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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 Applications of ) ) STATE OF NEW HAMPSHIRE ) ) and ) ) File Nos. 27047-CD-P/L-94 McCormick & Jacobson ) 27361-CD-P/L-93 ) 29080-CD-P/L-93 For Facilities in the Public Land Mobile ) Service and Private Land Mobile Radio ) Service at Various Locations in the ) State of New Hampshire and Windsor, ) Vermont ) MEMORANDUM OPINION AND ORDER Adopted: March 5, 1999 Released: March 5, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By this Memorandum Opinion and Order we dismiss various pleadings filed by the State of New Hampshire (New Hampshire) and McCormick & Jacobson (M&J) as jointly requested, pursuant to a Settlement Agreement submitted to the Commission on January 21, 1999. In addition, we conditionally grant the following applications by New Hampshire and M&J, as amended in association with the Settlement Agreement: (a) New Hampshire's above-captioned application, as amended (New Hampshire Amendment); and (b) M&J's pending Public Land Mobile Service (PLMS) applications in West Lebanon, NH (West Lebanon Amendment) and Littleton, NH (Littleton Amendment), as amended. We also conditionally grant New Hampshire's application for a new Part 90 Private Land Mobile Radio (PLMR) authorization (Part 90 Application). Finally, we deny M&J's application for a new facility in Chester, NH (Chester Application). II. BACKGROUND 2. On July 22, 1993, New Hampshire filed an application accompanied by a waiver request for authority under Part 22 of the Commission's Rules seeking to create and operate a state-wide, multi-agency telecommunications system in the 150 MHz VHF band for governmental and public safety purposes. New Hampshire proposed to operate its system on frequencies allocated for Part 22 PLMS operations at various sites throughout the State of New Hampshire and at Windsor, Vermont. The system would be used on an inter- agency basis by New Hampshire's Departments of Safety, Transportation, Fish and Game, and Revenue and Economic Development, by the Office of Emergency Management, and by the New Hampshire Executive Branch. New Hampshire proposed to operate its system as a private, noncommercial facility in the same fashion as the PLMR systems generally governed by Part 90 of the Commission's Rules. In order to use this Part 22 spectrum as proposed, New Hampshire requested waivers of the following Rules, which were effective when it filed its application: 47 C.F.R.  22.16(b)(2) (requested channels considered new if proposed area and type of service are not substantially identical); 22.43(a)(2) (1-year construction period); 22.309(b) (intent to provide service to the public versus private use); 22.501(b) (listing of frequencies in band divided into 30 kHz channels), and 22.516(a)(2) (traffic loading study required for request for multiple frequencies for existing two-way station). In support of its waiver request, New Hampshire contended that: (a) it had a critical need for VHF frequencies due to New Hampshire's diverse and difficult terrain and high level of forestation; (b) there were no VHF frequencies available under Part 90; (c) the requested Part 22 frequencies were available because of a discontinuation of pre-cellular radiotelephone service by New England Telephone and Telegraph Company, and further due to lack of interest in such frequencies by commercial entities; and (d) the Commission's "spectrum refarming" proceeding would not meet its communications needs in a timely manner. 3. On July 26, 1993, M&J filed two applications for PLMS common carrier mobile and paging services. On July 28, 1993, New Hampshire's waiver request and associated license application were placed on public notice. On August 11, 1993, M&J's two applications were placed on public notice. M&J filed a third application on September 27, 1993. On October 10, 1993, M&J's third application was placed on public notice. Subsequently, M&J's applications were declared to be competing and mutually exclusive with New Hampshire's application. 4. On May 3, 1996, the Wireless Telecommunications Bureau (Bureau) denied New Hampshire's waiver request. The Bureau found that New Hampshire had not met the requirements of Section 22.119 of the Commission's Rules. Specifically, New Hampshire did not show that (a) a grant of the waiver would serve and not frustrate the underlying purposes of the Commission's Rules and would be in the public interest, or (b) unique and unusual circumstances existed that would render application of the Rules inequitable, unduly burdensome, or otherwise contrary to the public interest, and that no reasonable alternative solutions were available under the existing Rules, as required by then-existing Section 22.119 of the Commission's Rules. The Bureau found unconvincing New Hampshire's primary argument that there was no commercial interest in the frequencies at issue. The Bureau also found that New Hampshire's mountainous topography and high forestation, the technical limitations of other bands allocated for Part 90 PLMR operations with available frequencies, and the additional cost that might result from constructing a system using such alternative frequencies did not either constitute unique or unusual circumstances or establish the absence of reasonable alternatives. As a result, the Bureau concluded that New Hampshire had not demonstrated that waiver of Section 22.309(b) of the Commission's Rules, which required the licensee to provide service to the public rather than privately, was warranted. 5. On June 3, 1996, New Hampshire filed an Application for Review, seeking review of the Bureau Order. While New Hampshire's Application for Review was pending, Congress enacted Section 337 of the Communications Act of 1934. Thereafter, New Hampshire filed an ex parte pleading (Section 337 pleading) asserting that Section 337 of the Communications Act required the Commission to grant its Application for Review and, on that ground, urging that we do so. 6. Settlement Agreement. On January 21, 1999, M&J and New Hampshire filed the Settlement Agreement, and various attachments, which include amendments to their pending applications, applications for new channel assignments, and rule waiver requests. Specifically, the Settlement Agreement stipulates that M&J will amend its pending application for authorization to operate on the 152.51 MHz channel in Littleton, NH, and its pending application for authorization to operate on the 152.63 MHz channel at West Lebanon, NH, to delete the requested frequencies and apply for 152.69 MHz. In return, New Hampshire will amend its application to delete its request for the 152.69 MHz frequency, and apply for non-conflicting PLMS and PLMR frequencies. If the agreement is implemented, and the pertinent applications are granted, the parties will dismiss all their pending adverse pleadings in the instant matter. 7. M&J's Filings and Waiver Request. M&J submitted amendments to its pending Littleton application to change the frequency from 152.51 MHz to 152.69 MHz, and its West Lebanon application to change the frequency from 152.63 MHz to 152.69 MHz. Section 1.929(a)(6) of the Commission's Rules states that amendments to pending applications that request change of frequency, such as the Littleton and West Lebanon Amendments, are major amendments. M&J contends that the amendments should be considered "minor," pursuant to former Section 22.23(g)(2) of the Commission's Rules. Alternatively, M&J requests waiver of the "freeze" on new paging frequency applications, in order to grant the Amendments. M&J also submitted the Chester Application, seeking authorization to operate on the 152.69 MHz channel at Chester, NH. M&J requested waiver of the paging freeze so that the Chester Application may be granted. 8. New Hampshire's Filings. New Hampshire submitted the Part 22 Amendment, modifying the above-captioned application to revise the proposed site locations on the 152.51 MHz and 152.63 MHz channels, and withdrawing its request for authorization on the 152.69 MHz frequency. The site location revisions result in an extension of New Hampshire's coverage contour. Section 1.929(c)(1) of the Commission's Rules states that extension of an applicant's composite interference contour is a major amendment. New Hampshire also submitted the Part 90 Application, requesting authority to operate on four paired channels in the 151 MHz and 161 MHz bands. These channels are in the Industrial/Business pool. As a public safety entity, the New Hampshire is ineligible to apply for these frequencies, absent a rule waiver. 9. New Hampshire's Reconfigured System and Waiver Request. Attached to the Part 22 Amendment and Part 90 Application is a Public Interest Statement/Rule Waiver Request (Waiver Request), wherein New Hampshire requests waivers of certain Commission rules to obtain the grants. New Hampshire claims that, in an effort to resolve the mutual exclusivity problem, it revised its proposed system configuration by modifying its proposed transmitter locations, deleting its request for the 152.69 MHz channel, and requesting some new PLMR frequencies, which permitted it to execute the Settlement Agreement with M&J. New Hampshire contends that grant of the Part 22 Amendment and Part 90 Application are necessary to implement the revised system. Specifically, New Hampshire plans to change its proposed public safety system to operate at fourteen sites, with a single frequency assignment at each site, as opposed to its original plan to seek twenty-eight channel assignments at eight sites. New Hampshire plans to use the requested Part 22 frequencies at eight locations, while the other six locations will be served by the Part 90 frequencies. The newly proposed system is a state-wide, digital, trunked, integrated voice/data system, utilizing 12.5 kilohertz bandwidth. 10. Part 22 Waivers. New Hampshire claims that the requested Part 22 VHF channels are necessary because: (a) they are paired channels, necessary for trunking; (b) due to the heavy forestation and mountainous areas, channels in the higher frequency range would require more stations to obtain statewide coverage; (c) the additional stations, necessitated by the use of higher frequencies, would cost more than twice as much as a VHF system; (d) New Hampshire has already spent a significant amount of its appropriation to upgrade its VHF system; and (e) the additional stations would have to be sited on park lands, in areas that have no roads or electricity service. New Hampshire requests waivers of the following Part 22 Rules: (1) Section 22.103 (now Section 1.917), which requires that an applicant intend to provide service to subscribers (as a public safety entity, New Hampshire will not be providing service to the public); and (2) Section 22.501(b) (now Section 22.561), stating that the subject VHF channels have a 20 kilohertz bandwidth (the proposed system will utilize channels with 12.5 kilohertz bandwidth). New Hampshire also requests waiver of the paging application "freeze," arguing that its revised station locations will result in a minimal extension of coverage, and that operations at those locations will not cause harmful interference to other parties. 11. Part 90 Waiver Request. New Hampshire argues that it requires the requested Industrial/Business channels because: (a) the VHF public safety frequencies, for which it is eligible, are clustered at 154-155 MHz, and therefore do not have the necessary separation to protect against harmful interference; and (b) the requested channels, though non-paired, can be coordinated to provide trunking service, and have enough separation to satisfy New Hampshire's protection criteria. Accordingly, New Hampshire requests waiver of Section 90.35(a) and former rule 90.91(a), which restrict the eligibility for the requested Industrial/Business frequencies. As a public safety entity, New Hampshire is ineligible to apply for these frequencies, absent a rule waiver. III. DISCUSSION 12. To obtain a waiver of the Commission's Rules, a petitioner must show: (a) that the underlying purpose of the rule would not be served or would be frustrated by its application in the instant case, and that grant of the waiver would be in the public interest; or (b) that unusual or unique circumstances exist, so that application of the rule would be inequitable, unduly burdensome, or contrary to the public interest, or that the petitioner has no reasonable alternative. Additionally, the Commission may, on its own motion, waive any provision of the Rules if good cause therefor is shown. Due to the unique circumstances in this case, we find that waiver of certain Commission Rules is warranted. 13. As stated above, Section 1.929 of the Commission's Rules classifies amendments to pending applications that request any extension of the composite interference contour, or that change a requested channel, as "major." Major amendments to pending applications are generally treated as "initial applications," which may open a new comment window pursuant to Section 309 of the Communications Act and be subject to competitive bidding. Accordingly, New Hampshire's Part 22 Amendment and M&J's Amendments are classified as "new applications." Without a waiver of the interim rules, these applications are subject to the paging "freeze." 14. Section 22.123 of the Commission's Rules was implemented pursuant to the Part 22 Rewrite Order. The main purpose of Section 22.123 of the Commission's Rules is to explain the basis upon which applications and amendments thereto are classified, pursuant to Section 309 of the Communications Act of 1934, as amended. Subsection 309(g) authorizes the Commission to "adopt reasonable classifications of applications and amendments in order to effectuate the purposes of" Section 309 (which principally concern public notice and opportunity to file petitions to deny). Accordingly, amendments are classified as "major" in order to permit interested parties the opportunity to comment on a proposed service. 15. We note that both M&J's and New Hampshire's underlying applications have already been placed on public notice, and that the public has been given the opportunity to file petitions to deny. New Hampshire's pending application proposed state-wide coverage on the frequencies 152.51 MHz, 152.63 MHz and 152.69 MHz, with transmitters that would provide coverage to virtually every corner of the state of New Hampshire. New Hampshire's newly proposed operations are mostly within the scope of its original application. Additionally, M&J's Amendments, which propose a change of frequency to 152.69 MHz, are within the interference contour of New Hampshire's originally proposed operations on 152.69 MHz, as well as M&J's original filing for the 152.69 MHz channel in Windsor, VT. Under the unusual circumstances of this case, where the original applications encompassed nearly state-wide coverage, the public has been given a chance to comment on the originally proposed operations of New Hampshire and M&J, and the newly proposed operations of both parties, taken together, expand only insignificantly on the broad scope of the original applications, we conclude that the rationale underlying Section 22.123, and the succeeding Section 1.929, would not be undermined by a waiver of that rule. 16. We also conclude that, as further required under the fist alternative standard of Section 1.925(b), a waiver in this case would be in the public interest. We have an ongoing commitment to ensure that public safety agencies have sufficient spectrum to meet public safety needs. This commitment includes the important goal of meeting the spectrum needs of state and local public safety agencies. Waiver of the pertinent rules will permit New Hampshire to construct a state-wide VHF public safety communications system that will provide increased safety to the citizens of New Hampshire, consistent with our goal of promoting efficient and effective public safety communications at the state and local level. If we did not grant the required authorizations, New Hampshire would not be able to operate its system in a rapid and efficient manner, as there are no other suitable frequencies of which it could avail itself. 17. Moreover, adoption of the Settlement Agreement and grant of the associated applications comports with our long-standing policy of encouraging settlement of conflicts between mutually exclusive applicants in order to speed service to the public and avoid unnecessary legal expenses. Accordingly, our actions will serve the public interest by terminating a long-running litigation proceeding, and promoting the rapid implementation of new communications services. Because implementation of the Settlement Agreement is a precondition to M&J's withdrawal of its objections to the New Hampshire Application, we find that it is in the public interest to waive our rules with respect to M&J's Littleton and West Lebanon Applications, as well as the New Hampshire Application. 18. Due to the unique circumstances in this case, and the public interest concerns, as stated above, we, on our own motion, waive 47 C.F.R  1.929 to the extent necessary to classify New Hampshire's Part 22 Amendment, and M&J's Littleton and West Lebanon Amendments, as minor amendments to pending applications, not subject to the paging application "freeze." We also waive the following rules to the extent necessary to approve the Settlement Agreement, and to grant the New Hampshire Amendment, the Littleton and West Lebanon Amendments, and the Part 90 Application: 47 C.F.R.  1.917, 47 C.F.R.  22.561, and 47 C.F.R.  90.35(a). We will waive Section 1.917 because the nature of New Hampshire's proposed inter- agency system does not permit the provision of third-party, common carrier communications, and New Hampshire cannot use alternative frequencies. Similarly, we will waive Section 22.561 because New Hampshire cannot use available 12.5 kHz channels, and utilization of "part" of the requested Part 22 channels will cause no harm to co-channel users. Section 90.35(a) will be waived because the requested Part 90 channels have the necessary qualities that will permit New Hampshire to operate its trunked network, and protect against harmful interference. Moreover, these channels have been recommended by a frequency coordinator, as required by our rules. 19. We note that M&J's Littleton and West Lebanon Amendments do not contain antenna structure registration numbers as required by Section 22.115(a)(2) of the Commission's Rules. The antenna structure registration rules were promulgated pursuant to Section 303(q) of the Communications Act, 47 U.S.C.  303(q), in order to ensure the safety of aircraft navigation. Accordingly, we condition the grant of M&J's Amendments on M&J submitting proof of antenna registration of the Littleton and West Lebanon sites. We further note that because the proposed operations of New Hampshire and M&J will be conducted along the Canadian Border, grant of New Hampshire's Part 22 Amendment and Part 90 Application and M&J's Littleton and West Lebanon Amendments are conditioned on coordination with, and approval by, the Canadian Department of Communication. 20. We deny, however, M&J's Chester Application. The Chester Application is not essential to resolving mutual exclusivity between the parties, and is not instrumental in the implementation of New Hampshire's public safety system. Accordingly, the Chester Application is strictly an application for new paging facilities and it is not classified as an amendment to any of the subject pending applications. As such, it is subject to the paging application "freeze," and will be dismissed. IV. CONCLUSION AND ORDERING CLAUSES 21. For the reasons discussed herein, and pursuant to Section 1.925 of the Commission's Rules, 47 C.F.R.  1.925, the Settlement Agreement filed by the State of New Hampshire and McCormick & Jacobson on January 21, 1999 is hereby approved. Additionally, we conclude that grant of the requests for waiver submitted by the State of New Hampshire and McCormick & Jacobson pursuant to the Settlement Agreement, as well as waiver, on our motion, of Section 1.929 of the Commission's Rules, 47 C.F.R.  1.929, are warranted and will serve the public interest. 22. Accordingly, it is ORDERED pursuant to Section 1.925 of the Commission's Rules, 47 C.F.R.  1.925, that the Requests for Waiver filed by the State of New Hampshire and McCormick & Jacobson filed on January 21, 1999, are GRANTED to the extent stated herein. The following sections of the Commission's Rules are hereby waived, to the extent stated herein: 47 C.F.R.  1.917; 22.561; and 90.35(a). 23. It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154 and 309, and Section 1.945(b) of the Commission's Rules, 47 C.F.R.  1.945(b), that Section 1.929 of the Commission's Rules, 47 C.F.R.  1.929, is WAIVED, to the extent stated herein. 24. It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309, and Section 1.945(b) of the Commission's Rules, 47 C.F.R.  1.945(b), that the application of the State of New Hampshire, File No. 27047-CD-P/L-94, as amended, is GRANTED, subject to Canadian coordination, as required by 47 C.F.R.  1.923(f). 25. It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154 and 309, and Section 1.945(b) of the Commission's Rules, 47 C.F.R.  1.945(b), that the applications of McCormick & Jacobson, File Nos. 27361-CD-P/L-93 and 29080-CD-P/L- 93, as amended, are GRANTED, subject to Canadian coordination, as required by 47 C.F.R.  1.923(f) and proof of antenna registration, as required by 47 C.F.R.  22.115(a)(2). 26. It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309, and Section 1.945(b) of the Commission's Rules, 47 C.F.R.  1.945(b), that the application of the State of New Hampshire for Part 90 Industrial/Business channels, filed on January 21, 1999 is GRANTED, subject to Canadian coordination, as required by 47 C.F.R.  1.923(f). 27. It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309, and Section 1.934(b) of the Commission's Rules, 47 C.F.R.  1.934(b), that the application of McCormick and Jacobson for new paging facilities in Chester, New Hampshire, filed on January 2, 1999, is DISMISSED. 28. It Is FURTHER ORDERED pursuant to Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, that the Application for Review filed by the State of New Hampshire on June 3, 1996, the Opposition to the Application for Review filed by McCormick and Jacobson on June 18, 1996, the Reply to the Opposition to the Application for Review filed by the State of New Hampshire on July 3, 1996, and all other pleadings filed by the State of New Hampshire and McCormick and Jacobson, pertaining to the instant matter, are DISMISSED. 29. This action is taken pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131 and 0.331. FEDERAL COMMUNICATIONS COMMISSION Kathleen O'Brien Ham Deputy Chief Wireless Telecommunications Bureau