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INTRODUCTION ĐTP  Sl- ` 2  x  1.` ` By this Memorandum Opinion and Order we dismiss various pleadings filed by the State  S:- xof New Hampshire (New Hampshire) and McCormick & Jacobson (M&J)X:WM yO-   #C\  P6QɒP#эxThe dismissed pleadings include the following documents, and all related pleadings: (1) New Hampshire  yOj- xJApplication for Review, June 3, 1996; (2) M&J Opposition to Application for Review, June 18, 1996; and (3) New Hampshire Reply to Opposition to Application for Review, July 3, 1996.  as jointly requested, pursuant  S- xto a Settlement Agreement submitted to the Commission on January 21, 1999.zZWM {O-   #C\  P6QɒP#эxSee Letter dated Jan. 20, 1999, from David Hill, Esq., Counsel to M&J, to Martin W. Bercovici, Esq.,  yOY- xCounsel to New Hampshire (Settlement Agreement). The Settlement Agreement was received by the Commission on January 21, 1999. z In addition, we  xconditionally grant the following applications by New Hampshire and M&J, as amended in association  xwith the Settlement Agreement: (a) New Hampshire's abovecaptioned application, as amended (New  xHampshire Amendment); and (b) M&J's pending Public Land Mobile Service (PLMS) applications in  S;- xWest Lebanon, NH (West Lebanon Amendment) and Littleton, NH (Littleton Amendment), as amended.; WM yO#-  #C\  P6QɒP# čxLetters from Audrey P. Rasmussen, Esq., Counsel to M&J, to Magalie Roman Salas, Secretary, FCC, dated January 21, 1999.  xWe also conditionally grant New Hampshire's application for a new Part 90 Private Land Mobile Radio  x(PLMR) authorization (Part 90 Application). Finally, we deny M&J's application for a new facility in Chester, NH (Chester Application).  So- T T T" b ,**UUU#"Ԍ S-Tԙ  II. BACKGROUND T  S- ` TPx2. ` ` On July22, 1993, New Hampshire filed an application accompanied by a waiver request  Sg- xjfor authority under Part 22 of the Commission's RulesJgP {O-  k#C\  P6QɒP# č#C\  P6QɒP#x47 C.F.R. Part 22. See also Revision of Part 22 of the Commission's Rules Governing the Public Mobile  xServices, Amendment of Part 22 of the Commission's Rules to Delete Section 22.119 and Permit the Concurrent Use  xwof Transmitters in Common Carrier and NonCommon Carrier Service, Amendment of Part 22 of the Commission's  xZRules Pertaining to Power Limits for Paging Stations Operating in the 931 MHz Band in the Public Land Mobile  {O- x-Service, CC Docket Nos. 92115, 9446, 93116, Report and Order, 9 FCC Rcd. 6513 (1994) (Part 22 Rewrite  {O-Order). J seeking to create and operate a statewide, multi xagency telecommunications system in the 150 MHz VHF band for governmental and public safety  xpurposes. New Hampshire proposed to operate its system on frequencies allocated for Part 22 PLMS  S- x<operationsFP yO - #C\  P6QɒP#эxSpecifically, New Hampshire sought authorization to use 152.51 MHz, 152.63 MHz, and 152.69 MHz. at various sites throughout the State of New Hampshire and at Windsor, Vermont. The system  xwould be used on an interagency basis by New Hampshire's Departments of Safety, Transportation, Fish  xand Game, and Revenue and Economic Development, by the Office of Emergency Management, and by  xzthe New Hampshire Executive Branch. New Hampshire proposed to operate its system as a private,  xnoncommercial facility in the same fashion as the PLMR systems generally governed by Part 90 of the  S- xMCommission's Rules.mP yOE-#C\  P6QɒP# čx47 C.F.R. Part 90.m In order to use this Part 22 spectrum as proposed, New Hampshire requested  xwaivers of the following Rules, which were effective when it filed its application: 47C.F.R.   x22.16(b)(2) (requested channels considered new if proposed area and type of service are not substantially  x\identical); 22.43(a)(2) (1year construction period); 22.309(b) (intent to provide service to the public  xversus private use); 22.501(b) (listing of frequencies in band divided into 30 kHz channels), and  x/22.516(a)(2) (traffic loading study required for request for multiple frequencies for existing twoway  S - x=station).k f P {O-   #C\  P6QɒP#эxThese rules were revised or superseded in the Part 22 Rewrite Order, supra. We also note that grant of  yOm-New Hampshire's waiver request would affect the Table of Allocations under the Commission's Part 2 rules.k In support of its waiver request, New Hampshire contended that: (a) it had a critical need for  xVHF frequencies due to New Hampshire's diverse and difficult terrain and high level of forestation;  xk(b)there were no VHF frequencies available under Part 90; (c)the requested Part 22 frequencies were  xavailable because of a discontinuation of precellular radiotelephone service by New England Telephone  xand Telegraph Company, and further due to lack of interest in such frequencies by commercial entities;  S- xand (d) the Commission's "spectrum refarming" proceeding^ P {O-  #C\  P6QɒP# #C\  P6QɒP#эxSee Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the  {O- xYPolicies Governing Them, PR Docket No. 92235, Report and Order and Further Notice of Proposed Rule Making,  {O -10FCC Rcd 10076 (1995) (Refarming R&O). would not meet its communications needs  Sk-in a timely manner. x  S- ` x3.` ` On July 26, 1993, M&J filed two applications for PLMS common carrier mobile and  xpaging services. On July 28, 1993, New Hampshire's waiver request and associated license application  S- xwere placed on public notice. P {O%&-#C\  P6QɒP# čxSee Public Notice, Report No. PMS9343, Mimeo No. 34130 (released July 28, 1993). On August 11, 1993, M&J's two applications were placed on public"x ,C)C)UU"  S- x.notice. P {Oh- #C\  P6QɒP#э xSee Public Notice, Report No. PMS9345, Mimeo No. 34351 (released Aug. 11, 1993). M&J filed a third application on September27, 1993. ZP yO-#C\  P6QɒP# čxM&J did not file any waiver requests. On October 10,  S- x1993, M&J's third application was placed on public notice. P {OW- #C\  P6QɒP#эxSee Public Notice, Report No. PMS9402, Mimeo No. 10148 (released Oct. 10, 1993). Subsequently, M&J's applications were  S-declared to be competing and mutually exclusive with New Hampshire's application. |P {O- #C\  P6QɒP#эxSee Public Notice, Report No. PMS9406 (released Nov. 10, 1993).  S4- ` x4.` ` On May 3, 1996, the Wireless Telecommunications Bureau (Bureau) denied New  S- xHampshire's waiver request.QP yO -   #C\  P6QɒP#эxApplication of New Hampshire for Facilities in the Public Land Mobile Service at Various Locations in the  {Ow -State of New Hampshire, Memorandum Opinion and Order, 11 FCC Rcd 5258 (WTB 1996) (Bureau Order).Q The Bureau found that New Hampshire had not met the requirements of  xSection 22.119 of the Commission's Rules. Specifically, New Hampshire did not show that (a) a grant  xof the waiver wouldserve and not frustrate the underlying purposes of the Commission's Rules and would  xbe in the public interest, or (b) unique and unusual circumstances existed that would render application  xof the Rules inequitable, unduly burdensome, or otherwise contrary to the public interest, and that no  xreasonable alternative solutions were available under the existing Rules, as required by thenexisting  S- xjSection 22.119 of the Commission's Rules.h P {O-#C\  P6QɒP# čxBureau Order, 11 FCC Rcd 5259, 5262. Ğ The Bureau found unconvincing New Hampshire's primary  S - x=argument that there was no commercial interest in the frequencies at issue.m P {O6-#C\  P6QɒP# čxId. at 5250.m The Bureau also found that  x[New Hampshire's mountainous topography and high forestation, the technical limitations of other bands  xallocated for Part 90 PLMR operations with available frequencies, and the additional cost that might result  xLfrom constructing a system using such alternative frequencies did not either constitute unique or unusual  S - xcircumstances or establish the absence of reasonable alternatives.m P {O-#C\  P6QɒP# čxId. at 5262.m As a result, the Bureau concluded that  S - x New Hampshire had not demonstrated that waiver of Section 22.309(b) of the Commission's Rules, which  Sj-required the licensee to provide service to the public rather than privately, was warranted.\jP {O(-  #C\  P6QɒP# čxId. at 5259, 5262,  11, 28, and 30, nn.13, 26. It was not necessary, therefore, to consider granting New  x;Hampshire's request to waive the other provisions relating to the method by which New Hampshire would have used  {O-the frequencies, i.e., construction period, traffic loading, and channelization.  S- ` x5.` ` On June 3, 1996, New Hampshire filed an Application for Review, seeking review of the  S- x[Bureau Order. While New Hampshire's Application for Review was pending, Congress enacted Section  S- x337 of the Communications Act of 1934.BP {O$-   #C\  P6QɒP#эxSee 47 U.S.C.  337; see also Balanced Budget Act of 1997, Pub. L. No. 10533, 111 Stat. 251 (1997), 3004 (Balanced Budget Act). Thereafter, New Hampshire filed an ex parte pleading (Section  Sm- x.337 pleading)mP {O'-  #C\  P6QɒP# čx New Hampshire's pleading, entitled "Ex Parte Filing Regarding New Statute Which Requires Grant of Pending Application for Review," was filed on August 20, 1997. asserting that Section 337 of the Communications Act required the Commission to grant"m,C)C)UU"  S-its Application for Review and, on that ground, urging that we do so.0"P {Oh-  #C\  P6QɒP# čxAlthough New Hampshire's pleading is styled as an ex parte filing in support of its Application for Review,  xSection 337(c) provides a procedure and remedy entirely independent of the Commission's application for review  yO- xyprocess. Accordingly, we will not reach the Section 337 issues. Additionally, the request is not subject to the procedural limitations of 47 C.F.R.  1.115(c), (d). 0  S- hhx6.` ` Settlement Agreement.hh On January 21, 1999, M&J and New Hampshire filed the  xSettlement Agreement, and various attachments, which include amendments to their pending applications,  S4- x{applications for new channel assignments, and rule waiver requests.rX4P yO -  #C\  P6QɒP# čx New Hampshire and M&J argue for a "blanket" waiver pursuant to Section 337(c) of the Communications  yON - xAct. Because we are granting waiver of the pertinent rules on other grounds, we dismiss the Section 337 pleading as moot.r Specifically, the Settlement  xAgreement stipulates that M&J will amend its pending application for authorization to operate on the  x152.51 MHz channel in Littleton, NH, and its pending application for authorization to operate on the  xz152.63 MHz channel at West Lebanon, NH, to delete the requested frequencies and apply for 152.69  xMHz. In return, New Hampshire will amend its application to delete its request for the 152.69 MHz  xfrequency, and apply for nonconflicting PLMS and PLMR frequencies. If the agreement is implemented,  xand the pertinent applications are granted, the parties will dismiss all their pending adverse pleadings in  S-the instant matter.wP yOA- #C\  P6QɒP#эxSettlement Agreement at 12.w " Si - ` 2"x7.` ` M&J's Filings and Waiver Request. M&J submitted amendments to its pending Littleton  xapplication to change the frequency from 152.51 MHz to 152.69 MHz, and its West Lebanon application  xto change the frequency from 152.63 MHz to 152.69 MHz. Section 1.929(a)(6) of the Commission's  S - xkRulesF b P yO-  z#C\  P6QɒP# čx47 C.F.R.  1.929(a)(6), formerly 47 C.F.R.  22.123. The Commission recently streamlined and revised  xYthe Commission's rules governing license procedures for radio services licensed by the Wireless Telecommunications  xBureau. Biennial Regulatory Review Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101  xhof the Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless  {O- xTelecommunications Services, Report and Order, WT Docket No. 9820 ( 1998) 13 FCC Rcd 21027 (ULS Report  {O- xand Order). The ULS Report and Order consolidated many servicespecific procedural rules into Part 1 rules,  {O- xxincluding the classification of major and minor filings, and waiver request rules. See Id. at Appendices F& G. No substantive changes concerning the classification of frequency amendments was made to the Commission's Rules.  states that amendments to pending applications that request change of frequency, such as the  x.Littleton and West Lebanon Amendments, are major amendments. M&J contends that the amendments  Sj- xshould be considered "minor," pursuant to former Section 22.23(g)(2) of the Commission's Rules."jpP yOz -  #C\  P6QɒP# čx 47 C.F.R.  22.23(g)(2) provides that amendments to pending applications will be considered minor if they  xresolve frequency conflicts with other pending applications, but don't cause new frequency conflicts. This section  {O "- xwas deleted from the Commission's Rules pursuant to the Part 22 Rewrite Order. See Part 22 Rewrite Order, 9 FCC Rcd at 654648.  S7- x-Alternatively, M&J requests waiver of the "freeze" on new paging frequency applications, in order to grant  S- xthe Amendments.$ZP yO%-  \#C\  P6QɒP# čxThe "freeze" on the acceptance of new applications for paging frequencies was implemented on February  {O&- x8, 1996. See Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging  {O'- xSystems, Notice of Proposed Rule Making, WT Docket No. 9618, 11 FCC Rcd. 3108 (1996) (Freeze Order ). As  xZdiscussed below, major amendments to pending applications are considered to be "new" applications, and as such,"Z(,C)C)(" they are subject to the paging "freeze." M&J also submitted the Chester Application, seeking authorization to operate on the"X,C)C)UU"  xk152.69 MHz channel at Chester, NH. M&J requested waiver of the paging freeze so that the Chester Application may be granted.  Sg- ` _x8.` `  New Hampshire's Filings. New Hampshire submitted the Part 22 Amendment, modifying  x<the abovecaptioned application to revise the proposed site locations on the 152.51 MHz and 152.63 MHz  xychannels, and withdrawing its request for authorization on the 152.69 MHz frequency. The site location  S- xrevisions result in an extension of New Hampshire's coverage contour.XP yO- #C\  P6QɒP#эxNew Hampshire Amendments at Exhibit C. Section 1.929(c)(1) of the  x/Commission's Rules states that extension of an applicant's composite interference contour is a major  Sh- xamendment.vhP yO -#C\  P6QɒP# čx47 C.F.R.  1.929(c)(1).v New Hampshire also submitted the Part 90 Application, requesting authority to operate on  S5- xfour paired channels in the 151 MHz and 161 MHz bands.:5xP yOM-  /#C\  P6QɒP# čxSpecifically, New Hampshire seeks to operate on the following frequency pairs: 160.665/151.760 MHz; 160.530/151.730 MHz; 160.830/151.640 MHz; and 160.785/151.670 MHz. Part 90 Application at Exhibit A2.: These channels are in the Industrial/Business  S- xjpool.|P {Or- #C\  P6QɒP#эxSee  47 C.F.R. 90.35. | As a public safety entity, the New Hampshire is ineligible to apply for these frequencies, absent  S-a rule waiver.sb P yO-#C\  P6QɒP# čx47 C.F.R.  90.35(a).s  Si - ` $x9.` `  New Hampshire's Reconfigured System and Waiver Request. Attached to the Part 22  x-Amendment and Part 90 Application is a Public Interest Statement/Rule Waiver Request (Waiver Request),  S - xlwherein New Hampshire requests waivers of certain Commission rules to obtain the grants. New  xMHampshire claims that, in an effort to resolve the mutual exclusivity problem, it revised its proposed  xjsystem configuration by modifying its proposed transmitter locations, deleting its request for the 152.69  xMHz channel, and requesting some new PLMR frequencies, which permitted it to execute the Settlement  S7- xzAgreement with M&J.q 7 P yO-#C\  P6QɒP# čxWaiver Request at 34.q New Hampshire contends that grant of the Part 22 Amendment and Part 90  S- xkApplication are necessary to implement the revised system.t! P {O&-#C\  P6QɒP# čxSee id. at 4.t Specifically, New Hampshire plans to  S- xchange its proposed public safety system to operate at fourteen sites, with a single frequency assignment  S- xat each site, as opposed to its original plan to seek twentyeight channel assignments at eight sites.o"P {OR!-#C\  P6QɒP# čxId. at 5, n.2.o New  xLHampshire plans to use the requested Part 22 frequencies at eight locations, while the other six locations  S8- xwill be served by the Part 90 frequencies.{#8P {O~$- #C\  P6QɒP#эxSee Id. at 5; Exhibit A2.{ The newly proposed system is a statewide, digital, trunked, integrated voice/data system, utilizing 12.5 kilohertz bandwidth.  S- ` 3x10.` ` Part 22 Waivers. New Hampshire claims that the requested Part 22 VHF channels are  x=necessary because: (a) they are paired channels, necessary for trunking; (b) due to the heavy forestation"l8#,C)C)UU#"  x and mountainous areas, channels in the higher frequency range would require more stations to obtain  xstatewide coverage; (c) the additional stations, necessitated by the use of higher frequencies, would cost  S- xmore than twice as much as a VHF system; (d) New Hampshire has already spent a significant amount  xyof its appropriation to upgrade its VHF system; and (e) the additional stations would have to be sited on  S4- xpark lands, in areas that have no roads or electricity service.n$4P {O-#C\  P6QɒP# čxId. at 58. n New Hampshire requests waivers of the  xfollowing Part 22 Rules: (1) Section 22.103 (now Section 1.917), which requires that an applicant intend  S- xyto provide service to subscribers (as a public safety entity, New Hampshire will not be providing service  S- xto the public); %ZP {O -  #C\  P6QɒP# čx 47 C.F.R.  22.103 was deleted, and has been superseded by 47 C.F.R.  1.917.  ULS Report and Order,  yO_ - at Appendix F.  and (2) Section 22.501(b) (now Section 22.561), stating that the subject VHF channels  Sh- x<have a 20 kilohertz bandwidth (the proposed system will utilize channels with 12.5 kilohertz bandwidth).&hP {O -  >#C\  P6QɒP# čx 47 C.F.R.  22.501 was deleted and superseded by 47 C.F.R.  22.561. See Part 22 Rewrite Order, 9 FCC Rcd at 656465.  S5- x New Hampshire also requests waiver of the paging application "freeze," arguing that its revised station  S- xlocations will result in a minimal extension of coverage,'~P yO-  #C\  P6QɒP# čxWaiver Request at 1314. New Hampshire argues that the new coverage contours are "effectively" within  x;the scope of the pending applications's coverage contour, and that any extension would largely constitute a "fillin"  yO@- xbetween proposed station sites, which would not be available for independent license authority. New Hampshire  {O- x contends that due to the de minimis nature of the increased coverage contour, its amendment is a "minor amendment"  {O- xKunder 47 C.F.R.  22.123, and 47 C.F.R.  22.23(g)(2), which was deleted pursuant to the Part 22 Rewrite. New  xHampshire concedes that, if the Part 22 Amendments are to be classified as major amendments, it requires waiver  {Od-of the paging "freeze." Id. at 1415.  and that operations at those locations will not  S-cause harmful interference to other parties.B(T P {O-  =#C\  P6QɒP# čxId. at 1415. New Hampshire has provided engineering exhibits to its Part 22 Amendment, illustrating that operations at the new proposed locations will not cause harmful interference to protected parties. B  Si - ` &x11.` ` Part 90 Waiver Request. New Hampshire argues that it requires the requested  x.Industrial/Business channels because: (a) the VHF public safety frequencies, for which it is eligible, are  xclustered at 154155 MHz, and therefore do not have the necessary separation to protect against harmful  S - x=interference;)\ P {O-  #C\  P6QɒP# čxWaiver Request at 8.  New Hampshire submitted a statement from a frequency coordinator, certifying that  {O- xKthere are no adequately clear public safety channels, suitable for New Hampshire's proposed system. See Waiver Request at Exhibit B. and (b) the requested channels, though nonpaired, can be coordinated to provide trunking  S - xyservice, and have enough separation to satisfy New Hampshire's protection criteria.l* P {O"-#C\  P6QɒP# čxId. at 89.l Accordingly, New  x=Hampshire requests waiver of Section 90.35(a) and former rule 90.91(a), which restrict the eligibility for  S7- xthe requested Industrial/Business frequencies.+\7dP yO;%-  #C\  P6QɒP# čx 47 C.F.R.  90.91(a) was deleted, and superseded by 47 C.F.R.  90.35(a). The Commission has completed  xa rule making wherein twenty PLMR services were consolidated into two pools: the Public Safety pool and the  yO&- xIndustrial/ Business pool. Some of the Part 90 channels requested by New Hampshire are Railroad channels, of  yO'- xwhich the eligibility requirements were listed under 47 C.F.R.  90.91(a). Because the Railroad channels are included  yO[(- xin the Industrial/Business pool, the eligibility requirements for those channels are now listed under 47 C.F.R. "[(*,C)C)("  {O- xh90.35(a). See Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the  xPolicies Governing Them and Examination of Exclusivity and Frequency Assignment Policies of the Private Land  {O"-Mobile Services, PR Docket No. 92235, Second Report and Order, 12 FCC Rcd 14307 (1997).  As a public safety entity, New Hampshire is ineligible to"7+,C)C)UU"  S-apply for these frequencies, absent a rule waiver.s,P yO-#C\  P6QɒP# čx47 C.F.R.  90.35(a).s  S- III. DISCUSSION TP  S4- ` Cx12.` ` To obtain a waiver of the Commission's Rules, a petitioner must show: (a) that the  xunderlying purpose of the rule would not be served or would be frustrated by its application in the instant  x^case, and that grant of the waiver would be in the public interest; or (b) that unusual or unique  xycircumstances exist, so that application of the rule would be inequitable, unduly burdensome, or contrary  Sh- xto the public interest, or that the petitioner has no reasonable alternative.-h|P {O -  #C\  P6QɒP# čx47 C.F.R.  1.925(b); see also WAIT Radio v. FCC, 418 F.d 1153, 1157 (D.C. Car. 1969) , cert denied, 409  {ON-U.S. 1027 (1972).  Additionally, the Commission  S5- xLmay, on its own motion, waive any provision of the Rules if good cause therefor is shown..5P {O- #C\  P6QɒP#эx47 C.F.R.  1.3; see also 47 C.F.R.  1.925(b)(1). Ġ Due to the  S-unique circumstances in this case, we find that waiver of certain Commission Rules is warranted./Zj P yO -   #C\  P6QɒP#эxWe will not grant the parties' request to deem their respective Amendments as "minor," pursuant to 47  {O- xiC.F.R.  22.23(g)(2). That section is no longer in effect (see note 28 supra) and is of no decisional significance, as the Amendments at issue were filed after the rule was deleted. x  S - ` x13.` ` As stated above, Section 1.929 of the Commission's Rules classifies amendments to  xpending applications that request any extension of the composite interference contour, or that change a  xrequested channel, as "major." Major amendments to pending applications are generally treated as "initial  S - xyapplications," which may open a new comment window pursuant to Section 309 of the Communications  S - xActn0 P yO-#C\  P6QɒP# čx47 U.S.C.  309.n and be subject to competitive bidding.B1 P {O-  L#C\  P6QɒP# čxSee Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile  {OV-Services, GN Docket No. 93252, Third Report and Order, 9 FCC Rcd 7988, 8149 (1994). B Accordingly, New Hampshire's Part 22 Amendment and  xM&J's Amendments are classified as "new applications." Without a waiver of the interim rules, these  Sj-applications are subject to the paging "freeze."2jxP {O -#C\  P6QɒP# čxSee 47 C.F.R.  1.947(a).  S- ` $x14.` ` Section 22.123 of the Commission's RulesZ3 P yO#-   #C\  P6QɒP# čx47 C.F.R.  22.123 is the Part 22 precursor to 47 C.F.R.  1.929, and classifies amendments that extend  {Ov$-the original service contour and that change frequency as major amendments. See para. 7 supra.Z was implemented pursuant to the Part 22  S- xRewrite Order. The main purpose of Section 22.123 of the Commission's Rules is to explain the basis  xupon which applications and amendments thereto are classified, pursuant to Section 309 of the  Sm- xCommunications Act of 1934, as amended.4mdP {Oq(-#C\  P6QɒP# čx 47 U.S.C.  309; Part 22 Rewrite Order, 9 FCC Rcd at 6547. Subsection 309(g) authorizes the Commission to "adopt"m4,C)C)UU"  xyreasonable classifications of applications and amendments in order to effectuate the purposes of" Section  S- x309 (which principally concern public notice and opportunity to file petitions to deny).5P {O5-#C\  P6QɒP# čxPart 22 Rewrite Order, 9 FCC Rcd at 6547, citing 47 U.S.C.  309(j). Accordingly,  xamendments are classified as "major" in order to permit interested parties the opportunity to comment on a proposed service.  S- ` x15.` ` We note that both M&J's and New Hampshire's underlying applications have already been  S- xKplaced on public notice, and that the public has been given the opportunity to file petitions to deny.y6ZP {O-#C\  P6QɒP# čxSee para. 3 supra.y New  x=Hampshire's pending application proposed statewide coverage on the frequencies 152.51 MHz, 152.63  xZMHz and 152.69 MHz, with transmitters that would provide coverage to virtually every corner of the state  S5- xof New Hampshire.75P {O -#C\  P6QɒP# čxSee Waiver Request at Exhibits A1 and C. New Hampshire's newly proposed operations are mostly within the scope of its  S- xoriginal application.h8~P {O -#C\  P6QɒP# čxSee Id.h Additionally, M&J's Amendments, which propose a change of frequency to 152.69  S- xjMHz, are within the interference contour of New Hampshire's originally proposed operations on 152.69  S - xMHz, as well as M&J's original filing for the 152.69 MHz channel in Windsor, VT. Under the unusual  xcircumstances of this case, where the original applications encompassed nearly statewide coverage, the  xpublic has been given a chance to comment on the originally proposed operations of New Hampshire and  xjM&J, and the newly proposed operations of both parties, taken together, expand only insignificantly on  xthe 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.  S7- ` Bx 16.` ` We also conclude that, as further required under the fist alternative standard of Section  S- x 1.925(b), a waiver in this case would be in the public interest.9P yO-   #C\  P6QɒP#эxBecause we are granting a waiver under the first section 1.925(b) standard, we need not consider the second standard. We have an ongoing commitment to  S- xensure that public safety agencies have sufficient spectrum to meet public safety needs.:$h P {O-    #C\  P6QɒP#эxSee The Development of Operational, Technical, and Spectrum Requirements for Meeting Federal, New  xHampshire, and Local Public Safety Agency Communications Requirements Through the Year 2010, WT Docket  {Ok- xNo. 96086, First Report and Order and Third Notice of Proposed Rule Making, 13 Communications Reg. (P&F) 775 (1998). This  xcommitment includes the important goal of meeting the spectrum needs of state and local public safety  Sk- xagencies.;"kT P {O_!-   #C\  P6QɒP#эxSee Public Safety Wireless Advisory Committee (PSWAC) Final Report at 3 (rel. Sept. 11, 1996). The  xCommission and the National Telecommunications and Information Administration (NTIA) have established PSWAC  xto engage in studies and make recommendations concerning the current and future spectrum requirements of public safety entities. Waiver of the pertinent rules will permit New Hampshire to construct a statewide VHF public  x/safety communications system that will provide increased safety to the citizens of New Hampshire,  xconsistent with our goal of promoting efficient and effective public safety communications at the state and  S- xjlocal level. If we did not grant the required authorizations, New Hampshire would not be able to operate  xits system in a rapid and efficient manner, as there are no other suitable frequencies of which it could avail">;,C)C)UU$"  S-itself.<P {Oh-  #C\  P6QɒP# čxAs stated in para. 4  supra, the Bureau found New Hampshire's argument, in its original waiver request,  xthat, due to the topography of the State of New Hampshire, alternative frequencies would be unsuitable for its system  x.because of technical limitations of those channels, and that the cost of operating a system using alternative  xfrequencies would be prohibitive, did not constitute unique circumstances or establish the lack of reasonable  {O- x-alternatives that would justify a rule waiver. See Order, 11 FCC Rcd at 5262. We note that New Hampshire, in  xYits current Waiver Request, has provided additional information concerning its need for the subject VHF frequencies,  {O- x.that have established unique circumstances and lack of a reasonable alternative. We refer, inter alia, to New  xxHampshire's declaration that many of the additional sites, the construction of which would be necessitated by the  xuse of alternative frequencies, would have to be sited on park land, and that many of those areas are not served by  xadequate roads, and do not have electricity service. Waiver Request at 67. We find that it is in the public interest to consider this additional information.   S- ` #x17.` ` Moreover, adoption of the Settlement Agreement and grant of the associated applications  xcomports with our longstanding policy of encouraging settlement of conflicts between mutually exclusive  S4- xapplicants in order to speed service to the public and avoid unnecessary legal expenses.r=\4. P {O-  #C\  P6QɒP# čxSee Amendments of parts 1 and 21 of the Commission's Rules and Regulations Applicable to the Domestic  {O- xJPublic Radio Services (Other than Maritime Mobile), Docket No. 19905, Report and Order, 60 F.C.C. 2d 549, 55859 (1976). r Accordingly,  xour actions will serve the public interest by terminating a longrunning litigation proceeding, and  xpromoting the rapid implementation of new communications services. Because implementation of the  xSettlement Agreement is a precondition to M&J's withdrawal of its objections to the New Hampshire  xApplication, 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.  S-  S- ` ~x18.` ` Due to the unique circumstances in this case, and the public interest concerns, as stated  S - xabove, we, on our own motion, waive 47 C.F.R  1.929 to the extent necessary to classify New  xHampshire's Part 22 Amendment, and M&J's Littleton and West Lebanon Amendments, as minor  xamendments to pending applications, not subject to the paging application "freeze." We also waive the  S - xfollowing rules to the extent necessary to approve the Settlement Agreement, and to grant the New  x[Hampshire Amendment, the Littleton and West Lebanon Amendments, and the Part 90 Application: 47  S - xC.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  xLnature of New Hampshire's proposed interagency system does not permit the provision of thirdparty,  S7- xcommon carrier communications, and New Hampshire cannot use alternative frequencies.z>7R P {O)-#C\  P6QɒP# čxSee note 58 supra. z Similarly, we  S- xwill waive Section 22.561 because New Hampshire cannot use available 12.5 kHz channels, and utilization  xLof "part" of the requested Part 22 channels will cause no harm to cochannel users. Section 90.35(a) will  S- xbe waived because the requested Part 90 channels have the necessary qualities that will permit New  xHampshire to operate its trunked network, and protect against harmful interference. Moreover, these  S8- (#channels have been recommended by a frequency coordinator,w?8P yO#-#C\  P6QɒP# čxWaiver Request at Exhibit B.w as required by our rules.@8tP {OL%-#C\  P6QɒP# čxSee 47 C.F.R.  90.175. ă  (#(#X  S- ` Bx19.` ` We note that M&J's Littleton and West Lebanon Amendments do not contain antenna" @,C)C)UU"  S- xMstructure registration numbers as required by Section 22.115(a)(2) of the Commission's Rules.wAP yOh-#C\  P6QɒP# čx47 C.F.R.  22.115(a)(2).w The  xjantenna structure registration rules were promulgated pursuant to Section 303(q) of the Communications  xAct, 47 U.S.C.  303(q), in order to ensure the safety of aircraft navigation. Accordingly, we condition  xthe grant of M&J's Amendments on M&J submitting proof of antenna registration of the Littleton and  xWest Lebanon sites. We further note that because the proposed operations of New Hampshire and M&J  S- xwill be conducted along the Canadian Border,sBXP yO-#C\  P6QɒP# čx47 C.F.R.  1.955(e).s grant of New Hampshire's Part 22 Amendment and Part  x-90 Application and M&J's Littleton and West Lebanon Amendments are conditioned on coordination with,  S-and approval by, the Canadian Department of Communication.sCP yO# -#C\  P6QɒP# čx47 C.F.R.  1.955(a).s  S5- ` _x20.` ` We deny, however, M&J's Chester Application   . The Chester Application is not essential  xto resolving mutual exclusivity between the parties, and is not instrumental in the implementation of New  xHampshire's public safety system. Accordingly, the Chester Application is strictly an application for new  S - xpaging facilities and it is not classified as an amendment to any of the subject pending applications. As  Si -such, it is subject to the paging application "freeze," and will be dismissed.  S - IV. CONCLUSION AND ORDERING CLAUSES  S -TP  Sj- ` x21.` ` For the reasons discussed herein, and pursuant to Section 1.925 of the Commission's  S7- xRules, 47 C.F.R.  1.925, the Settlement Agreement filed by the State of New Hampshire and McCormick  x& Jacobson on January 21, 1999 is hereby approved. Additionally, we conclude that grant of the requests  xfor waiver submitted by the State of New Hampshire and McCormick & Jacobson pursuant to the  xkSettlement 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.  S- ` x22. ` ` Accordingly, it is ORDERED pursuant to Section 1.925 of the Commission's Rules, 47  xC.F.R.  1.925, that the Requests for Waiver filed by the State of New Hampshire and McCormick &  xJacobson filed on January 21, 1999, are GRANTED to the extent stated herein. The following sections  xof the Commission's Rules are hereby waived, to the extent stated herein: 47 C.F.R.  1.917; 22.561; and 90.35(a).  S- ` x23.` ` It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act  x of 1934, as amended, 47 U.S.C.  154 and 309, and Section 1.945(b) of the Commission's Rules, 47  x.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.  S-  S- `  x24.` ` It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act  xof 1934, as amended, 47 U.S.C.  154(i) and 309, and Section 1.945(b) of the Commission's Rules, 47  xC.F.R.  1.945(b), that the application of the State of New Hampshire, File No. 27047CDP/L94, as  S;-amended, is GRANTED, subject to Canadian coordination, as required by 47 C.F.R.  1.923(f). x  S - ` x25.` ` It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act  x of 1934, as amended, 47 U.S.C.  154 and 309, and Section 1.945(b) of the Commission's Rules, 47  xzC.F.R.  1.945(b), that the applications of McCormick & Jacobson, File Nos. 27361CDP/L93 and"o" xC,C)C)UU%"  xM29080CDP/L93, as amended, are GRANTED, subject to Canadian coordination, as required by 47  S-C.F.R.  1.923(f) and proof of antenna registration, as required by 47 C.F.R.  22.115(a)(2).  Sg- ` x26.` ` It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act  xof 1934, as amended, 47 U.S.C.  154(i) and 309, and Section 1.945(b) of the Commission's Rules, 47  xC.F.R.  1.945(b), that the application of the State of New Hampshire for Part 90 Industrial/Business  S- xchannels, filed on January 21, 1999 is GRANTED, subject to Canadian coordination, as required by 47 C.F.R.  1.923(f).  S5- ` x27.` ` It is FURTHER ORDERED pursuant to Sections 4(i) and 309 of the Communications Act  xof 1934, as amended, 47 U.S.C.  154(i) and 309, and Section 1.934(b) of the Commission's Rules, 47  xC.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. x28.` ` It Is FURTHER ORDERED pursuant to Section 1.115 of the Commission's Rules, 47  xC.F.R.  1.115, that the Application for Review filed by the State of New Hampshire on June 3, 1996,  xthe Opposition to the Application for Review filed by McCormick and Jacobson on June 18, 1996, the  x=Reply to the Opposition to the Application for Review filed by the State of New Hampshire on July 3,  xl1996, and all other pleadings filed by the State of New Hampshire and McCormick and Jacobson, pertaining to the instant matter, are DISMISSED.  S- ` x29.` ` This action is taken pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47  S-C.F.R.  0.131 and 0.331.  Sk-TT P Y>FEDERAL COMMUNICATIONS COMMISSION X(# X(# X(# X(#Px` `  hh@hppKathleen O'Brien Ham x` `  hh@hppDeputy Chief x` `  hh@hppWireless Telecommunications Bureau