$// Regional Communications, Inc., FCC 94-342//$ $/ 90.615(b)(2)(ii) Frequencies Available in General Category/$ $/ 90.621(c) Selection and assignment of frequencies/$ RECORD ONLY Before the Federal Communications Commission FCC 94-342 Washington, D.C. 20554 In the Matter of Regional Communications, Inc. Licensee of SMR Station WNVA721 Application to take assignment of Frequency 853.1875 MHz from Dale Walsh and convert the frequency to trunked use. MEMORANDUM OPINION AND ORDER Adopted: December 23, 1994 Released: February 9, 1995 By the Commission: INTRODUCTION 1. Mobile Communications Service of Miami, Inc. ("Mobile") filed an Application for Review (the "Application") on September 8, 1992. In the Application, Mobile asks the Commission to set aside a grant of authority to Regional Communications, Inc. ("Regional") allowing Regional to take assignment of a single channel conventional station and then to combine that channel with other existing conventional stations to form a trunked SMR system. 2. In order to decide this case, we explain our policies on enforcement of our rules requiring certain licensees to be in operation within specified periods in light of clarified "placed in operation" requirements adopted on October 24, 1991. We also explain the interaction between former rule  90.615(b)(2)(ii) and former rule  90.621(c) of the Commission's Rules. For the reasons that follow, the Application is denied. BACKGROUND 3. Mobile objects to the grant of authority to Regional to acquire station WNUX405 from Dale Walsh and combine that station, with others, to form a trunked SMR system under call sign WNVA721. 4. Mobile and Regional both operate on 853.1875 MHz in Florida. Their base stations are approximately 52 miles apart. Both licensees utilize this channel in trunked SMR systems. 5. Mobile makes three arguments why the grant of authority to Regional is improper. The first argument concerns Regional's prede- cessor, Dale Walsh. Mobile claims that Walsh failed to timely con- struct his station and place it in operation, and as a result his license cancelled automatically. Mobile bases this claim on the assertion that no end users were licensed by Walsh's construc- tion/placed-in-operation deadline. 6. Mobile also argues that because it operates a co-channel facility 52 miles from the Regional system, former rule  90.615(b)(2)(ii) required that Mobile obtain its written consent prior to being permitted to trunk this channel. See 10, infra. 7. Finally, Mobile argues that Regional's technical showing was inadequate. Mobile points out that confusion existed regarding the height of the building on which Regional's repeater was mounted, thus causing Regional to rely on erroneous data when filing its application for authority to trunk the channel in question. DISCUSSION 8. Mobile's first argument is that the Walsh license cancelled automatically because no end users applied for licenses on his system until several weeks after his construction/placed-in-operation dead- line. By Report and Order (Order) adopted October 24, 1991, 6 FCC Rcd. 7297 (1991), we amended our rules,  90.631 and 90.633, to clarify that for conventional systems, the licensee must construct the base station and place one mobile in operation eight months from the date of licensing. Id. at 7299, 7316. At that time, we directed that enforce- ment of these provisions begin with systems having construction dates falling on or after the effective date of the Order, January 21, 1992. Because the Walsh construction deadline was August 13, 1991, his system predates the start of our enforcement of the revised construction and placed in operation requirement. 9. We provided this prospective enforcement schedule due to the significant confusion which, at that time, surrounded the "placed in operation" requirement. Having announced this schedule, we find that Mobile's assertions that Walsh's license cancelled automatically are not well taken. It would be unfair to enforce the clarified require- ment given the misunderstanding over what constituted placing a station into operation. Having constructed his station which was capable of being operated, Walsh apparently believed that he had satisfied all necessary requirements. The Commission, in its Order, clarified that constructing a station and placing it in operation are two separate actions, each of which must be taken to satisfy the construction/placed in operation requirement. 10. Mobile's second argument asserts that the grant of authority for Regional to combine the General Category channel obtained from Walsh with other channels to form a trunked system was improper because former  90.615(b)(2)(ii) required that the written consent of co- channel users within 70 miles be obtained prior to trunking a General Category channel. Mobile, however, does not discuss the qualifying language contained in former  90.615(b)(2)(ii), which stated: Each application must include a written signed statement from each co-channel licensee located within 70 miles of the primary site of the trunked system verifying that each such licensee has agreed to the proposed trunked use (see  90.621(c)). The statement should include each licensee's call sign. (emphasis added). 11. The parenthetical reference in former  90.615(b)(2)(ii) to former  90.621(c) qualified the 70 mile requirement. Seventy miles is the typical separation required to prevent overlap between the predicted 40 dBu/30 dBu contours for typical co-channel systems. The separation necessary to provide this protection varies with terrain and other factors, and the rule recognizes the possibility of variance by its reference to former  90.621(c), which provides in pertinent part: Trunked systems authorized on frequencies in the ... General categories will be protected solely on the basis of predicted contours. Coordinators will attempt to provide a 40 dBu contour and to limit co-channel interference levels to 30 dBu over an applicant's requested service area. This would result in mileage separation of 70 miles for typical system parameters. Applicants should be aware that in some areas, e.g., Seattle, Los Angeles, and northern California, separations greater than 70 miles may be appropriate. Sepa- rations may be less than 70 miles where the re- quested service areas, terrain, or other factors warrant reduction. In the event that separation is less than 70 miles, the coordinator must indi- cate that the protection criteria have been pre- served or that the affected licensees have agreed in writing to the proposed system. (emphasis added). The former rule alerts applicants that protection from co-channel users was based solely on predicted contours. 12. Comparing this section with former  90.621(b), which provid- ed for fixed mileage separation criteria of 70 miles (with enumerated exceptions) without reference to the contour protection criteria, supports this interpretation. If  90.615(b)(2)(ii) meant that trunked systems such as Mobile's were to receive protection solely on the basis of fixed mileage separation criteria, it would contradict former  90.621(c), which states that Mobile is entitled to protection solely on the basis of predicted contours. The Commission has amended its short spacing criteria and made the new criteria found in  90.621(b), 47 C.F.R.  90.621(b), applicable to all Subpart S sta- tions operating over 800 MHz. See also, 58 Fed. Reg. 61843 (1993). The rules for allowing trunked use of General Category frequencies requires the written consent of all co-channel licensees within a protected zone. This zone is generally 70 miles unless a demonstration is made that the area of operation, terrain, or other factors warrant a differ- ent zone of protection. While the size of this zone has recently been changed, the policy remains unchanged. 13. The spacing between Regional and Mobile, while less than 70 miles, provides for the zone of protection described in former  90.621(c). Regional demonstrated that 40 dBu/30 dBu protection exists here, and the frequency coordinator so certified. Mobile has not contested the grant on the basis that 40 dBu/30 dBu protection is not present. 14. Further, in a Report and Order adopted June 24, 1990, PR Docket No. 87-213, 5 FCC Rcd 4016, 4021 (1990), we stated our intention that the rule requiring written consent of co-channel users is to protect licensees who share the use of a particular channel. See, Id., paragraph 44, and footnote 61. Mobile and Regional, because they are separated by a 40 dBu/30 dBu predicted contour, were not considered to be sharing this channel under the standards applicable at the time Regional's application was granted. Therefore, the text of the June 24th Order adopting former  90.615(b)(2)(ii) supports the result we are adopting today. 15. Mobile also contests the grant of authority to Regional claiming that Regional's licensed antenna height was in error. Ini- tially, Regional's application reflected a building height of 323 feet, which was based on information in the Commission's antenna tower database. Because the Commission returned other applications involving antennas on the same building to Regional's counsel stating that the height of the building was 299 feet, Regional amended its application to reflect the corrected information. After being alerted to the possibility that the building height was in error, Regional reviewed the building plans with the building manager and discovered that the building is 358 feet tall. Regional has applied for proper FAA clear- ance and to modify its license to reflect the appropriate height and reduced power limitation to maintain the same contours. 16. The Licensing Division granted Regional's license modifica- tion on December 16, 1992. Mobile's arguments do not demonstrate that this inadvertent error that arose from faulty information in the Commission's database provides sufficient grounds to set aside the Regional license. 17. IT IS ORDERED THAT, for the reasons stated, the Application for Review filed by Mobile Communication Service of Miami, Inc. in the above-captioned matter IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Secretary