********************************************************    
                         NOTICE
********************************************************

This document was converted from
WordPerfect to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

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                        )
COMMONWEALTH OF PENNSYLVANIA  )
and GPU ENERGY                )
Request for Waiver of Section 90.179         )
of the Commission's Rules               )


                             ORDER


Adopted:  August 31, 1999                         Released:  August 31, 1999

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:


                         I.  INTRODUCTION

     1.  On August 17, 1998, the Commonwealth of Pennsylvania (Commonwealth) and GPU Energy
(GPU) submitted a joint request for a waiver of Section 90.179 of the Commission's Rules to permit
eligibles in the Public Safety Radio Pool and in the Industrial/Land Transportation (I/LT) Category to
operate and utilize a statewide 800 MHz Public Safety/Power Radio Service system on a non-profit, cost
shared basis.  The request was placed on Public Notice on January 5, 1999.  We received eight
comments and two reply comments.  Based on the record in this proceeding, we conclude that the
requested relief should be granted in part and denied in part.                         II.  BACKGROUND

     2.  Under Part 90 of the Commission's Rules, Private Land Mobile Radio (PLMR) Services
frequencies in the 800 MHz band are divided into the following "categories" or "pools":  (a) Specialized
Mobile Radio, (b) Public Safety, (c) Business, (d) I/LT, and (e) General.  As a general matter, entities are
licensed on frequencies in the category or categories for which they meet the eligibility criteria.  Section
90.179(a) of the Commission's Rules provides that an entity may share its PLMR station only with users
that would be eligible for separate authorization to use those frequencies.  

     3.  Metropolitan Edison Company, which, with Pennsylvania Electric Company and Jersey Central
Power & Light Company, trades under the name GPU Energy, is licensed to operate 800 MHz I/LT
facilities in eastern Pennsylvania.  The Commonwealth has been issued licenses for conventional and
trunked channels in the Public Safety Radio Pool, including some public safety mutual aid channels, for
use in a statewide communications system by the Commonwealth's State Police and other state public
safety officials.   While construction has begun, the Commonwealth has expressed concern about its
ability to complete its proposed system alone.  Instead, the Commonwealth and GPU seek to integrate
their channels into a single system.  Specifically, the Commonwealth would provide infrastructure (such
as towers) and Public Safety frequencies, and GPU would provide infrastructure and Power Radio
Service frequencies.  The subject proposal envisions that GPU would contribute sufficient frequencies to
satisfy its own needs in areas where public safety spectrum is congested, including the Counties of Chester,
Lancaster, and Montgomery. 

     4.  A waiver of Section 90.179(a) of the Commission's Rules is required to permit Public Safety
eligibles to use the I/LT frequencies, and Power Radio Service eligibles to use the Public Safety
frequencies.  In support of the waiver request, the Commonwealth and GPU state that the radio equipment
currently used by the Commonwealth and many of its county and local governments is antiquated, and
incapable of reaching remote areas.  They also state that many public safety agencies, including state
agencies, lack statewide wireless communications capabilities, and that the spectrum the agencies use is
fragmented among three frequency bands.  Thus, an agency on one band cannot communicate with an
agency using a different band, which hinders coordination of public safety responses to emergencies
involving multiple jurisdictions.  

     5.  The Commonwealth and GPU propose a state-of-the-art dispatch communications network that
would be available to Public Safety and Power Radio eligibles throughout Pennsylvania on a non-profit,
cost shared basis, but public safety users would receive priority access to Public Safety frequencies
whenever necessary.  In addition to the Pennsylvania State Police, potential participants include other
state agencies (such as the Pennsylvania Turnpike Authority, the Pennsylvania Gaming Authority, and the
Attorney General's Office); county and local government agencies, emergency medical services, and public
utilities.  The proposed system would permit interoperable communications between Commonwealth
agencies, between Commonwealth and local agencies, and between local agencies.  It also would facilitate
communications between public safety agencies and public utilities using the system, particularly during
emergencies like severe storms that cause downed lines and power outages.  The Commonwealth and
GPU request that a waiver that is broad enough to include not only their facilities, but also the frequencies
of any Public Safety or Power Radio eligible subsequently added to the system.  They argue that a general
waiver would reduce administrative burdens on system participants and the Commission, and facilitate
expansion of the network.

     6.  The Federal Law Enforcement Wireless Users Group and UTC, The Telecommunications
Association, which represents utility and pipeline companies, agree that the proposed system will benefit
the citizens of Pennsylvania by saving costs, using spectrum efficiently, and facilitating highly reliable
communications that will allow efficient and effective responses to emergencies, particularly those in
remote areas or involving multiple jurisdictions.

     7.  The Industrial Telecommunications Association (ITA), the certified frequency coordinator for
the 800 MHz I/LT category, concedes that the requested waiver could improve the Commonwealth's public
safety communications capabilities, but argues that all I/LT eligibles, not just Power Radio eligibles,
should be allowed to share Public Safety spectrum.  Consequently, it contends that the waiver should be
granted only if the Commission lifts the freeze on 800 MHz inter-category sharing, at least on some
limited basis.  

     8.  Conversely, the Counties of Chester, Lancaster, and Montgomery, and Petroleum
Communications, Inc. (PetroCom), a provider of wireless services, oppose the waiver request on the
grounds that permitting Power Radio eligibles to share the Commonwealth's frequencies would reduce the
capacity and security available to public safety agencies using the Commonwealth's system.  Chester and
Montgomery Counties argue that they will be unable to expand their county-wide public safety systems
serving police, fire, and other emergency response personnel if the waiver is granted, because no Public
Safety spectrum will be available.  They state that the waiver request should be denied and the
Commonwealth's 800 MHz frequencies be made available for assignment, and that the Commonwealth
should be assigned frequencies for a statewide system in the recently reallocated 700 MHz band.


                         III.  DISCUSSION

     9.  To obtain a waiver of the Commission's Rules, a petitioner must demonstrate either that grant
of the waiver would be in the public interest and the underlying purpose of the rule(s) would be frustrated
or not served by application to the present case; or that, in view of unique or unusual factual
circumstances, application of the rule(s) would be inequitable, unduly burdensome, or contrary to the
public interest, or the applicant has no reasonable alternative.  We find that the Commonwealth and GPU
have shown that, in light of unique or unusual circumstances, application of the rule to the instant case
would be contrary to the public interest, and that they have no reasonable alternative, thus warranting grant
of a waiver of Section 90.179(a) of the Commission's Rules.  Our basis for this determination is set forth
below.

     10.  Unique Circumstances.  The Commonwealth and GPU have demonstrated that their proposal
involves unique circumstances.  The proposed system would cover a large territory, including remote areas
that currently have limited public safety communications infrastructure, where wireless communications
are particularly important due to the distances that must be covered and the relative scarcity of wireline
communications facilities.  Indeed, the Commonwealth and GPU state that most of Pennsylvania is
primarily rural.  Granting the waiver will bring about the construction of a state-of-the-art system in those
areas (and the rest of the state).  In addition, we note that denial of the waiver could possibly undermine
efforts in the public safety community to promote shared systems that foster interoperability and
operational flexibility.

     11.  Public Interest.  We conclude that granting a waiver under these circumstances would further
the public interest.  It is our belief that as a direct result of this waiver grant, entities providing police, fire,
and other public safety services in Pennsylvania will be able to communicate with one another, both on a
day-to-day basis and during emergencies.  The proposal would provide these entities the ability to obtain
wide-area coverage without having to incur, in this time of limited government resources (especially for
smaller, rural governmental entities), the total expense of constructing an entire wide-area backbone
system.  Granting the waiver also will facilitate communications between public safety agencies and
electric utilities.  In this connection, we note that utilities and other public service providers support, and
sometimes respond before, public safety entities when an incident occurs.  Therefore, we believe
interoperability between public safety agencies and public service providers such as utilities promotes
effective public safety communications, both daily and, especially, in large disaster situations.  The
Wireless Telecommunications Bureau noted the importance of facilitating such interoperability when
granting a similar request to allow construction and operation of a joint Public Safety/Power Radio Service
system.  We therefore reject the position of Chester, Lancaster, and Montgomery Counties and PetroCom
that no I/LT eligibles should be permitted to share Public Safety spectrum.  We also disagree with ITA's
argument that all I/LT eligibles should be permitted to share Public Safety spectrum.  The essential and
critical nature of public safety communications and the benefits associated with public safety/public service
interoperability are factors that weigh in favor of granting a waiver in the instant case.  In summary, we
find that the Commonwealth and GPU have demonstrated that the proposed system will serve the public
interest.

     12.  Lack of Reasonable Alternatives.  The Commonwealth and GPU also have demonstrated that
there are no reasonable alternatives within the existing rules to accommodate the described needs.  We note
that public safety agencies 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; [and] (4)
     . . . unique terminal equipment (mobile or portable units) designed for quick response in
     emergency situations.

The Commonwealth and GPU state that no other system in Pennsylvania, commercial or private, for-profit
or non-profit, provides the range, reliability, capacity and control of the proposed system.  In addition, the
record in this proceeding indicates that public safety agencies in Pennsylvania need technically advanced,
wide-area communications services, but lack access to sufficient spectrum, are relatively small in size, or
are otherwise not in a position to implement systems that would provide the same benefits as those
associated with the proposed system.  Under these circumstances, we do not believe that requiring each
agency to construct a stand-alone communications system would be practicable.  

     13.  We also are not convinced that the 700 MHz band would necessarily provide a reasonable
alternative in this case.  We note that the Balanced Budget Act of 1997 excluded utilities and other public
service providers from eligibility for 700 MHz public safety spectrum.  Moreover, the 700 MHz band
will not be fully available until December 31, 2006 at the earliest, particularly in large cities.  In
addition, we are persuaded by the Commonwealth's argument that compelling it to abandon its licensed and
partially-constructed 800 MHz system and construct a 700 MHz system would not serve the public interest
given the present status of construction.  Therefore, we find that there is no reasonable alternative to the
proposed 800 MHz system.

     14.  This waiver is granted with the understanding that Power Radio Service eligibles will
contribute sufficient spectrum to the proposed system to meet their communications needs, so that the
arrangement does not result in a net loss of public safety spectrum.  Should experience show that the
system relies disproportionately on public safety spectrum, we reserve discretion to reconsider whether the
waiver granted herein still serves the public interest.  In light of this concern, we grant in part and deny in
part the request that the waiver extend not only to the Commonwealth and GPU, but also to any subsequent
parties seeking to be part of the system.  We believe that such a request is warranted and in the public
interest for future participants that are Public Safety eligibles.  However, with respect to Power Radio
eligibles seeking to become participants, we believe that requiring separate waivers for additional Power
Radio eligibles to contribute spectrum to the system will aid us in monitoring the system's spectrum mix,
and accords with Commission precedent.


                         IV.  CONCLUSION

     15.  For the reasons stated herein, we find that the Commonwealth and GPU have met the burden
for waiver of Section 90.179 of the Commission's Rules.  This Order grants their request for waiver to
permit them to construct and operate a shared network on Public Safety and I/LT frequencies (including
any stations they subsequently add to the system) to be used by Public Safety and Power Radio eligibles on
a non-profit, cost-shared basis.  Separate waivers will be required for other Power Radio eligibles seeking
to contribute spectrum to the system.  The action taken herein serves the public interest in that it will
encourage more efficient use of the spectrum, and provide improved opportunities for interoperable
communications by the public safety and public service community on the state and local levels.

                       V.  ORDERING CLAUSES

     16.  IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C.  154(i), and Sections 90.151 and 90.179 of the Commission's Rules, 47 C.F.R.
 90.151 and 90.179, the waiver of Section 90.179 requested by the Commonwealth of Pennsylvania and
GPU Energy on August 17, 1998 IS GRANTED IN PART and DENIED IN PART, as set forth above. 

     17.  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. 


                         FEDERAL COMMUNICATIONS COMMISSION




                         D'wana R. Terry
                         Chief, Public Safety and Private Wireless Division
                         Wireless Telecommunications Bureau