******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ACADIAN AMBULANCE SERVICES, INC.) Request for Rule Waiver ) ORDER Adopted: November 5, 1999 Released: November 9, 1999 By the Commission: I. INTRODUCTION 1. The Commission has before it an Application for Review filed by Acadian Ambulance Services, Inc. (Acadian) seeking review of a Commercial Wireless Division, Wireless Telecommunications Bureau order. The Commercial Wireless Division denied Acadian's request for waiver of the Commission's freeze on the acceptance of applications for new paging facilities. Upon review, we conclude that Acadian's Application for Review should be granted, and we therefore grant a waiver of the Commission's orders suspending the acceptance of paging applications, subject to certain conditions. II. BACKGROUND 2. In February 1996, the Commission proposed rules to replace the existing site-by-site licensing of paging services with a geographic area licensing scheme under which mutually exclusive applications will be resolved by competitive bidding. These changes were intended to streamline licensing procedures and provide a flexible operating environment for all paging services. In order to facilitate the transition to geographic area licensing, the Commission suspended the acceptance of new applications for paging channels that were not received by midnight February 8, 1996. 3. Acadian is a commercial entity that provides ambulance service and conventional paging services. It operates its system on the 152.510 MHz frequency, a frequency that is designated for commercial use under Part 22 of the Commission's rules. On April 16, 1998, Acadian filed four applications for authorization to construct and operate new transmitting facilities in the paging and radiotelephone service on frequency 152.510 MHz at various sites in southern Louisiana. Acadian also submitted with its applications a Request for Rule Waiver (Waiver Request) of the paging application freeze. 4. In support of its Waiver Request, Acadian stated that it recently merged with another ambulance service, and that it seeks to expand the service area of its existing communications network that operates on the 152.510 MHz frequency into the acquired company's territory. Acadian contended that the nature and breadth of its ambulance service presents unique problems and constraints on the types of radio equipment and licenses that are available to meet its needs. Acadian stated that its communications network must be on exclusive use frequencies due to the nature of its emergency medical service (EMS), and therefore that the shared channels, which are not subject to the freeze, are inappropriate for its use. Acadian argued that concerns for public health and welfare dictate use of exclusive channels because emergency calls may be delayed or lost if it uses the available shared channels. Furthermore, Acadian argued that operating on a frequency other than 152.510 MHz will cause problems with personnel coordination because of the difficulty in integrating a different frequency into its existing network. Because of its extensive investment in equipment using the 152.510 MHz frequency, Acadian claimed, it is impractical and uneconomic to expand its service area using different channels. Additionally, Acadian contended that tests of equipment using frequencies in the 450 MHz band proved that communication over these frequencies was extremely unreliable in its service area due to widespread marshlands and pine trees. Acadian claimed that granting its waiver request is in the public interest as its system will not only benefit its customers, but all members of the public who may someday need, or know someone who may need, its EMS services. Characterizing the new service territory as rural and underpopulated, Acadian asserted that there is little likelihood that these remote locations will ever be built out by commercial paging operators, and that the emergency services it will be able to provide in these areas are vital. 5. On August 13, 1998, the Commercial Wireless Division (Division) denied Acadian's waiver request and dismissed its applications. The Division concluded that Acadian did not meet the criteria for granting a waiver. Specifically, the Division found that Acadian had not demonstrated that grant of its waiver request would be in the public interest, that application of the paging freeze to Acadian's applications would frustrate the purpose of the freeze, or that unique circumstances existed to justify grant of its waiver request. Acadian timely filed an Application for Review on September 4, 1998. 6. In its Application for Review, Acadian contends that Commission review of the Division's decision is warranted because denial of its waiver request is in conflict with legal precedent and Commission policy. Acadian reiterates the same contentions raised in its waiver request: that it needs an exclusive common frequency with wide-area coverage throughout its service area in order to protect its customers' health and safety and coordinate its personnel. Acadian further reiterates its earlier arguments that commercially available services cannot satisfy its unique needs. Because of these considerations and because of the critical emergency service it provides to the public in Louisiana, Acadian argues, its request is unique and a waiver of the paging application freeze would be in the public interest. Finally, Acadian contends that the facts and circumstances related to its situation are no different than the facts and circumstances of cases in which the Wireless Telecommunications Bureau has waived for certain applicants a similar freeze on applications in the 800 MHz SMR service. III. DISCUSSION 7. A waiver of our rules applicable to Public Mobile Services is appropriate when a party demonstrates either (1) that the underlying purpose of the rule would not be served or would be frustrated by application to a particular case, and that grant of a waiver is otherwise in the public interest, or (2) that the unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest, or that the applicant has no reasonable alternative. The Division found that Acadian did not provide sufficient justification for granting a waiver pursuant to this standard. Although the general concern with preserving the current licensing landscape as we transition to geographic area licensing is warranted, we find that, in this instance, Acadian has satisfied the waiver standard set forth in section 1.925(b)(3) of the Commission's rules. On the record presented in this proceeding, we find that two factors, taken together, establish unique facts and circumstances that warrant a waiver of the paging application freeze in order to avoid a result that is contrary to the public interest. 8. First, Acadian uses its paging frequency in large part for purposes that are closely related to its provision of EMS. In part, Acadian uses this frequency to contact its own emergency personnel. Acadian explains that its Computer Aided Dispatch (CAD) system, which operates over 152.510 MHz, enables it to relay vital data to its emergency technicians quickly and efficiently using alphanumeric pagers. The system also automatically verifies the transmission of information to mobile data terminals in each ambulance. Because this system is already operating over 152.510 MHz in those areas that Acadian already serves, having to use a different frequency for the recently acquired area would impede the seamless functioning of Acadian's personnel coordination system. In addition, Acadian uses its paging system to offer its "On-call Alert" service. A subscriber to this service wears a pendant, and when the patient presses a button on the pendant, it activates Acadian's CAD system and summons the dispatcher to send an ambulance. Friends or relatives may also be supplied with a pager, and may be notified when the patient presses the pendant's button. The operation of this service across Acadian's service area would also be obstructed in the absence of a common frequency. Thus, in the absence of a waiver, it would be difficult or impossible for Acadian to provide the same services in its newly acquired territory as in its existing territory. 9. Second, Acadian has shown that the geographic area into which it seeks to extend its system is predominantly rural and sparsely populated. The rural character of the area to be served, and the resulting greater distances between residents and health care facilities, may increase the need for precise coordination of Acadian's EMS personnel. Moreover, even for the commercial paging services that Acadian also offers, paging customers are likely to have fewer competitive alternatives, and new geographic area licensees are likely to commence service less quickly, in rural than in more urbanized areas. Thus, the rural nature of the area to be served is an additional factor in favor of permitting Acadian to expand its system into this area pending the completion of geographic area licensing and the geographic area licensees' commencement of operations. Taking together all the unique facts and circumstances of this case, including the rural nature of the area into which Acadian seeks to extend its system and its use of the system in large part for services that are closely related to its provision of EMS, we conclude that failure to grant a waiver, as conditioned below, would be contrary to the public interest. 10. In order to further ensure that this waiver is consistent with the public interest, we will impose the following conditions: (1) any licenses granted to Acadian pursuant to this waiver will have secondary status to the ultimate geographic area licensees for all Economic Areas (EAs) into which Acadian's interference contours extend; and (2) upon receiving notice from a geographic area licensee that the geographic area licensee intends within 90 days to initiate operation of a facility the interference contour of which will overlap with the interference contour of any transmitter licensed pursuant to this waiver, Acadian shall within 90 days either cease operation of the transmitter in question or change its technical parameters to eliminate the overlapping interference contour. We note that Acadian proposed to accept secondary status for any licenses granted pursuant to its waiver request in a letter to the Division on June 19, 1998. We believe that grant of a waiver request subject to these conditions appropriately balances the unique value Acadian's service provides to the public, and its need to operate its additional transmitters on the same frequency as its existing system, against the importance of preserving the current licensing landscape as we transition to geographic area licensing. In particular, we believe that this plan will provide Acadian with both the incentive and a reasonable amount of time to negotiate an arrangement, such as partitioning, with the ultimate geographic area licensee, if warranted, and at the same time will protect both Acadian and the public from the consequences of unnecessarily forcing Acadian to discontinue its service. We note that it is incumbent on Acadian, in the event that it does not successfully bid on the relevant geographic area licenses, to make arrangements that will permit it to continue to offer the services discussed in this order. 11. We emphasize that, even though we will grant Acadian's licenses subject to the conditions stated herein, we do not suggest that all incumbent paging licensees will necessarily be permitted to expand their systems subject to similar conditions. In light of the fact that the auction of geographic area paging licenses in the 929 MHz and 931 MHz bands is scheduled to begin on February 24, 2000, with the other paging frequency bands to follow thereafter, we believe that in the vast majority of circumstances, the geographic area licensing process will be sufficient to meet the expansion needs of existing paging systems. We conclude only that under the unique circumstances of this case, denial of a waiver as conditioned herein would be contrary to the public interest. 12. Within 30 days of the effective date of this order, if the conditions set forth herein are acceptable to Acadian, Acadian shall refile the applications that were previously dismissed by the Division, together with an indication in writing that it will accept these conditions. Upon receipt of this submission, the Division will promptly place Acadian's applications on public notice as accepted for filing and will process those applications in accordance with the Commission's rules and its customary procedures, notwithstanding the paging application freeze. IV. CONCLUSION 13. For the reasons discussed herein, we conclude that grant of Acadian's Application for Review is warranted, and we waive the paging application freeze subject to the conditions set forth herein. V. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that, pursuant to the authority of Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 303(r), and Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, the Application for Review filed by Acadian Ambulance Services, Inc. IS GRANTED to the extent stated herein. 15. IT IS FURTHER ORDERED, pursuant to the authority of Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 303(r), and Section 1.925(b)(3) of the Commission's Rules, 47 C.F.R.  1.925(b)(3), that the Request for Waiver of the paging application freeze filed by Acadian Ambulance Services, Inc. IS GRANTED to the extent stated herein. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary