FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 88

Federal Communications Commission Record

Before the
Federal Communications Commission
Washington, D.C. 20554
In re Application of

LEHIGH VALLEY
MOBILE
TELEPHONE File No. 23131-CD-P-83
COMPANY
For a new one-way station to operate
on a 900 MHz frequency in the
Domestic Public Land Mobile Service
at Cherry Hill, New Jersey
ORDER ON REVIEW
Adopted December 18, 1986; Released: January 8, 1987
By the Commission:
1. Before the Commission is an Application for Review
of the Common Carrier Bureau's Order on Reconsideration,
Mimeo No. 248, released October 16, 1985. Petitioner
requests that the Commission overturn the
Bureau's ruling denying the referenced application.
2. On January 31, 1983, Lehigh filed its captioned
application for a 900 MHz frequency in Cherry Hill, New
Jersey. On January 23, 1984, Airsignal, Inc., filed an
application for assignment to Lehigh of a 43.58 MHz
paging license in Philadelphia, Pennsylvania. The Philadelphia
station is within 40 miles of the proposed Cherry
Hill location. In conjunction with the assignment application,
Lehigh filed a Petition for Special Relief, that contained,
inter alia, a projected need showing for its regional
paging system, of which the Philadelphia station would be
a part. Finally, on May 10, 1984, Lehigh filed an application
for paging stations at Englesville, Gardentown, and
Berlin, Pennsylvania; each of the requested locations is
within forty miles of the location proposed in the Cherry
Hill application.
3. On June 16, 1985, the Mobile Services Division
dismissed Lehigh's Cherry Hill application for failure to
provide a timely traffic loading study of the Philadelphia
station. In addition, the Bureau noted that pursuant to
Section 22.525(e)l of the Commission's Rules, the Cherry
Hill application had been amended and superseded by the
Englesville-Gardentown-Berlin application. Lehigh subsequently
filed for reconsideration of the dismissal and
included in its petition loading information showing current
traffic levels for the regional system. On reconsideration,
the Bureau upheld the Division's decision.
4. In its Order, the Bureau found that reconsideration
should be denied for two reasons. First, it found that
Lehigh did not meet the requirements of Sections 22.5162
and 22.525(b)3 of the Commission's Rules, which require
that a traffic loading study be filed for applicant's existing
stations within 40 miles of a proposed 900 MHz location.
Lehigh failed to amend its Cherry Hill application with a
traffic loading study of the Philadelphia station within 30

days of consummation of the assignment.4 Second, the
Bureau found that the above-captioned application was
amended by a later-filed application for a paging station
at Englesville-Gardentown
Berlin, Pennsylvania, pursuant
to Section 22.525(e) of the Commission's Rules. As
noted in fn. 1, supra, that rule states that a pending 900
MHz application will be amended by a subsequent oneway
paging application, if the base station location is
within forty miles of the location requested in the pending
900 MHz application. Here, the EnglesvilleGardentown-Berlin
application was for a paging station
within 40 miles of the instant Cherry Hill location, and it
was filed after the Cherry Hill application. Accordingly,
the Bureau found that the captioned application had been
amended by the later filed application and was ineligible
for grant of a 900 MHz frequency.
5. In its application for review, Lehigh argues that the
Bureau should have considered the projected traffic loading
study, filed with its Petition for Special Relief,5 to be
sufficient to justify an additional frequency. Lehigh further
argues that the delay in filing its loading study
showing current regional traffic levels was justified, because
it was filed within 30 days of receiving notification
that the Petition for Special Relief was denied.
6. Lehigh's arguments are rejected. Lehigh's traffic loading
projections (see para. 2, supra ), are speculative, and
are not an acceptable substitute for the requirement that a
specific level of traffic loading be in existence prior to
application for an additional frequency. The Commission's
rules on traffic loading are designed to ensure
efficient use of spectrum. Grant of additional frequencies
before the existing frequency channels are fully utilized
would be wasteful. In order to demonstrate that a waiver
of Section 22.525(b) of the Commission's Rules is justified,
Lehigh is required to show that the underlying
purpose of the rule would not be served, or that there are
unusual and unique circumstances which would justify a
waiver. Lehigh has not made such a showing. First, the
underlying purpose of the rule would be served by denial
of Lehigh's application because Lehigh did not show that
spectrum efficiency would be improved by grant of its
application. Second. there are no unusual or unique
circumstances in this situation. The Philadelphia station,
although not yet operational due to lack of state certification,
was to be a part of a regional network which
broadcasts each page over all the transmitters on the
network. Accordingly, its level of traffic loading would be
the same as the network as a whole, and a traffic loading
study of the regional network would have fulfilled the
requirements of Section 22.525(b).
7. In addition. Lehigh's argument that it should not be
expected to file a traffic loading study until after its
waiver request had been denied is similarly rejected. Section
22.19(b) explicitly states that if a waiver is not
granted, an application will be dismissed as defective
unless the applicant has also provided an alternative proposal
which complies with the Commission's Rules, including
any required showings.
8. Finally, we find that even if we granted Lehigh's
application for review on the issues it raises, its captioned
application could not be reinstated. As noted supra, Section
22.525(e) of our Rules states that subsequently-filed
applications for paging frequencies will amend previouslyfiled
900 MHz frequency paging applications, where the
proposed locations are within 40 miles of each other.
Here, Lehigh filed the Englesville-Gardentown-Berlin ap