-
consideration) of the Federal Communications
PE SbwkndgotuiNenadecdadbuscachedbacs 135a

APPENDIX D, Memorandum Opinion and Order of
the Federal Communications Commission Denying
Further Reconsideration ...................... 267a

APPENDIX E, Federal Communications Act of 1934,

as amended, 47 U.S.C. § 151 et seq. ............. 274a
DUMARi chi 045 1s 6s Gv dehegedahecancendes snl 274a
| RAP ery ha een nt 275a
EEN Sdnestdees nGsnbpeeenatd danse vebenkinl 276a
DE ckacannnes 4444s saben doeneussiveawened 277a
BEE SSG 05 aden Skandia ds kuaue eke terinreun 278a
DEE dekéaedikdbba nls cisaeeenreteh teat 278a
DE Hea Nidep sak esedadanendexekscacesuewe 279a
DE SLAs abe eNed eRedweeedh each eea en sn el 280a
Berrie pcs oe porn ramrre Oe 282a
Agia need wan pies eaxde ona endsesneorie 283a
DM Lchivaevestetskvehedvededeeenedeebant 288a
DE Geacebwavesavkvekeekneeaeese abate 289a
SE Sete iu cchenguchsadegeadeak chee eeeubel 291a

APPENDIX F, Federal Administrative Procedure
ee es ee OO ov vnnne ba dadvcevenzent 293a
SU Saas Vuhele goes sun eevasaiWevbeelweewne 293a

SSRs 8S IPED

BLEED THROUGH

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

NATIONAL ASSOCIATION OF RADIOTELEPHONE SYSTEMS,

Petitioner,
Vv.

FEDERAL COMMUNICATIONS CoMMISSION, et al.,
Respondents.

PETITIONER’S APPENDIX

la

[654]
APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 74-1555, 74-1585, 74-1659, 74-1696.

NaTIoNAL AssociaTION OF ReGuLATORY UTILITY
Commissioners, Petitioner,
v.

FreperaL CoMMUNICATIONS CoMMISSION
and United States of America, Respondents,

American Telephone and Telegraph Company, the Na-
tional Association of Business & Educational Radio,
Inc., General Electric Company, the Special Industrial
Radio Service Assn., Inc., the Central Committee on
Telecommunications of the American Petroleum Insti-
tute, Utilities Telecommunications Council, North Caro-
lina Utilities Commission, South Carolina Public Serv-
ice Comm., the People of the State of California and
the Public Utilities Commission of the State of Cali-
fornia, Intervenors.

NationaL AssociaTION oF RaDIOTELEPHONE SysTEMs,
Petitioner,
v.

FeperaL Communications Commission and United States
of America, Respondents, The National Assn. of Busi-
ness & Educational Radio, Inc., A. T. & T. Inc., General
Electric Co., Special Industrial Radio Service Assn.,

2a

Inc., Motorola, Inc., and Airsignal International, Inc.,
Intervenors.

Inurnois Association OF RaDIOTELEPHONE Systems, Inc.,
Petitioner,
v.

FreperaL Communications Commission and United States
of America, Respondents, American Telephone and
Telegraph Company, National Association of Business
& Educational Radio, Ine., and General Electric Com-
pany, Intervenors.

Ram Broapcastinc Company, Petitioner,
v.

FreperaL ComMMuUNICcATIONS CoMMISSION
and United States of America, Respondents,

National Association of Business and Educational Radio,
Ine., and General Electric Company, Intervenors.

[655]
Argued 12 Sept. 1975.

Decided 5 Jan. 1976.

[657]
Petitions for Review of an Order of the Federal

Communications Commission.
Kenneth E. Hardman, Washington, D.C., with whom

Paul Rodgers, Washington, D.C., was on the brief for peti-
tioner in No. 74-1555.

Abe Fortas, Washington, D.C., for petitioner in No. 74-
1585.

3a

John EK. Ingle, Counsel, F.C.C., with whom Ashton R.
Hardy, Gen. Counsel, Daniel M. Armstrong, Acting Asso-
ciate Gen. Counsel, F.C.C. and Carl D. Lawson, Atty.,
Dept. of Justice, were on the brief for respondents. Jo-
seph Marino, Associate Gen. Counsel, F.C.C., at the time
the record was filed, also entered an appearance for re-
spondent F.C.C. Howard E. Shapiro, and Roger B. Ande-
welt, Attys., Dept. of Justice, entered an appearance for
respondent, United States of America in Nos. 74-1555 and
74-1585.

John P. Bankson, Jr., Washington, D.C., for intervenor
National Ass’n of Business and Educational Radio, Ince.

Louis Schwartz, Robert A. Woods and Lawrence M. Mil-
ler, Washington, D.C., were on the brief for petitioner in
No. 74-1659.

[658] James A. Koerner, Washington, D. C., was on a
statement filed in lieu of a brief, for petitioner in No.
74-1696.

Charles A. Horsky, Charles Lister, Washington, D. C.,
Alfred C. Patroll and F. Mark Garlinghouse, were on the
brief for intervenor American Telephone and Telegraph
Co. in Nos. 74-1555—74-1585 and 74-1659. Michael Boudin,
Washington, D. C., also entered an appearance for inter-
venor American Telephone and Telegraph Co.

Wayne V. Black and Larry S. Solomon, Washington,
D. C., were on the brief for intervenor Special Industrial
Radio Service Ass’n, Inc., in Nos. 74-1555 and 74-1585.

Joseph KE. Keller, Wayne V. Black and Larry S. Solo-
mon, Washington, D.C., were on the brief for intervenor
The Central Committee on Telecommunications of the
American Petroleum Institute in No. 74-1555.

RE Di ei et tak cx ound hate ean ks Ne eek

4a

Charles M. Meehan and Peter M. Nemkov, Washington,
D. C., were on the brief for intervenor, Utilities Telecom-
munications Council.

Edward B. Hipp and Robert F. Page, Raleigh, N. C.,
were on the brief for intervenor North Carolina Utilities
Commission.

Richard D. Gravelle, J. Calvin Simpson, San Francisco,
Cal., and Randolph W. Deutsch were on the brief for in-
tervenors State of California and the Public Utilities Com-
mission of the State of California.

Frederick M. Rowe, John L. Bartlett and John B. Wyss,
Washington, D. C., were on the brief for intervenor Mo-
torola, Ine., in No. 74-1585.

Joseph M. Kittner and Edward P. Taptich, Washington,
D. C., entered appearances for intervenor General Electric

Co.

Robert E. Conn and Thomas J. McCabe, Washington,
D. C., entered appearances for intervenor Airsignal Inter-
national, Inc., in No. 74-1585.

M. John Bowen, Jr., Columbia, S. C., entered an ap-
pearance for intervenor South Carolina Public Service
Commission in No. 74-1555.

Before Tamm, MacKinnon and Witkey, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wi_key.

Wirxey, Circuit Judge:

Petitioners seek review of a two-part 1975 F.C.C. Mem-
orandum Opinion and Order’ (hereinafter 1975 Order),
filed in a rulemaking proceeding of which notice was first

1Land Mobile Service, Docket No. 18262, 51 F.C.C.2d 945 (19
March 1975); Land Mobile Service, Docket No. 18262 (16 July
1975) (Proceeding terminated) (J.A. at 537-540).

da

given in 1968.2 The Order under review adopts the basic
approach, with some modification, of a Second Report and
Order,’ (hereinafter 1974 Order), which issued after two
rounds of comment had been received. This Court has jur-
isdiction to review the Orders under 47 U.S.C. § 402 (1970)
and 28 U.S.C. § 2342 (1970).

The Orders under review deal with the allocation of fre-
quency spectrum, in the 806-921 MHz band, to the land
mobile radio service, and with the development of regu-
lations pertaining to the future use of that spectrum. Land
mobile radio services are radio communication serv-
[659] ices, based on land, where either the transmitting
or receiving station is mobile.‘

Such services are of two general types. Public services
are operated by common carrier licensees and made avail-
able to members of the public. The most common type of
public services are radio telephone services which inter-
connect with existing telephone systems. Private services
apparently include all other mobile radio operations, 7. e.,
those not subject to common earrier regulation. They are
predominantly dispatch services such as those operated by
police departments, fire departments, and taxicab compa-
nies, for their own purposes. However, they are not limited
to services which an operator provides only to itself, but
also extend to services provided to a limited group of
users by third party operators.

The 1974 Order, as modified by the 1975 Order, embodies
three distinct actions. First, it allocates a total of 40 MHz
on the 900 MHz band (825-845 MHz and 870-890 MHz)

* Notice of Inquiry and Notice of Proposed Rule Making, Land
Mobile Use of 806-960 MHz Band, Docket No. 18262, 14 F.C.C.2d
311 (17 July 1968).

% Land Mobile Radio Service, Docket No. 18262, 46 F.C.C.2d 752
(1 May 1974).

*47 C.F.R. § 2.1 (1974).

Fae POS ¥e =. ‘ : — mio 2 A eee rt PT 25h a ed
PISS Nas Sie DRT PST, NORPRO ER a Pe FOR ?

oy
A
a

6a

to the development of a nationwide, broad-band ‘‘cellular’’
mobile radio communications system. (Initially, the Com-
mission intends to authorize use of the minimum spectrum
needed for developmental systems.)* Through the use of
expensive and sophisticated new technologies, the cellular
system will make possible more traffic intensity per unit of
spectrum than do present mobile communication methods.
When operative, which will not be before 1978, it is ex-
pected greatly to increase capacity for mobile communi-
cations in urban areas over what is now available. The
cellular system is clearly a public, common carrier system,
and will serve primarily to expand the capacity of radio
telephone service.

The 1974 Order limited the group of eligible applicants
for licenses to operate on these bands, to wireline (tele-
phone) earriers.. The 1975 Order removed this limitation
and extended eligibility to radio common carriers as well.’
Any applicant for a license will nonetheless be required
to demonstrate that it has the resources and technology
for rapid development of a cellular system." As well as
providing radio telephone service, cellular systems are
to be allowed to engage in dispatch operations.’ 46> Beers
pee et ee Le tt tt teed

Second, 50 MHz (806-821 MHz and 851-866 MHz) is al-
located to private services, to be licensed to operators in
the Public Safety, Industrial and Land Transportation
areas, as authorized under 47 C.F.R. 6§ 89, 91, 93. Thus,
under existing regulations, this allocation makes available

°46 F.C.C.2d at 761.

* Id. at 760.

751 F.C.C.2d at 953.

“Id. at 955.

® Jd. at 952, 46 F.C.C 2d at 761.

* Modification per 22 Jan. 1976 Order uf the Court of Appeals.

ee ae ee |

ta fee PF. OE. SUS

7a

additional spectrum for eligible applicants who wish to
obtain a license to operate a station, either for their own
private purposes, or, with several other eligibles, on a
non-profit, cost-sharing basis."* In addition, the Orders
would create a new category of private mobile operators,
eligible for licensing on the 30 MIIz presently being allo-
cated. This new category of operators, known as Special-
ized Mobile Radio Systems (SMRS), would operate on a
commercial basis to provide service to third parties.
[660] Licensing is to be on a first-come, first-served basis,
with SMRS applications treated no differently than
those of other private applicants.'' Because it secks to uti-
lize a profit motive to speed development and refinement
of mobile radio technologies, the Commission concludes
that SMRS should not be subject to the common carrier
regulations of Title II of the Communications Act,” and
that state certification of SMRS should be pre-empted.”

Third and last, the 1975 Order designates the remaining
45 MHz of the total 115 MHz allocation for reserve and
future growth. This aspect of the Order is not challenged
in this proceeding.

I. 40 MHz Allocation for the Creation of Cellular Systems

The power to make this allocation of spectrum for the
development of sophisticated and band-efficient cellular
systems arises, if at all, under 47 U.S.C. § 303(c) and (g)
(1970)."° Section 303 sets forth the Commission’s power

47 CFR. § 89.604 (1974).
"O51 F.C.C.2d at 956-57.
46 F.C.C.2d at 762.

"91 F.C.C.2d at 974.

* Id. at 946.

"47 U.S.C. §303(¢) and (g) (1970) provides:
Except as otherwise provided in this chapter, the Commis-
sion from time to time, as publie convenience, interest, or

'
‘
:
?
>
°
r

8a

and duties in the regulation of radio, and states that the
exercise of all powers should be guided by the require-
ments of ‘‘public convenience, interest, or necessity.’’

The authorizations of powers under subpart (c) to as-
sign bands of frequencies to various classes of stations,
and under subpart (g) to provide for experimental uses
and encourage the more effective use of radio, appear
on their face to justify the allocation at issue here. How-
ever, it has been challenged on a variety of grounds, as
exceeding the discretion allowed the Commission under the
public convenience, interest or necessity standard.

First, the argument is made that the allocation is exces-
sive in light of both the technological requirements for the
development of cellular systems, and the extent of need
which the system will ultimately satisfy. It appears there
is substantial uncertainty as to how much spectrum will
be necessary or desirable for the functioning of cellular
systems, which are now in the developmental stage at
least three years away from operation. In its tentative
First Report, which preceded the 1974 and 1975 Orders
now under review, the Commission proposed an allocation
of 75 MHz." After substantial negative comment was re-

necessity requires, shall
. . 7m > * . . . .

(c) Assign bands of frequencies to the various classes of
stations, and assign frequencies for each individual station
and determine the power which each station shall use and
the time during which it may operate;

a . > . . * . . .

(g) Study new uses for radio, provide for experimental
uses of frequencies, and generally encourage the larger and
more effective use of radio in the public interest.

First Report and Order, Spectrum Space for Land Mobile
Services, Docket No. 18262, 19 Pike & Fischer R.R.2d 1663, 1664
(1970).

9a

ceived, including reports by the Department of Justice *
and the Office of Telecommunications Policy,’* the con-
clusion [661] was reached in the 1974 Order to reduce
the allocation to 40 MHz.”

AT & T, which initially proposed the cellular system
and is the company now most deeply involved in its devel-
opment, argued in response to that Order for an increase
of the allocation to 64 MHz. It argued that the proposed
reduction to 40 MHz would substantially increase the im-
plementation cost of ‘‘attractive’’ design features then
under development.” At the other extreme, the Report
of the Office of Telecommunications Policy, written in 1973,
concludes that 14 MHz should be adequate for the devel-
opment of a cellular system to meet projected mobile tele-
phone needs.”

The Orders under review reveal that the Commission
has given serious consideration to the arguments raised
as to the extent of the allocation. They reveal also that
the determination of how much band width to allocate to
cellular systems is at once a highly technical and somewhat
speculative undertaking. The amount of spectrum that is
appropriate depends upon an estimate of the nature and
capabilities of technology that is now only partially devel-

OR

DTA ep gnty

** Letter (undated) from the Assistant Attorney General, Anti-
trust Division, U. S. Department of Justice (hereinafter Justice
Dept. Report). (J.A. at 345-353).

* Letter dated 17 August 1973, from the Director, Office of Tele-
communications Policy, and enclosed comments (hereinafter OTP
Report) (J.A. at 328-44).

* 46 F.C.C.2d at 756.
7°51 F.C.C.2d at 948.

** (J.A. at 333). Also, Motorola has argued in some detail that
an allocation of 19 MHz would be sufficient. Motorola Reply Com-
ments at 68-84. (J.A. at 245-70).

2 51 F.C.C.2d at 948 ; 46 F.C.C.2d at 756-57.

a PTE RS NEGRO TEPER ETRE ONE TG TLE LPT, CLINE RE eee |

BPOLEMEDE BPA

PR TRAM RPM STRSTR EO RSE OR Re

10a

oped, and upon projected demands for radio telephone
service.

We conclude that such determinations are precisely the
sort that Congress intended to leave to the broad discre-
tion of the Commission, by imposing a broad public con-
venience, interest, or necessity standard. In cases of such
broad delegations to expert agencies, the standard of re-
view is that of the reasonableness of the conclusions
reached.** In light of the wide ranging arguments as to
appropriate spectrum width, we cannot say that the alloca-
tion of 40 MHz to this experimental mobile radio system
was either unreasonably large or unreasonably small.

More substantial arguments are raised pertaining to
possible anticompetitive effects of the 40 MHz allocation.
It is alleged, first that the allocation will prove in effect to
be a grant to the Bell system of monopoly power over the
urban radio telephone market. Second, it is stated that the
authorization of dispatch service (in all but fleet-dispatch
capacities)** to be performed by cellular systems will re-
sult in a substantial impairment of competition in the now
highly competitive dispatch market. Both of these results
are said to put the Order in violation of the antitrust com-
ponent of the public convenience, interest or necessity
standard.**

23 United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742,
749, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972); S. BE. C. v. New Eng-
land Elec. Sys., 390 U.S. 207, 211, 88 S.Ct. 916, 19 L.Ed.2d 1042
(1968); Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 86 L.Ed.
301 (1941).

** 51 F.C.C.2d at 952 and n. 16; 46 F.C.C.2d at 761.

25 There is a good deal of authority for the proposition that com-
petitive factors may properly be considered by the Commission
under the public convenience, interest or necessity standard. See
United States v. R. C. A., 358 U.S. 334, 351, 79 S.Ct. 457, 3 L.Ed.2d
354 (1959); F.C. C. v. R. C. A. Comm., Inc., 346 U.S. 86, 94, 73
S.Ct. 998, 97 L.Ed. 1470 (1953); N. B. C. v. United States, 319

ok to telly

ee

lla

[662] On the face of the record, there appears to be
a significant plausibility of both of these assertions.
While the Order provides for separate licensing of individ-
ual cellular systems, and no explicit grant of monopoly
rights to AT & T is made, there is good reason to believe
that AT & T will operate most, if not all, of the cellular
systems eventually put in operation. The cellular system
was initially proposed by AT & T* in response to the
Commission’s First Notice of Inquiry on this Docket, and
AT & T has already made a substantial investment in its
development. In spite of the 1975 Order’s determination
to allow other than wireline carriers to compete for the
opportunity to operate cellular systems, the Commission
itself still believes that only wireline carriers will be able
to demonstrate that they have the resources and expertise
which are a prerequisite to licensing.”

If it is thus true that AT & T is the likely recipient of
a virtual monopoly in the operation of cellular systems,
this will result in significant increases in its market pow-
er, where cellular systems are operative, in two fields apart
from traditional wireline communications.

First, AT & T appears likely to dominate substantially
the field of radio telephone service, which has heretofore
been occupied in significant part by small radio common
carriers operating in a highly competitive environment.**

US. 190, 223, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); Radio Relay
Corp. v. F. C. C., 409 F.2d 322, 326 (2a Cir. 1969). But sec
Hawaiian Telephone Co. v. F. C. C., 162 U.S.App.D.C. 229, 235,
498 F.2d 771, 777 (1974) (F.C.C. may not ‘‘automatically equate
the public interest with additional competition.’’).

Whether and to what extent decisions of the Commission are
reversible for failure to consider particular factors is much less
clear.

7646 F.C.C.2d at 753-54.
*7 51 F.C.C.2d at 953.
** OTP Report, supra note 18, at 8 (J.A. at 337).

BP SE RNS

12a

This threat is made more severe by the 1975 Order’s elim-
ination of a requirement that wireline operators offer to
interconnect radio common carriers into their systems.”
Such substantial domination would be undesirable both
because it would weaken incentives for development of
improved mobile radio systems,*° and because it would
enhance the already enormous overall economic power of
the Bell System.

Second, AT & T will become a significant force in the
now highly competitive market for private dispatch serv-
ices." [663] Whether it will be able to dominate that
market presently appears difficult to determine. One sig-

7°51 F.C.C.2d at 946. See OTP Report. supra note 18, at 12
(J.A. at 341); Justice Dept. Report, supra note 17, at 7 (J.A.
at 351).

This part of the Commission's decision is somewhat puzzling. A
substantial anticompetitive impact seems almost inevitable and
the Commission has given no justification for dropping the inter-
connection requirement except to say that such intereonnection is
“‘unnecessary”’ in light of its decision not to license trunked
systems. We agree with the original recommendations of the Office
of Telecommunications Policy and the Justice Department that
nondiseriminatory interconnections must be assured, but await the
proof by the results.

%° Justice Dept. Report, supra note 17, at 2 (J.A. at 346).

*' It is unclear whether the authorization to engage in dispatch
service is in violation of the 1956 Western Electrie consent decree.
That decree bars AT & T from engaging ‘‘in any business other
than the furnishing of common carrier communications services, ”’
but excepts from the bar ‘‘services incidental to the furnishing
. . . of common carrier communications services.’ United States
v. Western Elec. Co., Civ. No. 17-49, 1956 Trade Cas. § 68,246, at
71,138 (D.N.J. 1956).

Because of our general disposition of these competitive issues,
see infra, we reserve for decision in a future case the issues of
whether the dispatch services to be carried on by AT & T can
be characterized as ‘‘common carrier communications services,”’
and if not, whether the dispatch services carried on are ‘‘inci-
dental.’’

—— - - -~+0t forth the authoriza-
tions for two types-of eooperatine enterprises achieh pradate+the

[Under 47 C.F.R. § 89. 604 (a) and (b), several operators may be
separately licensed to use a single system.] Such systems, known
as ‘‘community repeaters,’’ were explicitly approved by the Com-
mission in 1970. Memorandum Opinion and Order, Multiple Liecns-
ing—Safety and Special Radio Services, Docket No, 18921, 24
F.C.C.2d 510 (15 July 1970).

651 F.C.C.2d at 956-57. In processing applications for use of
the 30 MHz allocated by this Order, the Commission intends to
consider those of commercial enterprises ‘‘on the same basis’’ as
those of applicants for ‘‘private or shared communication facili-
ties.’’ 47 C.F.R. § 89.803(b) (as amended per 1975 Order, 51
F.C.C.2d at 999).

* Modification per 22 Jan. 1976 Order of the Court of Appeals.

LAAORIOVLEVE YS IEP LE) OE LPO EC LEP MIME TREE AEE SEN EEL

>Re eg

18a

all private operators including SMRS, are to be processed,
up to spectrum capacity, on a first-come, first-served ba-
sis.*7 Believing that competition between many operators
is the best way to hasten the development of improved
technologies, the Commission seeks to treat SMRS, like all
other private operators, as non-common carriers, and to
pre-empt state regulation of entry.

The non-common carrier classification is the pivot upon
which the Commission’s scheme for regulating SMRS
turns. It makes clearly inapplicable the stringent rate and
service regulations of the Title II Common Carrier pro-
visions.” Also, it renders inapplicable certain provi-
sions of [666] Title III (Radio Licensing), which require
a 30-day waiting period prior to the granting of any
application * and which guarantee the right to petition
for denial of the application.” Finally the classification as
non-common carriers appears to have certain effects on the
power of federal pre-emption, which power the Commis-
sion has sought to exercise here by barring state entry
regulation.

A. Classification of SMRS as Non-Common Carriers
1. Statutory Definition of Common Carrier

For purposes of the Communications Act, a common
carrier is ‘‘any person engaged as a common earrier for

*7 51 F.C.C.2d at 957.

4847 U.S.C. §§ 201-05 (1970). We do not here hold that the Com-
mission is required to exercise its affirmative Title II powers wher-
ever a common carrier within its jurisdiction is found to exist. We
only hold that the language of that Title becomes applicable, and
leave to a case presenting that issue the problem of whether Title
II powers are mandatory or discretionary.

947 U.S.C. § 309(b) (1970).

5947 U.S.C. § 309(d) (1970). Section (d) applies to the categories
set forth in section (b).

waits ioe sone ee 2 eee

19a

hire... .’’*' The Commission’s regulations offer a slightly
more enlightening definition: ‘‘any person engaged in rend-
ering communication service for hire to the public.’’ *
However, the concept of ‘‘the public’’ is sufficiently in-
definite as to invite recourse to the common law of car-
riers to construe the Act.

In secking an applicable common law definition of com-
mon ecarrier, a good deal of confusion results from the long
and complicated history of that concept. Originally, the
doctrine was used to impose a greater standard of care
upon carriers who held themselves out as offering to serve
the public in general. The rationale was that by holding
themselves out to the public at large, otherwise private
carriers took on a quasi-public character. This character,
coupled with the lack of control exercised by shippers or
travellers over the safety of their carriage, was seen to
justify imposing upon the carrier the status of an in-
surer.**

The late nineteenth century saw the advent of common
carriers being subjected to price and service regulations
as well, At first challenged as deprivations of property
without due process, these early regulations were upheld
on the basis of the near monopoly power exercised by the
railroads, coupled with the fact that they ‘‘exercise a sort
of public office’ in the duties which they perform. Sub-

47 U.S.C. § 153(h) (1970).
*? 47 C.F.R. § 21.1 (1974).

*§ This insurance obligation has never been unexceptioned, and
has not extended to acts of God, damages resulting from warfare,
or causes beyond the control of the carrier which are expressly
excepted in the bill of lading. Propeller Niagara v. Cordes, 62 U.S.
(21 How) 7, 23, 16 L.Ed. 41 (1858).

** Munn v. Illinois, 94 U.S. (4 Otto) 113, 130, 24 L.Ed. 77 (1876).
For an historical discussion of the idea that businesses affeeted with
a public interest are subject, on that account, to governmental

20a

sequently, legislation has been upheld imposing stringent
regulations of various types on entities found to be af-
fected with a public character, even where nothing ap-
proaching monopoly power exists. In such cases as the Mo-
tor Carrier Act of 1935,” relatively competitive carrying
industries have been subjected to entry, rate and equip-
ment regulations on the basis of the quasi-public character
of the activities involved.”

Whether the common carrier concept is invoked to sup-
port strict tort liability or as a justifying basis for regu-
lation, it appears that the critical point is the qua- [667]
si-public character of the activity involved. To create
this quasi-public character, it is not enough that a
carrier offer his services for a profit, since this would
bring within the definition private contract carriers which
the courts have emphatically excluded from it.” What ap-
pears to be essential to the quasi-public character implicit
in the common carrier concept is that the carrier ‘‘under-
takes to carry for all people indifferently ....’’™

|

om?

regulation, see McAllister, Lord Hale and Business Affected with
a Public Interest, 43 Uarv.L. Rev. 759 (1930).

* 49 U.S.C. §§ 301-27 (1970).

“ See American Trucking Ass’ns, Inc. v. United States, 101 F.
Supp. 710 (N.D.Ala. 1951) (upholding the Act against Constitu-
tional challenge ).

* Home Ins. Co. v. Riddell, 252 F 2d 1 (Sth Cir. 1958) ; Ciaccio
v. New Orleans Public Belt. R. R., 285 F Supp. 373 (E.D.La. 1968).

™ Semon v. Royal Indemnity Co., 279 F.2d 737, 739 (5th Cir.
1960); Home Ins. Co. v. Riddell, 252 F.2d 1, 3 (Sth Cir. 1958) ;
Ciaccio v. New Orleans Public Belt R.R., 285 F Supp. 373, 375
(E.D.La. 1968) ; State v. Sinclair Pipe Line Co., 180 Kan. 425, 304
P.2d 930, 941 (1957); Utilities Comm. v. Gulf Atlantic Towing
Corp., 251 N.C. 105, 110 S.E.2d 886, 889 (1959).

The following cases state the test in similar wording, while not
finding that a given carrier was a non-common carrier: Washing-

-

—________—_4

2la

This does not mean a given carrier’s services must prac-
tically be available to the entire public. One may be a
common carrier though the nature of the service rendered
is sufficiently specialized as to be of possible use to only
a fraction of the total population. And business may be
turned away either because it is not of the type normally
accepted or because the carrier’s capacity has been ex-
hausted. But a carrier will not be a common carrier where
its practice is to make individualized decisions, in particu-
lar cases, whether and on what terms to deal.” It is not
necessary that a carrier be required to serve all indiscrim-
inately; it is enough that its practice is, in fact, to do so.”

ton ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211,
48 S.Ct. 41, 72 L.Ed. 241 (1927); Terminal Taricab Co. v. Kutz,
241 U.S. 252, 255, 36 S.Ct. 583, 60 L.Ed. 984 (1916); Grace Line,
Inc. v. FP. M. B., 280 F.2d 790, 792 (2d Cir. 1960); Arrow Aria-
tion, Inc. v. Moore, 266 F.2d 488, 490 (8th Cir. 1959); Circle
Erpress Co. v. Commerce Comm., 249 Towa 651, 86 N.W.2d 888,
893 (1957); State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102
S.W.2d 99, 102 (1937); Ferguson Trucking Co. v. Rogers Truck
Line, 164 Neb. 85, 81 N.W.2d 915, 922 (1957).

The F. C. C. has expressed a similar view of the common carrier
concept as applied to communications. ‘‘[T]he fundamental con-
cept of a communications common carrier is that such a carrier
makes a public offering to provide, for hire, facilities by wire or
radio whereby all members of the public who choose to employ
such facilities may communicate or transmit intelligence of their
own design and choosing . . . .’’ Report and Order, /ndustrial Radio-
location Service, Docket No. 16106, 5 F.C.C_2d 197, 202 (5 October
1966).

* Semon v. Royal Indemnity Co., 279 F.2d 737, 739-40 (5th Cir.
1960).

* Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275
U.S. 207, 211-12, 48 S.Ct. 41, 42, 72 L.Ed, 241 (1927), (‘‘a com-
mon carrier is such by virtue of his occupation, not by virtue of
the responsibilities under which he rests.’’); See Lone Star Steel
Co. v. McGee, 380 F.2d 640, 647-48 (5th Cir. 1967).

ee

This requirement, that to be a common carrier one must
hold oneself out indiscriminately to the clientele one is
suited to serve, is supported by common sense as well as
case law. The original rationale for imposing a stricter
duty of care on common carriers was that they had im-
plicitly accepted a sort of publie trust by availing them-
selves of the business of the public at large. The common
carrier concept appears to have developed as a sort of
quid pro quo whereby a carrier was made to bear a special
burden of care, in exchange for the privilege of soliciting
the public’s business.

Moreover, the characteristic of holding oneself out to
serve indiscriminately appears to be an essential ele-
ment, if one is [668] to draw a coherent line between
common and private carriers. The eases make clear
both that common carriers need not serve the whole pub-
lie,“ and that private carriers may serve a significant cli-
entele, apart from the carrier himself.” Since given pri-
vate and common carriers may therefore be indistinguish-
able in terms of the clientele actually served, it is difficult
to envision a sensible line between them which does not
turn on the manner and terms by which they approach
and deal with their customers. The common law require-
ment of holding oneself out to serve the public indiscrim-
inately draws such a logical and sensible line between the
two types of carriers.

Finally, the holding out prerequisite to common carrier
status is not without implicit support in the F. C. C. Regu-
lations themselves. In defining ‘‘ public correspondence,”’
the Regulations focus upon the element of being at the
disposal of the public.“ Unlike ‘public correspondence, ”’

** Terminal Taricab Co. v. Kutz, 241 US, 252, 255. 36 S.Ct. 583,
60 L.Ed. 984 (1927).
* Home Ins. Co. v. Riddell, 252 F 2d 1, 4 (5th Cir. 1958).

“**Public correspondence. Any telecommunieation which the of.
fices and stations, by reason of their being at the disposal of the
public, must accept for transmission.’’ 47 C.F.R. § 21.1 (1974).

RLEED THROUGH

‘‘private line service’’ is distinguished by its being set
aside for the use of particular customers, so as not to be
generally available to the public.“ This public-private di-
chotomy is generally regarded as synonymous with the
distinction between common carrier and non-common car-
rier operators.

2. Application of Common Carrier Definition to
SMRS

In order to overturn the Commission’s classification of
SMRS as non-common carriers, the Court must find a
substantial likelihood that SMRS will hold themselves out
to serve indifferently those who seek to avail themselves
of their particular services. It is not an obstacle to com-
mon carrier status that SMRS offer a service that may
be of practical use to only a fraction of the population,
nor that the Order limits possible subscribers to SMRS
services to eligibles under Sections 89, 91 and 93 of the
Regulations.“ The key factor is that the operator offer
indiscriminate service to whatever public its service may
legally and practically be of use. In making this determin-
ation, we must inquire, first, whether there will be any
legal compulsion thus to serve indifferently, and if not,
second, whether there are reasons implicit in the nature
of SMRS operations to expect an indifferent holding out
to the eligible user public.

As to possible regulatory compulsion, there is no indi-
eation in the proposed regulations that SMRS are to be
in any way compelled to serve any particular applicant,
or that their discretion in determining whom, and on what

“**Private line service. A service whereby facilities for com-
munication between two or more designated points are set aside
for the exclusive use or availability for use of a particular customer
and authorized users during stated periods of time.”’ 47 C.F.R.
§ 21.1 (1974).

* 47 C_F_R. § 89.604(¢) (as amended per 1975 Order, 51 F.C.C.2d
at 993).

ede tee et

24a

terms, to serve, is to be in any way limited. The applica-
tion provisions require that SMRS applicants certify that
they will not provide service to ineligibles, but say nothing
about any obligation to provide services to eligibles who
[669] seek them. Nor does the section setting forth
limitations on mode of operation contain any such pro-
vision.”

Nor is there evidence in the administrative scheme of an
implicit intent so to require. The Order evidences a clear
intent not to discriminate between any of the types of
‘‘private’’ operators, including SMRS, in the granting of
license applications.* It would appear that the FCC might
have made special provision assuring adequate allocation
to SMRS particularly, if SMRS were regarded as perform-
ing some public access function not performed by the other
types of ‘‘private’’ systems.

Finally, the fact that the same Order provides for per-
formance of dispatch services by cellular common carriers “”
suggests that any Commission concern about free public
access to dispatch services may have been dealt with by
authorizing dispatch services by common carrier who, due
to their general status as common carriers, arguably can-
not discriminate against particular users.

Since one may be a common carrier by holding oneself
out as such, we must inquire further whether there is good
reason to believe that SMRS will in fact serve the user
public more or less indifferently, even absent any regula-

*°47 C.F.R. § 89.702(a)(2) (as amended per 1975 Order, 51
F.C.C.2d at 996-97).

* 47 C.F.R. § 89.655 (as amended per 1975 Order, 51 F.C.C.2d
at 995-96).

** 47 C.F.R. § 89.803(b) (as amended per 1975 Order, 51 F.C.C.2d
at 999).

®° 51 F.C.C.2d at 952.

,

RLEED THPOUGH

25a

tory compulsion to do so. At the outset it appears that this
inquiry must be highly speculative, both because no operat-
ing SMRS are now in existence, and because the parties
have not addressed in any detail the issue of the prospec-
tive SMRS business operations.

The nature of the dispatch services which SMRS will
primarily offer appear necessarily to involve the establish-
ment of medium-to-long-term contractual relations, where-
by the SMRS supply the needs of users for dispatch facil-
ities for a period of time.” In such a situation, it is not un-
reasonable to expect that the clientele might remain rela-
tively stable, with terminations and new clients the excep-
tion rather than the rule. It might even be that the turn-
over will be sufficiently minor that, except for the com-
mercial mode of operation, SMRS will be much like non-
profit community repeaters.” ‘‘Repeaters’’ are required on
application to submit the names and addresses of all cost-
sharing participants,” which would seem to indicate a high
level of stability among those employing the service.

If the SMRS business is as hypothesized above, and
nothing in the briefs or argument indicates otherwise, there
would appear to be little reason to expect any sort of hold-
ing out to the public at all. Moreover, even as openings
arise, there may be many reasons that the operator would
desire and expect to negotiate with and select future clients
on a highly individualized basis. The operator may be
concerned about the personal and operational compatibility
of a given applicant vis-a-vis the SMR system as a whole
and the other clients already using it. Methods of opera-
tion and time demands may be highly individualized and

7° See 47 C.F.R. § 89.702(a) (2) (iii) (as amended per 1975 Order,
51 F.C.C.at 2d 997) (making clear that SMRS business will be
done under written contract).

™ See note 45 supra.
247 C.F.R. § 89.702(a) (2) (iii) (1974).

=
| The Commission has long treated private and land mobile com-
munication systems under a specialized regulatory scheme. Basically,
we have expanded that plan, here, to cover a wider range of alter-
natives for establishing or obtaining communication services. In
accomplishing this objective, we have abandoned, to a large degree,
the service categories employed in the past, and we have also com-
bined private, shared, and common user systems under a single
assignment and regulatory plan which we believe to be more efficient
than that used in the past.

RLEED THF OUGH

53a

we would license a person to provide service, on a commer-
cial basis, to a single customer, say a large, metropolitan
police department. That is one possibility. Another would be
to license a common user system to provide service to a
nuniber of small police forces, which may be operating in
adjacent jurisdictions, under some arrangement which
would afford all the means of communication they require
at low cost and in an efficient manner, And, of course, many
other variations of such arrangements will be possible, Our
plan provides for this.

32. In addition, eligibles will have the choice of trunked
or conventional systems. Further, within each of those
modes of operation, they will have a variety of ways in
which to use radio, and this will permit them to tailor, to
a fine degree, the communication systems they elect to
establish. Added to this, overlaying all of these alterna-
tives, they will have an option to switch from one type of
system to another, and then back again, should any prove
to be unsatisfactory or not to work out as expected.

33. A plan of this kind is feasible, for we now have
sufficient spectrum space to offer a large number of options
to the land mobile community. Thus, in any one area, and
in adjacent areas, too, we have the potential for 600 single-
channel conventional systems; or 30, 20-channel, or 60, 10-
channel, or 120, 5-channel trunked systems. There are
other combinations, too. Therefore, overall, with the spec-
trum we are making available for immediate use and with
what we are holding in reserve, we are assured, perhaps
more so than ever before, that we will be able to accommo-
date the needs and requirements of land mobile opera-
tions, in a most effective and efficient manner (with little
or no congestion), for many years to come.

34. We are fully aware (the parties have not failed to
remind us of this) that some of the entities we propose to

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54a

license, i.e., entrepreneur-operated, common-user systems,
could be licensed as common earriers and regulated under
Title II of the Communications Act. However, our basic
goal in this proceeding is, as it has been since its inception,
to make available to the land mobile service additional
spectrum and to do this in a way that would promote the
larger and more effective use of this spectrum in the public
interest, all in conformity with our duties, obligations, and
responsibilities under Title III of the Act. Moreover, the
type of radio operations planned, here, for the land mobile
services at 900 MHz, were not envisioned by the original
drafters of the Communications Act. In this instance, the
radio services we are establishing fall somewhere between
what Congress had in mind in framing the provisions of
Title II and what it intended to cover under Title IIT of
the Act. In these circumstances, then, we feel we have
the discretion necessary to select the regulatory tools we
believe will most effectively promote the public interest.

35. In accomplishing this goal, we are free, we believe,
to adopt whatever comprehensive regulatory scheme is best
suited for the purpose. In this instance, on the basis of
the extensive record in this rule making, and also in light
of our experience, particularly that over the past two dec-
ades, we find that our plan for the use of the 900 MHz
spectrum would not be best implemented by restricting
the number of licensees. We are of the view, rather, that
reliance should be placed on the competitive forces present
in the communications market to give land mobile users
the options and choices we feel should be theirs. In this
connection, then, we have concluded that we do have the
necessary statutory authority to choose one regulatory
process which is preferable, on demonstrable grounds, over
another which is not at all suited to the objectives of the
action we propose to take. This, we think, is the central
holding in United States v. Southwestern Cable Co., et al.,
392 U.S. 157 (1968); and Philadelphia Television Broad-

RLEED THRPOUGH

Be)

55a

casting Co. v. Federal Communications Commission, 123
U.S. App. D. C. 298, 359 F.2d 282 (1966).

36. In this connection, we have, of course, addressed
ourselves to the argument advanced by a number of the
parties that the Communications Act, together with cer-
tain precedents cited in support of the proposition, compel
the conclusion that we do not have discretion in this mat-
ter to select one regulatory scheme over another; that we
must treat any entity offering commercial service to eligi-
bles or licensees in the private services or to the public as
a common carrier and regulate that entity as a common
carrier. But we do not think we are restricted or limited in
this way in carrying out our duties and responsibilities
under the Act of assuring the most effective and efficient
use of the radio spectrum under whatever controlling cir-
cumstances exist. We believe, rather, that the Communiea-
tions Act, read as a whole, directs us to regulate the use of
the radio frequencies that are available in the way that
affords maximum benefits to the public, and that is what
we have done, here.*

‘It is pointed out that such a licensing practice would be at
variance with that presently used in authorizing service jn the
Domestic Publie Radio Services, under Part 21 of our rules. This
is so. But where we find it necessary, in achieving a desirable goal,
to abandon a trail once followed, and to turn to a new one, we
must have the right to do so. There must be progress, and we must
be able to learn through experience what is good and what is not,
and to act upon that experience. For this reason and others set
out, above, in our opinion, we deny the ‘‘Motion for Severance of
the Issue of Multiple-User Licensees from the Frequency Alloca-
tion Aspects of this Proceeding and for Resolution of that Issue
in an Evidentiary Hearing,”’ filed herein on October 19, 1973. by
the National Association of Radiotelephone Systems (NAKS). The
issue NARS points to has been debated at length. Parties, includ-
ing NARS, have addressed themselves to it in their comments and
pleadings and in oral argument. too, and we see no need for fur-
ther proceedings to decide this lezal question. Accordingly, as
Stated, the referenced motion is denied.

56a

37. In this connection, we would point out that we have
allocated 30 MHz of spectrum space, or an equivalent of
600 25 kHz voice-grade channels, for the future develop-
ment of mostly dispateh-type land mobile radio communi-
cations systems. Further, this is a new range of spectrum
for land mobile use, much higher than that used in these
services in the past. Thus, as we have mentioned, new sys-
tem design; new equipment; and new marketing practices
are to be worked out as the frequencies are placed in use.
In these circumstances, we cannot predict with any degree
of certainty what types of communication systems will
emerge or what methods of marketing will make them most
available to the land mobile communication users. How-
ever, our experience over the past 25 years teaches us
that detailed subdivision of the spectrum, with attendant
restrictions, does not always promote the fullest and most
efficient utilization of radio frequencies. Accordingly, we
have grouped varying classes of users and varying meth-
ods of use together and we have allocated for their use the
entire band of 30 MHz. We did this specifically and inten-
tionally, for we wanted the competitive forces in the mar-
ket place and the relative needs of each user or group of
users to decide what assignments are made first and to
whom such assignments are made. In this way the three
basic types of eligibles are placed on equal footing, i.e.,
private, shared, and common user systems have commen-
surate or corresponding opportunities to apply for and
to establish systems of radio communication required to
carry out authorized functions and activities. No person is
excluded and no person can exclude, by recourse to chal-
lenges on economic or other grounds inconsistent with this
plan, so there will be open entry to the market and compe-
tition among users, but all this on a fair basis as we have
just described.

38. With this spectrum, with the combinations men-
tioned, we believe that the competitive forces of the mar-

er oon TUCOLICH

BYE

ket place can be relied upon to provide the foundation upon
which we may properly rest our regulatory approach. To
illustrate, as to the cost and quality of service, or as te the
form it takes, there is no need for regulatory measures
like those imposed on common earrier operations, for each
user will be free to negotiate with multiple suppliers and
communication companies for the facilities he needs. Also,
in certain circumstances, he inay apply for and construct
his own system, should he find that mode of operation to
his advantage. Or he may join with others to bring to-
gether the necessary elements of a radio system under our
‘‘cooperative use’’ practices; or form a nonprofit associa-
tion or corporation for the purpose; or rely on a trade
organization, which may offer communication services to
its members on a nonprofit, cost-shared basis. All of these
avenues are open to the user; and with them we feel he is
protected from those abuses that might arise, were the
circumstances other than what they are.

39. Additionally, we think it very important that we
exercise our authority and adopt a regulatory plan which
is greatly simplified. We want the burden on the applicant
to be significantly less. We would like to cut down on the
costs to the public, particularly in the case of those seeking
to bring service to it through common user systems. Also,
we find it imperative to adopt procedures which will en-
able us to authorize eligible persons to establish the radio
stations applied for at a much earlier date than is possible
under current processes that now apply to radio common
carriers.® We believe this can be best accomplished by

* We would note that, over the years, where procedures have been
followed that provided for consideration of economie impact on
common carriers, we have witnessed what seems to us are intermin-
able delays in the authorization of service, in some cases extending
up to 4 or 5 years and at times longer. Many of these delays, in our
view, had or have little or nothing to do with the ultimate merits
of any given proposal; rather, they are primarily the result of
efforts on the part of existing carriers to keep out competition.

58a

adopting our plan—a plan we have modeled and fashioned
on our practices and procedures in the private services,
where a higher level of administrative efficiency does ob-
tain.

40. Gn that point, we think it clear that no one user will
necessarily have to look to a single business entity for
service. This is as it should be, at least in the context of
the fundamental objectives we have set for ourselves in
the formulation of our 900 MHz assignment plan. Those
objectives, we will mention again, are to provide a maxi-
mum number of ways under which a maximum number of
qualified persons may, at the earliest date possible, with
the least administrative delay and under minimum pro-
cedural restraints, provide themselves with the means of
radio conmunication ‘hey may require to enable them to
conduct their affairs in an efficient and effective manner.

41. Furthermore, there are great advantages to the
public in having at 900 MHz a multiplicity of sources for
the kinds of equipment and related facilities needed to
meet the requirements of land mobile users. Companies of
this kind—providing such services and facilities—can and
do function independently, competing with one another for
business, all without any adverse impact on the public.
This being so, our plan is premised in part on the nature
of the requirements of land mobile users; and we think
it clear that ‘‘limited competition’’ or ‘‘natural monopoly’’
approaches, where detailed and complex regulatory pro-
cedures are imposed, would be antithetical to the best
interests of these users and to the public, too.

These efforts have been effective in delaying, if not limiting com-
petition; and, in some cases, they have frustrated the actions of
persons interested in establishing what might very well have been
a valuable service to the public, all with few, if any, corresponding
benefits in terms of the overall public interest, convenience, and
necessity.

MEPL ROIS PSL AINH ASABE BLA TILE LENE DELETE OR SSS LELADE LL DE OES II IE ~ ni

59a

42. Further, we are convinced that we, for our part,
must not carry forward to the 900 MHz band the burdens
and delays inherent in present procedures, used in regu-
lating common carriers, except, of course, with regard to
cellular service to be provided by wire line telephone com-
panies. It is our view that it is very much in the public
interest to shed this heavy cloak and exchange it for one
with far greater flexibility and far greater promise for
maximizing the potential of utilization of the radio spec-
trum at 900 MHz.°

43. Finally, we emphasize that our new assignment plan
and the scheme of regulation we have devised to imple-
ment it are designed to be carried out on a national basis.
All of the 600 radio channels are made available nation-
wide. The frequency assignment methodology and technical
standards and our operational rules are to apply nation-
wide, where each frequency assignment will control where
the next may be made—this without regard to state boun-
daries or varying local jurisdictions. In these cireum-
stances, the methods which potential users may employ to
make use of radio frequency must also be compatible on
a nation-wide basis. If they are not, we will not be able to
achieve the goals we have sct for ourselves—goals which
we feel certain will bring to the publie what we foresee to
be means for efficient, effective, and low cost communica-
tions.

44. We recognize that some state and local authorities,
in exercising jurisdiction over intrastate common carrier

°In this regard, our 900 MHz plan will require a minimum of
time for adjustments to service parameters, because we have, in our
technical and loading standards, built-in allowances to permit ex-
pansion of service as it is required, all without major study or
evaluation on our part. That is one of the features of the new plan,
i.¢., it has been conecived in a way whieh will permit us to elimi-
nate the costly, time consuming, case-by-case treatment of every
change or variation in the method of operation or in the charges or
types of service provided by the licensee.

60a

communications, may attempt to impose regulations and
controls over some or all types of common user systems
which would be inconsistent with our allocation scheme for
900 MHz. In this regard we are particularly concerned
“bout regulation which may take the form of limiting or
excluding potential users or classes of users from utilizing
this band.” Such action would be in direct conflict with our
attempt in this proceeding to establish a nation-wide sys-
tem of radio communications consistent with our obliga-
tion under Title III of the Communications Act. Both See-
tions 2(b) and 221(b) of the Act, which reserve to the
states jurisdiction to regulate intrastate common carrier
communications, begin with language that makes it clear
that state action must yield to the sole jurisdiction and
power of the Commission to provide for allocation of the
radio spectrum and to issue radio licenses. We think both
these sections make it clear that Congress did not intend
that such regulatory powers the state may be given with
respect to intrastate communications be used to inhibit
or thwart the Commission in exercise of its obligations in
establishing a uniform national plan for use of radio fre-
quencies. We stated in Telerent Leasing Corp., 45 FCC 2d
204, 220, 223: *‘State action n 9. vield to the sole juris-
diction and powers of the Commission to license radio fa-
cilities in the publie interest’’ and that ‘*no state regula-
tion can oust this Commission from its clear jurisdiction.’ 8

*In addition to generally frustrating the objectives of this pro-
ceeding, any state restriction limiting the number of users would
have a negative impact on frequency allocation. Rather than at-
tempting to determine by administrative process the best use of the
radio spectrum, our new plan at 900 MHz harnesses the competitive
forces of the market place as a regulatory tool to insure efficient and
effective frequency use. If those that are first licensed do not effec-
tively utilize frequencies or provide fer public need, opportunity
will encourage others to seek radio facilities which, under free eom-
petition (and the rules we have designed), will supplant the less
effective radio users.

* Under appeal, U.S. Court of Appeals for the Fourth Cireuit.

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Moreover, the Supreme Court has held that federal exclu-
sion of state law is inescapable where compliance with
both federal and state regulation is impossible. Florida
Lime & Avocado Growers, Ince. v. Paul, 373 US. 132, 142-
1483 (1963). Accordingly, we assert Federal primacy in this
area and declare that any state regulatory action that may
be taken with regard to users or potential users of the
900 MHz band that is inconsistent with the rules and policy
promulgated in this proceeding is unlawful. While we are
reluctant to take such preemptive action, we believe it im-
perative to the success of this program,

Licensing 900-MHz Stations
Eligibility

45. Under our assignment plan, there will be three basic
license classifications, Facilities will be authorized either
as private, or shared, or common user stations. Under the
first heading, private systems, we will license any person
or entity eligible in any of the radio services included
under Parts 89, 91, and 93 of the rules.

46. In the second license classification, we include, as
eligibles, any person or entity offering to provide com-
munication services and facilities, on a not-for-profit, cost-
shared basis, to persons eligible under cither Part 89, 91,
or 93 of the rules. Thus, the licensee may be an individual
licensee; a non-profit corporation or association, formed
for the purpose of providing radio facilities to qualified
participants; or it may be an entity such as a medical
society or industry organization which has as its primary
purpose some function other than the provision of com-
munication services for their members.

47. Under the third and last license category, we have
grouped commercial common user systems. These include
any commercial concern offering to provide service to
persons eligible under either Part 89, 91, or 93 of the

62a

rules, on the one hand, and on the other, to the public, in
general, without regard to the eligibility factor. As we
will point out, later, arrangements of the first type will
be regulated differently from those of the other type;
but in neither case will the licensee be subject to regula-
tion as a common carrier.

48. Reviewing, then, there are to be three license cate-
gories, that is, one for private systems; another for shared
systems; and the third for commercial common user fa-
cilities. Private systems, we envisage, will not be unlike
those authorized under our present rules. Shared systems
are to be operated on a not-for-profit, cost-shared basis,
and they are to be available only to persons eligible in
the private services. But the third license category is a
new one, for under it commercial concerns will be able to
provide communication services for profit, «ither to eli-
gibles, under Parts 89, 91, and 93, or, alternatively, to
the public, in general.®

Policy on Interconnection

49. Our new rules also place restrictions on intercon-
nection. In this regard, our policy will be to permit full
interconnection only in those cases in which the licensee
provides radiotelephone services, on a commercial basis,
to the public. Thus, where the licensee serves himself (a
private system), or where he provides service to eligibles
on a not-for-profit, cost-shared basis (a shared system),
or where service is offered to a restricted class of eligible
users, but on a commercial basis (one of the two forms of
common user systems), interconnection with the wire line
facilities of the telephone company serving the area will

* While, as we have indicated, we will not treat these commercial
ventures as common carriers, this does not mean that they will not
be regulated. They will be, but in a way which will promote, in our
view, the fuller and more effective use of the new spectrum in the
public interest.

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63 a

be limited to those situations in which it is accomplished
manually, by a person in the employ of the licensee or
user, at the licensee’s or user’s principal place of business.
Interconnection at a control point common to more than
one licensee or user will not be allowed.”

50. Our policy on interconnection is being adopted be-
cause our continuing experience with it, in the private
services, has convinced us that the mode of operation is
basically incompatible with dispatch-type requirements.
Thus, where interconnection is used, message time in-
variably increases, and, further, it brings into play a
number of factors which decreases system efficiency. These
factors include dial-up time requirements; use of ‘‘hold’’
features of telephone facilities; and a tendency not to
monitor the channel before transmission, even in those
cases in which the equipment employed is designed to per-
mit it. Accordingly, while we know that interconnection
is desirable in certain situations and necessary in others,
we make limited provision for it, as previously explained.

Other Restrictions on Operation and
Use of 900-MHz Systems

51. We have said that we plan to license 900-MIIz sta-
tions under three basie categories, namely, as private
systems, where licensees use their stations in carrying out
authorized activities and functions; next, as shared sys-
tems, where service and facilities are provided to eligible
persons on a not-for-profit, cost-shared basis; or, finally,
as common user systems, where commercial firms offer
facilities and services either to eligibles in the private
services or to the public.

*° This practice is now being followed in connection with shared
community repeaters authorized in the Business Radio Service in
the 450-470 MHz band. It has worked well, and we have received
no complaints from licensees that the restriction interferes in any
meaningful way with their traditional dispateh- -type operations.

64a

52. Now, in every instance in which service is to be
provided solely to eligibles in the private services (in
three of the four use categories just mentioned), there
are to be three additional! license restrictions. First, radio
facilities so authorized may only be used for purposes
expressly allowed in radio services included under Parts
89, 91, and 93 of the rules. Second, each licensee or user
must be shown to be eligible for facilities, either under
this subpart or in the radio services, listed, above. Third,
all messages and transmissions must be limited to those
permitted in the services in which the participants are
eligible.

53. These license restrictions are in contrast to those
governing stations employed to provide radiotelephone
services to the public. In the latter system, interconnection
is to be allowed. There are to be no restrictions on the
class of persons served, and messages of all types may
be transmitted. In brief, common user systems of this type
are to have the maximum degree of flexibility in the way,
and by whom, they are employed; whereas, private, shared
and common user facilities, used to serve specific classes
of eligibles, are to be restricted and designed in a way
that will permit qualified persons to conduct certain activi-
ties and functions in an efficient manner.”

™ This point may be illustrated by the use made of radio systems
by publie utilities, eligibles in the Power and Petroleum Radio
Services. There, radio is used as a ‘‘tool’’, so that these enterprises
may provide utility service on a more effective and efficient basis.
And in the Fire and Polivxe Radio Services, where, again, radio is
used as a ‘‘tool,’’ not in the conduet of the personal affairs of
policemen and firemen, but to allow officials to carry out their
governmental functions in a more effective and efficient manner.
That is the essence of the private services, and we preserve it in the
900-MHz licensing processes through the limitations and restriec-
tions placed on systems operated for, or by, groups eligible in these
services.

— ee ee Sa

65a

Filing and Processing of Applications for 900 MHz
Facilities
04. Applications for stations are to be submitted to the
Commission at its offices in Washington, D.C.? All appli-
eants are to use FCC Form 400, along with the additional

information which must be submitted in connection with
900-MHz facilities.”

9). Our plan is to process these applications essentially
in the order in which they are received. Once received, the
proposal will be reviewed to determine whether it is ac-
ceptable for filing, i.e., not deficient in any material respect.
If it is acceptable, it will be assigned a ‘‘priority’’, based
primarily on the date and time it was filed. It will then be
placed on our ‘“processing line’’ for consideration “in
turn’. Where possible, the application will be granted.
Should this not be possible, the proposal will be dismissed
or denied, depending on the circumstances, and returned
to the applicant, and, in this event, he will lose his assigned
**priority’’.

36. These procedures wil] be followed until all of the
channels available in the area are assigned. At that time,
all applications on file, proposing operation in the area in

** Applicants proposing operation within the Chicago Spectrum
Management Region as defined in the First R&O Docket No. 19150,
adopted Oct. 28, 1971, 36 FR 2167 shall file their application on
Form 425 with the Chicago Regional Office. A subsequent order
will be issued delezating authority to the Chicago Regional Office
for the processing of such applications. Rules adopted herein will
apply in the Chicago Region pending possible future rule making
dealing specifically with 900 MHz land mobile operation in that
Region.

lished.

;
— ‘ BELTON ZEEE AATF RE ED AL Re EI aes |

66a

question, will be placed in ‘‘pending status’’, if the appli-
cant has made this election. Following this, each applica-
tion in ‘‘pending status’’ will be considered ‘‘in turn’’ at
such time as additional frequencies become available.”
Where the applicant has not made this election (that his
proposal be retained in ‘‘pending status’’), it will be re-
turned to him. He may, then, either file it at a later date
or submit it, in modified form, for consideration for grant
in some other area or region."

57. We should emphasize, here, that applications for
stations in the 900-MHz band will be processed and con-
sidered within the framework of specific standards, those
set out in our rules. If the proposal meets these specifica-
tions, it will be granted. If it does not, it will either be
dismissed, or denied, or kept in pending status, whichever
action the facts of the case demand. In general, then, there
are to be no hearings on comparative or economic issues,
as such; and petitions to deny, in general, will not be en-
tertained nor will other procedural or administrative
remedies be available, except where the law so prescribes.**

| 58. These practices have been worked out, with care, to
enable us to attain our primary objectives, i.e., to provide

™ We should add, ‘‘together with those submitted at a later date,
seeking facilities in the same area.’’ We do not intend to preclude
the filing of applications even where the frequencies allocated for
use in a given region have been exhausted.

** This may be an alternative course of action an applicant may
wish to follow, because we will not permit anyone to file multiple
applications for radio facilities where such proposals are situated
so that if one application is granted, some other one, filed by the
same applicant in an adjacent area, would have to be denied or
dismissed,

1° These procedures parallel those employed by us in licensing
radio facilities in the private services. There, we have found they
work well, enabling us to license facilities with the minimum delay,
for the benefit not only of the licensee but, ultimately, for the
public, as well.

EERIE EE

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67a

the maximum number of channels for communication to
the maximum number of qualified users at the earliest pos-
sible date, all with a minimum of regulatory ‘‘red tape’’,
but with options as to how, and from whom, service may
be obtained.

59. Achievement of these goals is possible, we think,
for we have sufficient spectrum space, with additional
channels in reserve, to permit the establishment of mul-
tiple facilities in any one area or region and to duplicate
them in adjacent cities and communities. With this, and
with the licensing alternatives provided for, there will be
no need for comparative consideration of proposals. Be-
sides, such hearings would preclude implementation of our
scheme of regulation, since it rests, in an essential way,
on there being free and open competition in each area
between persons offering equipment and services."

Selection and Assignment of Frequencies in the 900-MHz
Band.

Preliminary Considerations

60. As pointed out, we have allocated 30 MHz for use
in providing service to persons qualified to operate at 900-
MHz. This has been done in two bands, with 15 MHz allo-
cated in the 806-821 MHz band and 15 MHz in the 851-866
MHz band. :

61. In both trunked and conventional systems, mobile
station transmitting frequencies will be selected from
those available in the 806-821 MHz band and base station
transmitting frequencies, from those allocated in the 851-
866 MIIz band. There will be uniform 25-kHz channeling;

“Our experience under the licensing procedures presently em-
ployed in the private services, where hearines have not been neces-
sary, contrasted to the administrative delays occasioned by the
processes applicable to common carrier regulation, confirms our
Views in this recard. We see no reason why the same benefits should
not be translated to apply at 900 MHz.

6Sa

and the spacing between associated mobile and base sta-
tion frequencies, in each instance, will be 45 MHz.

62. This 30-MHz allocation makes possible a number
of options for system design. For example, we could au-
thorize 600, single-channel conventional stations. On the
other hand, we could have 30 trunked systems, with 20
channels each; or 60, with 10 channels; or 120 with 5
channels. There are other combinations, too; but the im-
portant feature of our plan is its flexibility. This flexibility
gives assurance that competitive forces in the market place
can operate freely and allow the establishment of the best
combination of services and facilities possible under the
present state-of-the-art.

63. But, initially, as a matter of policy, we have decided
not to authorize, in any one area or region, more than
100 25-kHz channel pairs for conventional use and 200
25-kHz channel pairs for trunked systems. The remaining
300 25 kHz frequency pairs will be temporarily reserved
to give us an opportunity to study system development
trends in the available spectrum. Further, we do not want
to allow one type of system to dominate the market, where
the other might better serve the needs and requirements
of eligible users. Accordingly, as an interim safeguard,
we will impose the restriction mentioned.

Frequency Assignments for Trunked Systems

64. Applicants for trunked systems will be assigned
frequencies in groups, from 5 to 20 channels, depending on
the nature of the service to be provided; the area to be
served; the class and number of users or customers to be
offered facilities; and a number of other factors.

65. Mobile station transmitting frequencies for trunked
operation will commence with Channel No. 1 at 820.9875
MHz, followed by Channel No. 2 at 820.9625 MHz, and
proceed to the band end with uniform 25-kHz channeling.

BLEED THPOUGH

69a

Base station transmitting frequencies will commence with
865.9875 MHz, Channel No. 1, followed by 865.9625 MHz,
Channel No. 2, and proceed to the band end with uniform
25-kHz channeling.”*

Frequency Assignments for Conventional Systems

66. Applicants for conventional systems will be assigned
channel pairs in accordance with applicable loading cri-
teria.” Where justified, on the basis of the showing made
by the applicant, one or more channel pairs will be made
available to him for use in his system of communications.
However, the absolute maximum number of channels that
will be made available for use in a conventional system
will be five, regardless of the number of mobile units the
applicant plans to serve.*°

67. Mobile station transmitting frequencies for con-
ventional systems will commence with Channel No. 1 at
806.0125 MHz, followed by Channel No, 2 at 806.0375 MHz,
and proceed to the band end with uniform 25-kHz chan-
neling. Base station transmitting frequencies will com-
mence with Channel No. 1 at 851.0125 MHz, followed by
Channel No. 2 at 851.0375 MHz, and proceed to the band
end with uniform 25-kHz channeling.” As in the ease of
trunked systems, discussed immediately, above, the spac-
ing between associated mobile and base station frequencies
will uniformly be 45 MHz.

**The band ends referred to will be determined by the policy
mentioned, above, at para. 63.

** See Section 89.802, et seq., of the new rules.

*° Where an eligible has requirements for additional frequencies,
he must meet those needs throuczh the use of a trunked system.
We emphasize a maximum of 5 channel pairs will be assigned to
any one licensee for use in a conventional system.

* As in the case of trunked systems, the interim criteria will
apply, here, too. See para, 63, supra.

ee er ee ee

3 as

Pee mn La Peles ie MARTON

70a

Authorization of Operational Fixed Stations in the
900-MHz Band

68. Much thought has been given to whether operational
fixed stations should be permitted in the 900-MHz band.
However, for the same reasons that have persuaded us in
the past, we will only allow control stations and then only
with specific limitations similar to those now applying to
such stations in the 450-470 MHz band.

69. These limitations require that the control station
operate on the assigned frequency of the associated mobile
station. Also its use is subject to the condition that harm-
ful interference not be caused to stations of licensees au-
thorized to use the frequency for mobile service communi-
cations. Further, and in order to minimize potential
interference, directional antennas will be required at con-
trol stations and their power output will have to be
adjusted so that the control station’s signal at the con-
trolled station will not exceed by more than 6 dB the signal
of an associated mobile transmitting from the same loca-
tion as the control station.

Protection Parameters for Operation in the 900-MHz Band
In General

70. We gave much thought to the development of appro-
priate protection parameters for stations operating at
900 MHz. In doing so, we kept in mind our basie objective
of authorizing multiple systems of communication capable
of providing a variety of services to a large number of
eligible persons and, also, to the public, in general. To
attain this objective, we knew we would have to have a
regulatory plan which would be relatively simple to imple-
ment and which would allow us to pass on each proposal
in an orderly but expeditious manner, without recourse to

RILEED THF OUGH

7la

highly complex and time consuming procedural and adju-
dicatory processes.”

71. With this in mind, we first looked into the question
of whether protection should be accorded both co-channel
and adjacent channel operations. We concluded that adja-
cent channel protection would not be necessary in making
frequency assignments. Our plan of placing all base sta-
tion transmitters in one band separated by 45 MHz from
the base station receiving band eliminates the potential
for adjacent channel interference between base stations.
We recognize the potential of random adjacent channel
interference when a mobile receiver is in close proximity
of a base station transmitting on an adjacent channel. We
believe, however, that the probability of intersystem in-
terference to be so small and random as not to be a serious
problem. Also, the possibility of intersystem adjacent chan-
nel interference within a trunked group of frequencies, in
our view, ean and should be minimized or eliminated by the
system operator. Our greatest concern (with regard to
adjacent channel interference possibilities) had been that
control stations, operating at fixed points, might cause
harmful interference of this type. But by limiting power
and by our other requirements, we feel that the adjacent
channel interference potential will be controlled. Accord-
ingly, we have concluded that adjacent channel interfer-
ence need not be taken into account in 900 MHz channel
assignments, and we have not done so.** And, by taking
this approach, we will be able to achieve great flexibility

In the future, when our computer procedures and capabilities
are advanced further, new licensing and assignment methodology
will be utilized. But, for the present, we must evaluate proposals
on the basis of the standards and criteria set out in our opinion
and our new 900 MIIz rules.

*° This is our present thinking, nevertheless we may make a fur-
ther evaluation of this factor in our Chicago Spectrum Manage-
ment Region.

72a

in the assignment and use of frequencies in both conven-
tional and trunked systems of communications.

72. We also concluded that transmitter intermodulation
interference would not be a factor in making frequency
assignments. The principal source of this interference
stems from high powered base stations operating in close
proximity, both physically and frequency wise. Trunked
systems will create this situation by their very nature. But
odd order transmitter intermodulation products of the
magnitude to cause a problem will fall outside this par-
ticular band and the overall allocation structure is such
as to minimize the problem.

73. In summary, we have concluded that adjacent chan-
nel interference and possible interference from intermodu-
lation can be disregarded, in this instance, in establishing
protection parameters for 900-MHz systems." It follows
that our assignment plan is based primarily on co-channel
operating characteristics, particularly in terms of propa-
gation of signals and on the design of available receiving
equipment. With this decided, we turn to a discussion of
the various considerations which went into determining
the specific co-channel separation requirements for trunked
and conventional systems of communication.

Co-Channel Station Separation

74. As just mentioned, in establishing mileage separa-
tions for co-channel stations, a number of factors were
taken into consideration, Among these were permissible
power and antenna height. Next, whether the same maxima
should be specified for trunked and conventional systems;
and, in addition, whether these maxima should be identi-
cal for urban, in contrast to suburban, operations. Also,

** As in the case of potential adjacent channel interference, the
possible impact of intermodulation interference may be studied
further in our Chicago Spectrum Management Region.

mt ecm TLIO MICH

73a

the quality of service and the related consideration, inter-
ference levels, are important parameters.

75. As to the specification of permissible power and
antenna height, propagation characteristics at 800 MHz
and probably station locations were looked into.”* On the
latter point, we have concluded that most trunked and
conventional stations will be established in areas of rela-
tively high population density. It would seem certain that
trunked systems would be located there, since they will be
expensive to construct and operate and only in the larger
markets will there be present an economic base sufficient
to support them. Further, it is most likely that the ma-
jority of conventional systems will also be located in
heavily populated areas, because it is in such locations
that greatest frequency shortages have been experienced.

76. Our study of the desirable level of signals in 900-
MHz systems, led us to conclude that we should set maxi-
mum power and antenna height at 1 kilowatt (ERP) and
1000 feet (AAT), or the equivalent, respectively.** This

25 On propagation at 900 MIIz, we studied both our own R-6602
eurves and the so-called Okumura curves, referred to and relied
on by a number of the parties filing comments. We found no
great differences in the signal levels predicted. The major distine-
tion between them involved the dissimilar receiving environment
in which the test data was gathered. As to this, we applied a
correction factor; and with it, there was very close correspondence
in the two sets of data. Overall, we believed the data to be highly
reliable, and we used it in predicting signal level contours and
corresponding service area mileages.

26 Our objective is to provide a high quality signal to about 50
pereent of the locations, 50 percent of the time, within the service
area of the stations. To accomplish this objective would require
a signal approximately 20 dB above receiver threshold, at the
edge of the service area. We have also assumed, based upon the
record of this proceeding, that receivers will be available with a
sensitivity of 0.45 microvolts across a 50 ohm antenna terminal
for 20 dB SINAD. On this basis, the average desired signal level
should be 40 dBu at the edge of the service area. Based on avail-

T4a

will be for all trunked operations and for those conven-
tional systems with transmitter sites located within 15
miles from the geographic center of the Urbanized Areas
listed at Table 1 of Section 89.751(g) of our new regula-
tions. For conventional systems with transmitter sites
more than 15 miles from the geographic center of the refer-
enced Urbanized Areas, we felt lower power and antenna
height could be used. In those regions there are generally
fewer tall buildings; line-of-sight conditions are not un-
common; and the absorption factor is down. Accordingly,
we felt it reasonable to set the limits at 500 watts (ERP)
and 500 feet (AAT), respectively.” Nonetheless, should

able propagation data, R-6602 curves modified to account for mobile
antenna receiving heights, urban, suburban, or rural environments,
terrain roughness, ete., this quality of service could be afforded
in the order of 20 miles in an urban environment with a 1000 feet
(AAT) antenna and 1 kilowatt power (ERP). To maintain this
quality of service with a margin to permit solid capture of the
FM receiver, the interfering signal from a distant co-channel
station should be 10 dB less than the desired signal at the boundary
of the service area of the protected station, This would mean that
the interfering signal could not exceed 30 dBu in 10 percent of
the locations, 50 percent of the time.

The value of 40 dBu was employed for a number of reasons, but
in simple terms we selected it because we determined that it would,
in the absences of interference, enable the licensee of a 900-MHz
facility to give a high level of service in the area in which he
planned to operate. At 900 MHz this is important, because systems
and equipment will be relatively expensive; and there must be
some compensating factor for the investment required to establish
service.

27 While it might be argued that greater range in suburban areas
is desirable, because the distances between points of communica-
tion would seem likely to be more than that found in urban areas,
we still believe the lower limits are warranted. In part, our reason
has to do with our plan for loading suburban-conventional systems,
where 25-mile radii will be employed, not 15-mile radii used in
connection with urban-conventional systems. In any event, under
suburban/rural conditions, we would expect a useable signal to be
received at essentially the same levels as for urban stations with
greater power and antenna height.

Tha

these power and antenna height parameters for suburban
stations prove to be unduly restrictive, we will take the
steps necessary to adjust these values. These are maxi-
mum values for power and antenna height; and the appli-
cant, of course, must justify his request based on his
coverage requirement.

77. Summarizing on this aspect of the rule making, we
have set 1 kilowatt (ERP) and 1000 feet (AAT) as the
maximum permissible power and antenna height for
trunked systems and for urban-conventional facilities. For
cuburban-conventional systems, we selected 500 watts
(ERP) and 500 feet (AAT) as the limits.” With these
powers and antenna heights we are certain all classes of
stations will offer satisfactory service to those using
them.® But there is one further matter to take into ac-
count, establishing limits on interference.

78. As to interference, we concluded that the undesired
signal should be 10 dB down from the desired one. This
will mean that at the 40 dBu contour, of the protected

28'The Commission, however, is concerned with the practice of
serving mobile users who require small areas of coverage on trunked
systems which are essentially wide area coverage systems, Such
situations are known to exist in the operation of wide-area re-
peaters in the lower land mobile bands. While not prohibited, this
practice should be discouraged in the 900 MHz band, as it could
lead to serious deficiencies in overall spectrum utilization. Accord-
ingly, the Commission will be watchful of the effects of such prae-
tice on the efficient development of the 900 MHz band and may
impose corrective regulation in the future if warranted.

2° As previously mentioned, equivalent power for antenna heights
in excess of 1000 feet are established and set out at Section 89.651
(c), Table 1 of the new rules, For a trunked or urban-conventional
station, 1 kilowatt (ERP) is the maximum power regardless of
whether an antenna of less than 1000 feet is employed. For sub-
urban-conventional stations, the same principle applies, that is,
the maximum power is 500 watts (ERP) regardless of the height
of the antenna above average terrain, even when it is less than
500 feet (AAT).

T6a

station, the signal strength of the lower priority facility
should not exceed 30 dBu. Translated in terms of mileage,
it simply means that the two facilities, to afford one an-
other the protection required, must be 70 miles apart. For
suburban conventional stations, the distance is less, 45
miles. This is due to the use of lower power and antenna
height. Accordingly, these are the values we will use, but
they will not be applied in the same manner to trunked
and conventional systems, due to the complexity of the
loading problem, to be discussed, below.

Trunked Systems

79. As just stated, the separation between co-channel
trunked systems is to be 70 miles. This standard is to
apply in every case, regardless of where the trunked fa-
cility is located. This is feasible in trunked operations,
because the applicant must make an initial showing that
the facilities requested will be occupied in conformity with
the applicable loading criteria.

Conventional Systems

80. As we have said, for urban-conventional systems,
a basic co-channel separation of 70 miles is required to
enable the licensee to produce signal levels sufficient to
give good, or highly reliable, service. For suburban-con-
ventional systems, the separation is 45 miles. But we can-
not apply this criterion directly, because, for conventional
system, special provisions must be made to make loading
feasible. For this purpose, for now, we have decided to
use a simple protected-area approach. For urban-conven-
tional systems, this will be that area cireumscribed by a
cirele with 15 mile radii. This will be measured from the
designated geographic center of the Urbanized Area in-
volved, as set out in Section 89.751(g), Table 1, of the
new rules. Accordingly, all applications for urban-conven-
tional systems (those specifying a transmitter site within
15 miles from the geographic center of the mentioned

SD NGO SE SSK SPR ae a a Be

A I REE Ie

a

nn en oe eee ee eae

Urbanized Areas) will be considered, for loading pur-
poses, with any existing or proposed co-channel facility
in that area until the channel in question is fully occupied
in accordance with the loading criteria set out in our new
rules. Further, once a channel pair is assigned for use
within the reference 15 mile radii, it will be treated as
unavailable for use by any applicant specifying an antenna
site outside the 15 mile area, in that vicinity, of course.

81. For suburban-conventional systems (those with
transmitter sites more than 15 miles from the geographic
center of the mentioned Urbanized Areas), we have de-
cided to consider, for loading purposes, all proposals for
facilities specifying a transmitter site within 25 miles of
the site of an existing suburban station or within 25 miles
of the site specified in a prior filed proposal. Once the
channel pair in question is occupied, in accordance with
applicable standards, it will be treated as no longer avail-
able. Further, once a channel has been selected for occu-
paney by suburban-conventional stations, it will be un-
available for assignment for use in an urban-conventional
system, that is, in the same general area.

82. As stated, these measures are necessary to allow
us to load conventional systems vertically. To do this, we
must have some area or point of reference. The latter
would be a more desirable approach; but as the number
of co-channel stations multiplied, the problem of determin-
ing which systems should be taken into consideration in
deciding whether a given channel was fully occupied or
not rapidly becomes an impossible one, at least at the

30 We wish to be clear on what we mean here. We do not intend
to imply that a frequency pair, once designated for use in either
an urban-conventional, or suburban-conventional, system, may not
be used elsewhere for one type of system or another. This is not
the case. Locally, its use will be restricted. Nationally, it will not
be.

78a

present stage of development of our frequency manage-
ment program.

83. Accordingly, we plan to use the 15 and 25 mile
radii specification. With this decided, it is necessary to
adjust mileage separations for conventional stations to
account for the protected areas. Therefore, in the case of
urban-conventional systems, assignments on occupied co-
channel frequencies will not be made unless the proposed
site of the new facility is at least 85 miles from the geo-
graphic center of the Urbanized Area involved. As to
suburban-conventional systems, assignments on occupied
co-channel pairs will not be made unless the site of the
proposed station is at least 70 miles from the first subur-
ban co-channel station authorized and this is to be the
rule regardless of whether the channel assigned to that
station is fully oceupied or not.”

Channel Loading Standards
In General

84. For channel loading, in the absence of actual ex-
perience and data, especially for trunked systems of radio
communication of the type we have under consideration
at 900 MHz, we felt we should rely on the number of mo-
bile units in operation as a base from which to set up
channel occupancy figures. We have used mobile units,
for, over the years, in the land mobile services, we have
developed a series of guides for determining the channel
requirements of licensees in the several services.

** In any ease in which the proposed transmitter site is within
the 15 and 25 mile radii, such application, of course, will be studied
with co-channel stations in the protected areas, until such time
as the channel is loaded in accordance with applicable standards.
We would note, however, that all of these procedures are subject
to further study and review, and based on day-to-day operating
data, we may find they can be improved. Should this be so, appro-
priate steps will be taken to reflect this experience.

79a

85. For example, in the Police Radio Service, we have
found that, as a general rule, a channel pair can be em-
ployed in an effective manner in dispatching 50 mobile
units of the vehicular type and an even greater number of
portable or hand carried units. In this we recognize that
there are no two situations exactly alike and that there
are many factors to be taken into account. Among them
are average message length; the number of units in opera-
tion in any given time period; the number of times, each
hour, the dispatcher and mobiles originate calls; the num-
ber of dispatchers on duty at any one time; the size of
the system (the number of communication channels avail-
able for use at any one point in time); and, certainly, the
nature of the functions and activities of the licensee. All
of these factors have an impact on system capacity. Never-
theless, as an overall or average measure, we have de-
termined that in the Police Radio Service, 50 vehicular
mobile units per channel is a reasonable and realistic
criterion to apply in licensing stations in that service.

86. This may be contrasted to the Business Radio
Service. There, the frequencies allocated were intended
to be shared more intensively, because they were desig-
nated to serve a much broader group of eligibles and there
were inherent differences in the nature of the communi-
cations of businessmen and of police departments. Con-
sequently, higher loading standards were employed, with
each frequency or channel licensed to serve approximately
90 mobiles. In densely populated areas, where the demand
for business frequencies turned out to be very great and
message loads correspondingly heavy, this norm did not
always provide licensees with the communication capa-
bilities they felt they needed. Nonetheless, overall, the 90
mobile criterion proved to be a good guide in licensing
stations in the Business Service.

87. Similar conclusions have been arrived at as to fre-
quency loading in the other services. To illustrate, in the

Peceee

80a

Taxicab Radio Service, we know that a frequency pair
can be employed effectively in dispatching 150 mobiles or
more; and we have set channel loading in that service at
a higher level. Further, the communication needs and re-
quirements of licensees in the Power and Petrolewn Radio
Services are not the same as those in other radio services.
This is in part due to the fact that radio facilities are used
in different ways and for different purposes by licensees
in the several services. But we have found that users can
be grouped together for loading purposes; and that mobile
units can serve as a good guide for frequency assignment
purposes.

88. There is an added factor of some significance.
Where a channel is assigned for the exclusive use of a
particular licensee, circuit discipline of a high order ean
be maintained. It is relatively easy to do so, for the em-
ployees using the system are under the direct control of
the licensee; and he has an interest in seeing to it that his
messages to and from his mobile units are not delayed.
Also, system monitoring can be performed in a more effi-
cient manner, since station operators do not have to listen
for the signals of other licensees. This eliminates, to a
high degree, objectionable interference and message inter-
ruptions which cause inefficiencies. With these considera-
tions in mind, we have differentiated between systems
which are licensed to provide service to a single entity and
those serving several licensees. In doing this, we have
designated categories for single licensees; for 2 to 5
licensees; and for over 5 licensees.”

89. Summarizing, then, on the basis of the foregoing
considerations and also from what we have learned from
the vast record in this proceeding, we have developed the
norm or general rules to assist us in determining when an
assigned frequency is to be treated as occupied, or not

** See Section 89.802 of the new rules which deals with loading
requirements for conventional systems.

I a een ES
se eGR REDLINE PSS ELE NESTE LSE RI A
tei EE Ts a :

RLEED THF OUGH

Sla

occupied, in terms of its capacity to serve in an effective
way the requirements of the users. We used this back-
ground in assisting us in setting the loading requirements
at 900 MHz.

Loading Trunked Systems

40. For trunked operations, we have separated user
groups under five major headings, with police and fire
eligibles in one group; business licensees in another; inter-
urban and urban passenger motor carriers in the third
group; and, in the fourth group, the ‘‘all other’’ classifiea-
tion, we would include the remaining service categories.
For radiotelephone operations, a special criterion is used,
due to the nature of such systems of communication.”

91. While we recognize that trunking provides added
efficiencies in the use of the spectrum and improved com-
munication service, to the present time we are not certain
of the degree of improvement in channel capacity. In this
regard, while we recognize certain data does exist as to
wire line telephone operation, we are not sure that this same
criteria ean be applied to the types of 900-MHz systems
with which we are concerned, here. There are many vari-
ables, and we feel that we do have sufficient experience
with the interplay of these factors to permit us to establish
definite loading standards at this time.

92. In the light of these considerations, but using such
information as has been made available to us on this sub-
ject, we have designated levels for channel loading which
we believe most closely approach what actual operating
experience will indicate. Accordingly, although these eri-
teria must be treated as interim in nature, we will require,
until operating data becomes available, that they be fol-

“8 Applicants may apply for radiotelephone systems only where
trunked operation is planned. Conventional systems, because of
the efficiency element, may not be employed for this mode of use.

82a

lowed. In this connection, we will ask our licensees to
maintain traffie records to assist us in any future re-evalu-
ation of our standards.

93. For the purpose, then, we require trunked system
serving the various user groups to be loaded as follows: **

5 channels 10 channels 20 channel

Police and

Fire Group 300 750 1500
Business Group 500 1000 2000
Passenger Motor

Carriers 800 1600 2500
All other Groups 400 800 1600
Radiotelephone

Group 200 400 800

94. It is our belief that these interim loading parameters
will provide users with high quality service on an efficient
basis. But, as we have said, we consider these measures as
interim ones, which, if necessary or desirable, will be modi-
fied to conform with what actual operating conditions show
loading should be. Further, as we have indicated, we will
not permit conventional systems to be used for radiotele-
phone operations. Our basic reason for this is that in
conventional mode, principally because of the nature of
telephonic communication, use of single channels or groups
of single channels is inefficient for that purpose.

Loading Conventional Systems

95. Loading standards for conventional systems were
developed out of the general considerations which we have
outlined, above. As in the case of trunked facilities, we
have grouped together users which we feel have similar
or at least compatible communication requirements. Thus,
police and fire users are grouped together. For them, the
loading criterion will be 50 mobiles or 100 portable units.

°4 See Section 89.801 of the new rules which sets out loading re-
quirements for trunked facilities.

RLEED THPOUGH

:
—— . *. * * >. > * * *

ent ote —— |

94a

(e) Operation in the frequency bands 806 to 821 and
851 to 866 MHz is limited to F3 emission.
4. In § 89.107 (b)(2), the Table is amended to read as
follows:

§ 89.107 Emission limitations.

* . ° e e . e * . °
( b) eee
( 2) *ee
Frequency Band Authorized Frequency Deviation
MHz Bandwidth (kHz) (kHz)
25-50 20 5
50-150 (1) 20 (1) 5
150-450 20 5
450-470 (2) 20 (3) 5
470-512 20 H)
806-821 20 5
851-866 20 5
. s . . . * ° 7 > *

5. In § 89.109, Paragraphs (d) and (i) are amended to read
as follows:

§ 89.109 Modulation requirements.

(d) Each transmitter in the frequency ranges 25 to 50,
150.8 to 162, 450 to 512, 806 to 821, and 851 to
866 MHz shall be equipped with an audio low-pass
filter. Such filter shall be installed between the
modulation limiter and the modulated stage and
shall meet the specifications contained in para-
graph (h) or (i) of this section. The provisions
of this paragraph do not apply to transmitters of
licensed radiocommunications systems operated
wholly within the limits of one or more of the
territories or possessions of the United States or

es COCR TLIDOLIGH

6.

2 ke OTD

a

Alaska, or Hawaii, except those systems operating
in the frequency ranges 806 to 821 MHz, and 851
to 866 MHz.

(i) For stations authorized in the 450-470 MHz band
on or afte

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0062%3A1. Public record. Not legal advice.