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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 ) ) State of Florida ) ) Request for Waiver of the ) General Category Freeze ) ORDER Adopted: July 31, 1997 Released: July 31, 1997 By the Acting Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1.In this Order, we address requests by the State of Florida ("Florida") for waiver of the General Category freeze imposed by a Wireless Telecommunications Bureau ("Bureau") Order (Freeze Order). On August 7, 1996, Florida asked that the Freeze Order be waived (August Waiver Request) to allow consideration of its application File Number D02612 for modification of Station WNAY604, which comprises part of Florida's 800 MHz trunked radio system. On September 9, 1996, Florida filed a more generalized request (September Waiver Request) that any applications for new or modified stations involving any of the twenty General Category trunked channels for which it is currently licensed, as well as its state-wide mutual aid use General Category channel, be exempt from the Freeze Order. Florida seeks this general waiver in order to facilitate the construction of a state-wide 800 MHz public safety communications system. This Order grants Florida's September Waiver Request for a waiver of the Freeze Order and permits the processing of applications filed by Florida (and by all public safety entities using the mutual aid channel (853.3874 MHz)) for new stations or station modifications involving any of its currently licensed twenty-one General Category channels. Grant of this waiver will provide increased safety to the citizens of Florida and is consistent with the Commission's goal of promoting efficient and effective public safety communications. II. BACKGROUND 2.In 1994, the Commission undertook a rulemaking proceeding (PR Docket No. 93- 144) proposing a new licensing framework for Specialized Mobile Radio (SMR) systems in the 800 MHz band. In the context of that proceeding, the Commission proposed revising its eligibility rules for General Category channels to prohibit SMR and non-SMR applicants from applying for the same channels in the future. In this action, the Commission sought comment on how to structure competitive bidding procedures to choose among mutually exclusive initial SMR applications proposing operations in the Commercial Mobile Radio Services. After release of the Notice, there was a steep rise in the requests by SMR applicants and licensees for General Category channels. Consequently, on October 4, 1995, the Bureau placed the freeze that is at issue today on the filing of new applications for General Category channels to ensure that the successful resolution of the spectrum allocation issues raised in PR Docket No. 93-144 would not be compromised. The Commission subsequently adopted the 800 MHz First Report and Order in PR Docket No. 93-144, which reallocated the General Category channels, consisting of 150 contiguous 25 kHz channels, exclusively to the 800 MHz SMR service whereby mutually exclusive initial applications would be subject to competitive bidding. In the 800 MHz SMR MO&O, however, the Commission reversed its decision concerning eligibility, reinstating the eligibility of private applicants for the General Category channels. In addition, the Commission partially lifted the freeze on General Category channels to permit potential Economic Area ("EA") applicants to relocate incumbents out of the upper 10 megahertz block of 800 MHz spectrum to the General Category Channels. Other than for purposes of this type of relocation, however, the Commission decided to maintain the freeze so as not to frustrate its efforts regarding future licensing of General Category channels. III. DISCUSSION 3.Florida states that it is building a state-wide 800 MHz radio communications system to serve the communications needs of at least 12 state agencies at a projected cost of over 300 million dollars. Florida's proposed radio system is designed to employ 51 channels in a digital trunked mode, 21 of which are General Category channels and 30 of which are from the 800 MHz Public Safety National Plan. Florida notes that it has spent over a decade and approximately 37 million dollars toward developing this radio system. According to Florida, the project is currently in the second of five phases, and the total cost of the complete project is expected to exceed 336 million dollars. 4.Florida argues that, in this particular instance, the rationale underlying the Freeze Order would not be undermined given that the "footprint" of Florida's radio system has been "statewide" since its inception, and it is already licensed for 21 General Category channels at numerous locations throughout the state, including a license for state-wide operation on its mutual aid channel. Florida states that in order for it to be able to accommodate many users, it needs the flexibility to license new station locations and to manage changes in license assignments on all of its 21 General Category channels in the state. It requests that applications for new or modified stations proposing operation on any of these 21 General Category channels be exempt from the Bureau's freeze, and that these channels not be auctioned for other uses within the state. As for stations operating on these General Category channels near the state border, Florida requests that it be allowed to provide up to a 40 dBu signal along a line parallel to and three (3) miles beyond its border. We note, however, that Florida provides no explanation in support of this last aspect of its request. 5.The Association of Public-Safety Communications Officials-International, Inc. ("APCO"), the Personal Communications Industry Association ("PCIA"), and the City of Coral Gables, Florida, filed comments supporting Florida's September Waiver Request, as spectrum- efficient and in the best interest of the public. The American Mobile Telecommunications Association, Inc. ("AMTA") contends, however, that Florida should be permitted to redeploy already authorized frequencies only if it can demonstrate that it is the only entity that would be permitted to use the channels in the proposed geographic area. Unless such a showing is made, AMTA states that it does not support Florida's request for a state-wide geographic license on these channels. In its Reply Comments, Florida acknowledges that it seeks to license stations in areas of the state in which it may be technically possible for another entity to construct a co- channel station based on the Commission's interference criteria, but states that such areas are isolated and few and are not located in the state's more populated regions. Moreover, Florida states that in view of its comprehensive system, which is comprised of numerous stations throughout the state, channels would not be usable in any practical sense by other licensees. 6.The Commission has expressed its ongoing commitment to improving public safety communications and ensuring the availability of sufficient spectrum to meet public safety needs in several recent rule makings. One of the critical goals of the Commission's current efforts is to better meet the spectrum needs of state and local public safety agencies. In its efforts to study public safety spectrum needs and develop a plan that ensures that adequate frequencies are available for public safety uses through the year 2010, the Commission, jointly with the National Telecommunications and Information Administration, established the Public Safety Wireless Advisory Committee (PSWAC) to provide advice and recommendations on the various current and future requirements of public safety agencies. The PSWAC's Final Report, among other things, concluded that there should be more shared and joint use systems developed and more spectrally-efficient radio systems projects deployed on the state and regional level. Florida's plan, through implementation of its 800 MHz state-wide radio system, serves such a function. 7.It is against this backdrop that we evaluate Florida's September Waiver Request of the Freeze Order. To obtain a waiver of the Commission's Rules, a petitioner must demonstrate that its circumstances are unique and that no reasonable alternative exists within our Rules. In addition, grant of the waiver request must serve the public interest. We conclude that Florida has met this burden. First, Florida was a pioneer in conceiving a digital state-wide system that permits several agencies to connect to a common system. We are aware of no other system, either developed or in the planning stages of development, comparable to the monumental proportions of Florida's 800 MHz radio system. Further, if the Commission did not grant this request, then Florida would have to reduce the size and scope of its system, as there are no other available frequencies of which it could avail itself. Florida also states that the Freeze Order, by not allowing the General Category channels to be used in any location other than where they are already licensed, disables a specialized computer program developed specifically to effectively manage changes in channel assignments, on a dynamic basis. This would be contradictory to the Commission's efforts to serve the immediate and future needs of the public safety community, and, therefore, grant of its request serves the public interest. Second, we believe that it is reasonable that Florida seek this general waiver rather than requesting individual waivers of the Freeze Order. Third, we agree that Florida's requested approach is less administratively burdensome for both the Commission and Florida. 8.Moreover, granting Florida's request to file applications for new stations and to modify existing stations on any of its 21 General Category channels will not frustrate the underlying purpose of the Freeze Order, i.e., to preserve the current licensing landscape of General Category channels and avoid compromising the successful resolution of the spectrum allocation issues raised in PR Docket No. 93-144. The Bureau's review of Florida's various existing station site locations indicates that these 21 General Category channels cannot be licensed in a significant portion of the state, including the most populated areas of the state. Consequently, we believe that these channels provide little in terms of relocation possibilities for EA licensees in Florida seeking to relocate incumbents from the upper 200 SMR channels. 9.While we find that grant of Florida's September Waiver Request serves the public interest, we reject the requests of PCIA and the City of Coral Gables to extend this action to all 800 MHz General Category licensees or all public safety eligibles. Specifically, PCIA advocates that the Commission open a "license modification only" filing window to permit Florida, as well as other 800 MHz General Category licensees, to modify their licenses. PCIA contends that Florida's needs are not unique and that all legitimate 800 MHz General Category licensees should be permitted to modify their systems. The City of Coral Gables requests that the Bureau issue a blanket waiver of general applicability excepting all public safety eligibles from the Freeze Order. Because such actions would undermine the issues discussed in PP Docket 93- 253, we reject PCIA's proposal and decline to act on the request of the City of Coral Gables. 10.Last, regarding the border areas of Georgia and Alabama, Florida asked that it be allowed to provide up to a 40 dBu signal along a line parallel to and three (3) miles beyond its border. We will require that Florida comply with current Commission practices, which state that 40 dBu is an appropriate measure for the signal level necessary to provide sufficient protection from interference. However, we deny Florida's request that it be allowed to operate its signal level 3 miles beyond its border because Florida, as previously mentioned, has failed to demonstrate that such additional relief is warranted. IV. CONCLUSION 11.For the reasons discussed herein, we conclude that grant of Florida's September Waiver Request is warranted and furthers the public interest. Florida has uniquely addressed its public safety communications needs and we anticipate that the citizens of Florida will benefit greatly from this novel and complex state-wide 800 MHz radio system. V. ORDERING CLAUSES 12.Accordingly, IT IS ORDERED that the Request for Waiver filed by the State of Florida IS GRANTED to the extent stated herein. As a result, we will now process applications for General Category channel 96 filed by the State of Florida and by all other public safety eligibles within the state, and for channels 114 through 133 filed by the State of Florida, to the extent they seek to modify existing systems or seek to construct and operate at new station locations. This encompasses applications under call sign WNAY604, to the extent they seek to modify existing systems or seek to construct and operate at new station locations, such as at Fort Lauderdale, Sunrise, and Coconut Creek, Florida, for these subject channels which already are occupied by Florida. 13. Authority for issuance of this order is contained in Section 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 303(r) and pursuant to authority delegated by Section 0.331 of the Commission's Rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Acting Chief, Wireless Telecommunications Bureau