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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 SOUTH CAROLINA ) and ) SCANA COMMUNICATIONS, INC. ) ) Requests for Waiver of the Commission's ) Rules ) ORDER Adopted: September 30, 1997 Released: September 30, 1997 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION & EXECUTIVE SUMMARY 1. On January 11, 1996, the State of South Carolina and SCANA Communications, Inc. (the State and SCI, respectively, SC/SCI, jointly), filed a joint request for waiver of Section 90.179 of the Commission's Rules, 47 C.F.R.  90.179, and certain regulations pertaining to eligibility in the Private Mobile Radio Services (PMRS). SC/SCI contend that the purpose of this waiver is to permit eligibles in the Public Safety Radio Services, the Special Emergency Radio Service (SERS), and the Power Radio Service to operate and utilize an 800 MHz radio system on a shared basis. On November 1, 1996, SC/SCI filed a supplement to the Waiver Request. On January 9, 1997, Stalvey Communications (Stalvey), a Specialized Mobile Radio (SMR) Service licensee operating in South Carolina, filed an opposition to the Waiver Request, to which SC/SCI replied on January 23, 1997. On July 16, 1997, the Public Safety and Private Wireless Division, Policy and Rules Branch, requested additional information regarding the particular stations and licensees to which the requested waiver would apply, which SC/SCI provided on July 24, 1997. Stalvey supplemented its opposition on July 31, 1997. Both the State and SCI replied separately to Stalvey's supplement on August 12, 1997. II. BACKGROUND 2. PMRS frequencies in the 806-821/851-866 MHz bands (the 800 MHz band) are divided into five "categories," or "pools." These categories are: (1) SMR, (2) Public Safety, (3) Business (BRS), (4) Industrial/Land Transportation (I/LT), and (5) General. As a general matter, entities are licensed on frequencies in the categories for which they meet the eligibility criteria. Pursuant to Section 90.621(e) of the Commission's Rules, however, entities eligible for licenses in the 800 MHz band, such as Public Safety, I/LT, or BRS entities, may seek to be licensed on frequencies in another category if there are no frequencies available in their own category, provided that the frequency coordinator for the entity's assigned category verifies that no such frequencies are available and the entity operates by the rules governing the category to which the frequency is allocated. Permitting a licensee's use of frequencies outside a category for which it is eligible is referred to as inter-category sharing. Section 90.179(a) of the Commission's Rules provides that a licensee may share its PMRS station only with users that would be eligible for separate authorization to use those frequencies; thus the State and SCI seek waiver of that rule to implement their proposal. 3. SCANA Corporation (SCANA) is the parent company of SCI and of South Carolina Electric & Gas Company (SCE&G), the largest electric utility in South Carolina. SCI currently operates a trunked land mobile radio system comprised of twenty repeater sites providing communications capabilities to government agencies, public safety entities, and utilities over a large geographical area of South Carolina. The system is operated on I/LT frequencies licensed to SCI and SCE&G, and on Public Safety and SERS frequencies licensed to the State and the Counties of Lexington, Richland, and Spartanburg. Because some sites on the SCI network use only I/LT or only Public Safety and SERS frequencies, Section 90.179 of the Commission's Rules prevents system users that are not eligible for separate authorization on those frequencies from using those sites. 4. SC/SCI intend to expand the SCI network into a state-wide 800 MHz communications system comprised of facilities licensed to the State of South Carolina and other Part 90 eligibles, including SCI. Specifically, SCI would provide infrastructure (equipment, towers, etc.) and I/LT frequencies, and the State (and perhaps local governments) would provide infrastructure and Public Safety and SERS frequencies. The system would be available to Public Safety, SERS, and Power Radio eligibles (including but not limited to SCE&G), on a non-profit, cost shared basis. 5. In support of the Waiver Request, SC/SCI state that many public safety agencies in South Carolina rely on outdated communications technology, and they do not have access to a state- wide wireless communications system. Moreover, SC/SCI assert that most State and local public safety agencies are unable to communicate with each other on their respective wireless systems, making it difficult to coordinate public safety responses to natural disasters affecting multiple jurisdictions, such as hurricanes and tornadoes. SC/SCI further submit that public safety agencies need to communicate and coordinate with utility companies during such emergencies, and that wireless communications are particularly important in such situations because severe weather can incapacitate wireline communications systems. SC/SCI assert that constructing a modern state- wide wireless communications system would cost over forty million dollars, and that neither the State nor its local governments have such resources. III. DECISION 6. To obtain a waiver of the Commission's Part 90 Rules, a petitioner must demonstrate that its circumstances are unique, that good cause exists to justify the requested relief, and that there is no reasonable solution within the existing rules. SC/SCI has met this burden, thus warranting grant of its request for waiver of Section 90.179(a) of the Commission's Rules. Our basis for this determination is set forth below. 7. Unique Circumstances. SC/SCI has met the first criterion for waiver, by demonstrating that its case presents unique circumstances given the public safety/public service nature of their proposal and the envisioned wide-area scope of the project. The proposed system will cover the entire state, including rural areas that currently have limited public safety communications coverage and where wireless communications are particularly important due to the distances that must be covered and the relative scarceness of wireline communications facilities. Denial of the waiver, on the other hand, would possibly undermine efforts underway at the federal level and in the public safety community to promote wide-area shared systems that facilitate interoperability and system flexibility. 8. Good Cause. In its efforts to study public safety spectrum needs and develop a plan that ensures that adequate frequencies are available for public safety uses, 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 current and future requirements of Public Safety agencies. The PSWAC Final Report concluded, among other things, that there should be more shared and joint use systems developed, including federal/non-federal sharing, and that more spectrally efficient radio projects should be deployed on the state and regional levels. This Waiver Request gives us an opportunity to further such objectives and address an aspect of a particular public safety need. 9. The proposal would provide the public safety entities of South Carolina the ability to obtain wide-area coverage without incurring, in this time of limited government resources (especially for smaller, rural governmental entities), the expense of constructing an entire wide-area backbone system. Grant of the waiver also would allow entities providing police, fire, medical, and other public safety services in South Carolina--large and small, state and local--to communicate with one another and with utility companies, both on a day-to-day basis and during emergencies. The Wireless Telecommunications Bureau (Bureau) recently noted the need for such interoperability when it granted a similar request to allow a utility to share its system with Public Safety eligibles. It also is significant that the non-public safety entities will be contributing spectrum sufficient for their purposes, so the system will not result in a net loss of public safety spectrum. The essential and critical nature of public safety transmissions provides the necessary justification for waiver. In summary, SC/SCI has demonstrated good cause to allow Public Safety and SERS eligibles to use the SCI network's I/LT frequencies, and to allow Power Radio eligibles to use the network's Public Safety and SERS frequencies. 10. Moreover, in the Balanced Budget Act of 1997 (Balanced Budget Act) the U.S. Congress recognized the importance of providing spectrum to meet critical public safety needs. For example, the Balanced Budget Act requires the Commission to waive relevant provisions of law (excluding regulations regarding harmful interference) in order to permit unassigned frequencies to be used for the provision of public safety services, provided that (a) no other public safety spectrum is immediately available for the requested use, (b) the requested use is technically feasible, (c) the requested use is consistent with other allocations for such services in the same geographic area, (d) the unassigned frequency was allocated for its present use at least two years prior to the date the application is granted, and (e) granting the application is consistent with the public interest. Thus, we conclude that granting SC/SCI's request is consistent with the provisions of the Balanced Budget Act. 11. Lack of Reasonable Alternatives. Finally, there is no reasonable alternative within the rules. Public safety agencies and public service providers have special communications requirements, including, among other things, (1) dedicated capacity and/or priority access available at all times (and in sufficient amounts) to handle unexpected emergencies[;] (2) highly reliable (redundant) networks which are engineered and maintained to withstand natural disasters and other emergencies; (3) ubiquitous coverage within a given geographical area; (4) and unique terminal equipment (mobile or portable units) designed for quick response in emergency situations. According to SC/SCI, no commercial or other private system in South Carolina offers them the same range, reliability, capacity, and control as the proposed network. Public safety and public service entities that need technically advanced, wide-area communications services, but lack access to spectrum and cannot afford systems that would provide the same benefits as the proposed system (or have more pressing needs), have no reasonable alternative to the proposed system. 12. Stalvey Opposition. In opposing the waiver request, Stalvey argues that the goals of the requested waiver would be better served by using SMR providers. SC/SCI, however, represent that no South Carolina SMR operator offers comparable services. Based on the record in this proceeding, we conclude that no other commercial or other private system in the state offers facilities comparable to the proposed network. The proposed system will cover the entire state and will be specially designed to meet the unique reliability, capacity, and control needs of Public Safety, SERS, and Power Radio eligibles who do not currently use SMR services; these eligibles are not and would not be, under current circumstances, substituting SMR service for the services the proposed system will offer. Thus, the proposed system does not compete with and should not harm SMR operators. 13. Stalvey also argues that the request should be denied because SCANA has violated numerous provisions of the Commission's Rules. The Bureau's Enforcement Division is currently investigating instances of alleged misconduct involving SCANA (including allegations that SCANA and/or its subsidiaries filed false loading data and used so-called "strawpersons" to obtain SMR licenses to which it was not otherwise entitled, and operated not-for-profit licensed facilities on a for- profit basis), but the pendency of that investigation should not preclude action on the joint waiver request, which will benefit the public substantially. Instead, the waiver shall be conditioned on the outcome of the investigation. Finally, Stalvey argues that the waiver should be denied because the State has improperly coerced local public safety agencies into using the SCI network instead of SMR services. The State denies these allegations, and we find there is not sufficient evidence in the record to support these allegations. IV. CONCLUSION 14. This Order grants the request of SC/SCI for a waiver of Section 90.179 of the Commission's Rules to permit the construction and operation of a shared network on Public Safety, I/LT, and BRS frequencies, to be used by Public Safety, SERS, and Power Radio eligibles on a non- profit, cost shared basis. The action taken herein is consistent with and furthers the public interest goals of the Balanced Budget Act. Specifically, this Order grants a waiver of Section 90.179 to permit SCI and SCE&G to share their I/LT and BRS frequencies in the SCI network with Public Safety and SERS eligibles on a non-profit basis, and to permit Public Safety licensees to share their Public Safety and SERS frequencies in the SCI network with Power Radio eligibles on a non-profit basis. The waiver applies to stations that are operating on these 800 MHz frequencies that are part of the SC/SCI and SCE&G state-wide PMRS system. Because Tim Jones has not requested a waiver, this Order does not apply to the frequencies licensed to him. Moreover, this Order does not permit SCI or SCE&G to share its frequencies with any non-eligible except Public Safety and SERS eligibles. In other words, absent a separate waiver, eligibles in the BRS cannot access I/LT frequencies unless they are also eligible for I/LT spectrum. The action taken herein serves the public interest in that it will provide improved opportunities for communications by public safety and public service entities. V. ORDERING CLAUSES 15. IT IS ORDERED that pursuant to 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 90.179 of the Commission's Rules, 47 C.F.R.  90.179, the Waiver of Section 90.179 requested by the State of South Carolina and SCANA Communications, Inc., is GRANTED to the extent indicated above; and that the waiver is CONDITIONED upon the outcome of the current Wireless Telecommunications Bureau investigation into the conduct of SCANA Corporation and its subsidiaries. 16. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331. 17. For further information contact Scot Stone, Public Safety and Private Wireless Division, at (202) 418-0680. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Chief, Wireless Telecommunications Bureau j:\prd\00scana.v04 9-30-97