In the Matter of PETITION OF LEHIGH COOPERATIVE FARMERS, INC

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In the Matter of PETITION OF LEHIGH COOPERATIVE FARMERS, INC., SEEKING RADIO FACILITIES IN THE SPECIAL INDUSTRIAL RADIO SERVICE BY AMENDMENT OF RULE SECTION 91.501 OR BY WAIVER OF THE RULE

RM-945

FEDERAL COMMUNICATIONS COMMISSION

10 F.C.C.2d 315 (1967); 11 Rad. Reg. 2d (P & F) 1560

RELEASE-NUMBER: FCC 67-1111

October 4, 1967 Adopted

BY THE COMMISSION: COMMISSIONER BARTLEY ABSENT; COMMISSIONER COX DISSENTING; COMMISSIONER LOEVINGER ABSTAINING FROM VOTING; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.

OPINION:

[*315] 1. Lehigh Valley Cooperative Farmers, Inc. (Lehigh), has filed a petition requesting amendment of section 91.501 of the Commission's rules "to provide eligibility * * * for persons engaged in providing a dairy inspection service" in the Special Industrial Radio Service. In the alternative, Lehigh seeks waiver of that rule to permit it to obtain radio facilities in the Special Industrial Radio Service to be used in connection with its dairy inspection service.

2. The petitioner is a cooperative of some 2,400 dairy farmers located in parts of Pennsylvania, New Jersey, Delaware, and Maryland, and is engaged primarily in the business of processing and distributing milk and in manufacturing dairy products. As such, Lehigh is not eligible for authorizations in the Special Industrial Radio Service. However, until recently, it offered livestock breeding service to its members, and in connection with that service -- an eligible activity under section 91.501(d)(3) of the Commission's rules -- it is authorized to operate a base and mobile system, including fixed relay facilities, in the vicinity of Allentown and Bethlehem, Pa. Petitioner has discontinued its breeding service but proposes a radio communications system to be used in connection with its dairy inspection service. The proposed new system would cover a larger area, a 75-mile radius of Allentown and Harrisburg, Pa., and Wilmington, Del. The frequencies proposed would be new, some of the locations of the existing facilities would be changed, and new base and relay facilities would be constructed.

3. The service provided by petitioner relates basically to periodic and immediate inspections of the following:

(1) A dairyman member's milk before it is loaded in tank trucks (if it appears that that such inspection is necessary); [*316] (2) A member's entire operation in the event that mastitis (inflammation of the mammary glands) is discovered in the morning milk; (3) Unannounced inspection of a member's total operation (two or three times a year). The obvious purpose of those inspections is to insure quantity production of high quality marketable milk.

4. In support of its petition, Lehigh cites the obvious public interest in insuring plentiful supplies of high quality milk and milk products, and argues that it needs a reliable radio system with which to direct the activities of its milk inspectors so that they can perform their functions more efficiently. The petitioner also argues that dairy inspection is closely related to dairy farming, and eligible activity in the Special Industrial Radio Service, and that it should be accommodated in the same service.

5. We have considered Lehigh's request for amendment and waiver of he rules but we have concluded that the petitioner has not made an adequate showing for either amendment or waiver of the rules. We recognize the importance of its dairy inspection service and the petitioner's need for adequate radio communications in connection therewith. We note, however, that petitioner and others like him are eligible in the Business Radio Service, so that the issue before us is not whether or not we should make radio facilities available to it. We note also that petitioner plans to establish almost a total new system and to use new frequencies, so that we are not faced with discontinuing an existing operation. The basic issue is whether petitioner and others like him should be permitted to use a frequency available in the Special Industrial Radio Service rather than a frequency allocated to the Business Radio Service.

6. Petitioner has not addressed itself to this issue adequately. Thus, petitioner has not presented any facts indicating the needs of the industry for a rather specialized communications service for use only to conduct dairy inspections, nor has it shown whatever those needs may be that they cannot be accommodated adequately in the Business Radio Service. Absent such showing we are unable to determine whether or not amendment of the rules as requested would be in the public interest. Furthermore, petitioner has not shown how dairy inspection differs in public-interest value from many of the activities which now must be accommodated in the Business Radio Service.

7. Similarly, Lehigh has not shown that its own need for an adequate communications system cannot be established in the Business Radio Service, nor has it shown what the impact of its proposed operation would have on existing Special Industrial users of the frequencies it proposes. Although it is generally recognized that the Business frequencies are crowded, our records show about 45 licensees in the Special Industrial Radio Service are authorized to operate on 47.68 Mc/s, the basic frequency petitioner proposes to use, in Pennsylvania, Delaware, New Jersey, and Maryland, most of which would be within interference range of the petitioner's proposed system.

8. Accordingly, we cannot find that the public interest would be served by the grant of the above-captioned petition and it is hereby Denied.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

DISSENTBY: JOHNSON

DISSENT:

[*317] DISSENTING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON

The FCC has today found, in full and solemn formality, that "livestock breeding" is a higher use of mobile radio than "dairy inspection."

The case illustrates, beyond the wildest imaginings of comics and critics, the absurdity of our present procedures and standards for allocating mobile radio frequencies.

Lehigh Valley Cooperative -- 2,400 dairy farmers in Pennsylvania, New Jersey, Delaware, and Maryland -- is typical of the users of the 5 million transmitters now serving our over-growing industrial economy. It would like to operate a radio-controlled "dairy inspection service" with frequencies in the Special Industrial Radio Service -- as it used to operate a radio-controlled "livestock breeding service."

Needless to say, we have regulations covering this matter. Section 91.501(d)(3) of our rules provides livestock breeding is an "eligible activity" for the Special Industrial Radio Service Frequencies. There is no provision in the rules for a "dairy inspection service." Accordingly, we suggest the applicant use the much more congested Business Radio Service.

What is the difference between these two activities?

Our opinion states that a "dairy inspection service" consists of "unannounced inspection of a member's total operation," and "periodic and immediate inspections" of "milk before it is loaded in tank trucks," and "a member's entire operation in the event that mastitis (inflammation of the mammary glands) is discovered in the morning milk." The opinion then, with beguiling delicacy, if ambiguity, leaves entirely to the reader's active urban imagination the details of the operation of a radio-controlled "livestock breeding service." "Call bulls," perhaps? Whatever the details, it is difficult for me to find the latter a "higher use" than the former and I would, therefore, grant the application.

I would also urge, once again, that we get on with the increasingly urgent business of formulating a rational and effective means for allocating frequencies among competing users, whether on economic or other grounds. See, Channel Splitting in the 450-470 Mc/s Band, 8 P&F Radio Reg. 2d 1629, 1633 (1967) (statement concurring in part and dissenting in part); 450-470 Mc/s Further Notice of Proposed Rulemaking, FCC 67-1075 (1967) (concurring opinion); Johnson, "Frequency Nonmanagement and 'The More Effective Use of Radio,'" Communications, March 1967.