In-Flight Phone Corporation's Pioneer's Preference Request

[[Page 64348]]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[ET Docket No. 94-32; FCC 95-454]

In-Flight Phone Corporation's Pioneer's Preference Request

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: By this Third Report and Order (Third R&O), the Commission

denies In-Flight Phone Corporation's (In-Flight's) request for a

pioneer's preference in the General Wireless Communications Service

(GWCS) at 4660-4685 MHz. The Commission finds that the GWCS service

rules are not a reasonable outgrowth of In-Flight's ground-to-air

programming service proposal, that In-Flight failed to demonstrate the

technical feasibility of its proposal in the 4660-4685 MHz band, and

that In-Flight's proposed ground-to-air programming service is not

sufficiently innovative to warrant a preference in any band. This

action is intended to affirm the Commission's policy of awarding

pioneer's preferences only for innovations of some significance.

EFFECTIVE DATE: December 15, 1995.

FOR FURTHER INFORMATION CONTACT: Tom Derenge, (202) 418-2451 or Rodney

Small, (202) 418-2452, Office of Engineering and Technology, Federal

Communications Commission, Washington, DC 20554.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third

R&O adopted November 1, 1995, and released December 5, 1995. This

action will not add to or decrease the public reporting burden. The

full text of the Commission decision is available for inspection and

copying during regular business hours in the FCC Reference Center (Room

239), 1919 M Street, NW, Washington, DC. The complete text of this

decision also may be purchased from the Commission's duplication

contractor, International Transcription Services, Inc., (202) 857-3800,

2100 M Street NW., Suite 140, Washington, DC 20037.

Summary of Third R&O

1. In-Flight originally filed its pioneer's preference request in

the narrowband Personal Communications Services proceeding, ET Docket

No. 92-100. It sought a preference in the 901-902 MHz and 940-941 MHz

bands for a live ground-to-air audio news, information, and

entertainment programming service for airline passengers. However,

because the rules adopted in Docket 92-100 were not related to In-

Flight's proposal, no action was taken on its pioneer's preference

request.

2. In February 1995, the Commission adopted a First Report and

Order and Second Notice of Proposed Rulemaking in Docket 94-32, 60 FR

13102 (March 10, 1995), reallocating 50 megahertz of Federal Government

spectrum at 2390-2400, 2402-2417, and 4660-4685 MHz to non-Government

use; and proposing that the 4660-4685 MHz band be used by the General

Wireless Communications Service (GWCS).

3. In March 1995, In-Flight filed a Petition for Declaratory

Ruling, requesting that its pending pioneer's preference request be

considered in the GWCS. In-Flight also stated that it would provide

video, as well as audio, services as a GWCS licensee. The Petition was

placed on Public Notice on April 28, 1995; however, no comments were

filed on the Public Notice.

4. On June 8, 1995, in response to the Commission's Third Report

and Order in the pioneer's preference review proceeding, ET Docket No.

93-266, 60 Fed. Reg. 32116 (June 20, 1995), In-Flight filed a

Supplement to its pioneer's preference request. In its Supplement, In-

Flight argued that it was not likely to recover its investment in

developing what it now referred to as its ``aircraft audio and video

programming service'' unless it received a pioneer's preference, and

also requested that its preference request be placed on public notice.

On June 16, 1995, In-Flight's preference request, including the

Supplement, was placed on Public Notice and assigned file number PP-88

in Docket 94-32.

5. On July 3, 1995, Claircom Licensee Corporation filed an

opposition to PP-88, in which it stated that In-Flight's programming

service is not innovative. On July 13, 1995, In-Flight filed a reply to

Claircom's opposition. On July 31, 1995, the Commission adopted a

Second Report and Order in Docket 94-32, 60 Fed. Reg. 40712 (August 9,

1995), allocating the 4660-4685 MHz band for the GWCS and adopting

service rules.

6. In the Third R&O, the Commission found that--inconsistent with

the pioneer's preference rules--the GWCS service rules are not a

reasonable outgrowth of In-Flight's ground-to-air programming service

proposal. Additionally, the Commission found that In-Flight failed to

demonstrate the technical feasibility of its proposal in the 4660-4685

MHz band. The Commission stated that In-Flight's technical achievements

in developing and testing equipment in the 901-902 MHz and 940-941 MHz

bands are not directly relevant to the 4660-4685 MHz band, due to

differences in propagation. Finally, the Commission found that In-

Flight's proposed ground-to-air programming service is not sufficiently

innovative to warrant a preference in any band. The Commission

concluded that In-Flight did not demonstrate that its technological

developments are innovative given the state-of-the-art technologies

used in providing 800 MHz air-ground radiotelephone service.

7. Accordingly, it is ordered, That the pioneer's preference

request (PP-88) filed by In-Flight Phone Corporation in this proceeding

is denied. It is further ordered, That the request for pioneer's

preference filed by In-Flight Phone Corporation in ET Docket No. 92-100

is dismissed as moot. It is further ordered, That the petition for

declaratory ruling filed by In-Flight Phone Corporation is granted in

part and denied in part.

List of Subjects in 47 CFR Part 1

Pioneer's preference, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95-30550 Filed 12-14-95; 8:45 am]

BILLING CODE 6712-01-P