FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 8
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Federal Communications Commission Record
It is, thus, inarguably clear that the PPM contemplated
several discrete and sequential processes: (1) site selection;
(2) "user notification" to other common carrier microwave
frequency users; (3) "frequency clearance by a national
frequency data base"; (4) ordering of radio gear; (5)
"preclearance release from the FCC for construction";
and (6) "lalctual construction of the sites." This contemplated
sequence is graphically replicated in a
"Equipment Ordered" is step #2; and "FCC Pre-Build
Order" is step #3, all as to the Wasatch Front System. The
identical process sequence is depicted with respect to
additional portions of the proposed T/S system. (It must
be borne in mind throughout this and the following
discussion of the record evidence that T/S principals now
contend in their defense (1) that they did not consider
coextensive their PPM term "FCC Pre-Build Order" and
an FCC Construction Permit, but rather (2) that the
frequency clearance process and the "preclearance build
order" from the FCC were considered by T/S principals
to be one-and-the-same thing. This defense is discussed
more extensively below after further review of the record
12. Also in the record is a letter of April 17, 1984 from
Noel Stewart to T/S shareholders which, in pertinent part,
Some shareholders may be surprised to find that
FCC clearances are now even more streamlined and
favorable for implementation of the NET I SYSTEM
than was reported in the Memorandum when
it was initially prepared last November. Currently,
the FCC does not even require that a Nondominant
214 Specialized Carrier Certificate be applied for.
The only requirement now is a six months update
filing of changes in facilities. Also. as was reported
in the Memorandum, no filing of a tariff is required.
Currently, the FCC no longer requires a
common carrier to have FCC frequency clearances
in hand before operating a common carrier network.
In attempts to streamline implementation of
new networking facilities, the FCC now requires only
that a Construction Permit (CP) be obtained and that
an application have been filed for the frequency licenses.
This Construction Permit is granted by the
FCC after the time lapse with no objection or that any
objections were coordinated on the 30-day public
notice filing of the new network frequencies and
In the case of the NET I SYSTEM, for instance,
after the frequencies of the route are coordinated by
Spectrum Planning (the national frequency coordination
company being used), the NET I SYSTEM
route and frequencies will be submitted to a 30-day
user notification. This 30-day user notification addresses
all present radio users along the intended
route. This, in reality, is the essence of the frequency
clearance procedure, since these users, who
are located along the route. are the only parties who
could rationally object to the intended coordination
for reasons of interference with their systems by the
intended new route. After the 30-day user notification
is coordinated an FCC 435 form is filed for
30-day public notice."
It seems evident here, also, that Noel Stewart recognized
the correct regulatory sequence, to wit: (1) frequency
notification and coordination process; and (2) filing of
FCC Forms 435 to obtain Construction Permits.
13. A June 7, 1984 letter to T/S shareholders from Noel
Stewart, in pertinent part, states 24:
"The events ahead are: (1) Prior coordination (User
Notification), (2) construction acquisitions and
preparations, (3) site acquisition and formal leases
on privately owned sites, (4) implementation of
Phase II construction (low cost items and prefabrications),
(5) finalization of User Notification
coordination, (6) public notification, (7) FCC granting
of CP and final constructions.
Parallel planning for time-critical aspects are currently
underway. These include: User access lines,
planning commission approvals of building permits
that are time-intensive (all sites are zoned for our
purposes), providing potential customers with tariff
network coverage information.
Some preliminary constructions of towers and other
items will soon be underway. After the 30-day User
Coordination is over-anticipated time-frame is mid
July-some private sites will be obtained and the
construction phase will begin on certain sites. Upon
finalization of public notification and granting of CP
by the FCC the construction process will be well
underway. Tower and shelter designs are being completed
now in preparation for the construction phase.
14. And, a similar letter of July 14. 1984, states 25:
"In other matters, the NET I SYSTEM has been on
User Notification or prior coordination for approximately
a week and a half (one notice filed July 2,
1984, and the remaining part of the NET I SYSTEM
filed July 11, 1984). To date, Compucon, the
company chosen to do the frequency coordination
has not received a notice of interference condition.
Generally, though a notice from a user does not
arrive until the latter part of the 30-day period is
over. Prior coordination, provided all goes well,
should end August 7
After prior coordination, as previously mentioned, a
435 Form will be filed with the FCC for an FCC
construction permit (CP). The FCC CP will usually be
granted after an additional 30-day public notice by
Hopefully, before receiving the FCC CP, most of
the private sites will be constructed which will leave
3 remaining sites to be completed during September
after receiving the FCC CP.
15. That July 14 letter discloses clearly that T/S president
Noel Stewart had anticipated that its frequency
coordination efforts "should end August 7
11, 1984" and
that it would receive its FCC Construction Permit(s) by
or before September, 1984. However, the T/S frequency
coordination process was not completed by the antici8
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987, book, January 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1597/m1/15/: accessed January 22, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.