Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ADF COMMUNICATIONS, INC. ) File No. A007179 ) Application for a New 470 MHz ) Radio Station in Boston, Massachusetts ) MEMORANDUM OPINION AND ORDER Adopted: October 5, 1999 Released: October 5, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On December 9, 1997, the Police Department of the City of Revere, Massachusetts (Revere Police Department or Petitioner) submitted a letter (Petition) opposing the November 19, 1997, grant of an authorization to ADF Communications, Inc. (ADF). The Revere Police Department seeks to operate on the same frequencies and in the same vicinity as those which were the subject of ADF's grant. The Revere Police Department has been licensed on these frequencies for over twenty years, employing the frequencies for public safety communications, including communications related to emergency police operations. ADF Communications is a corporation seeking to provide two-way radio service to Business Radio Service eligibles on a for-profit basis. For the reasons discussed below, the Revere Police Department's Petition is granted. II. BACKGROUND 2. On June 25, 1992, the Revere Police Department received a five-year renewal authorization from the Commission to continue to operate Station KCZ967 on frequency pair 470/473.8625 MHz, in the Boston, Massachusetts area. The Revere Police Department was eligible for the exclusive use of these Public Safety Pool frequencies, until June 23, 1997, the scheduled date of expiration of its authorization, absent the filing and ultimate grant of a timely filed renewal application. On August 29, 1997, the record of the station was automatically purged from the FCC's licensing database, because receipt of a renewal application was not shown on the database as of that date. Once deleted from the FCC's licensing database, frequency pair 470/473.8625 MHz became available to applicants in the General Access Pool. 3. On September 9, 1997, the Revere Police Department filed a Commission Form 574R renewal application ("short-form" application) for the frequencies. The Revere Police Department's short-form application was returned, without action, on the basis that the renewal application had been filed after the thirty-day reinstatement period had lapsed. The return notification instructed the Revere Police Department to file a Commission Form 600 application ("long-form" application) to obtain a new station license, and to obtain frequency coordination from the Associated Public Safety Communications Officers, Inc. (APCO), in accordance with Section 90.175 of the Commission's Rules. On September 11, 1997, the Revere Police Department filed a request for Special Temporary Authority (STA) to continue to operate on frequency pair 470/473.8625 MHz. The Revere Police Department argued that it urgently needed the frequencies to conduct critical and essential 24-hour police operations, including dispatching emergency personnel in cases involving danger to life and property. The Bureau granted the STA request on September 19, 1997. 4. On September 17, 1997, ADF filed an application proposing to provide commercial radio service on frequencies 470/473.8625 MHz in the Boston metropolitan area. The application had been coordinated by the Personal Communications Industry Association (PCIA), an FCC-certified frequency coordinator, for new station operation. The application was placed on Public Notice on September 23, 1997. Within thirty days of the release of the Public Notice, the Revere Police Department filed a long- form application with APCO for the same frequency pair, which APCO forwarded to the FCC on September 29, 1997. The City of Revere's application was returned to APCO with a notation that ADF had previously filed for the same frequency pair and the proposed locations of the two applicants were only 2.96 kilometers apart. On November 19, 1997, ADF's application was granted under call sign WPLQ307. ADF's grant appeared on Public Notice on November 25, 1997, with a thirty-day reconsideration period ending on December 26, 1997. 5. Prior to the expiration of the thirty-day reconsideration period, the Revere Police Department filed a long-form application directly with the Bureau. Also within the thirty-day period, the Revere Police Department filed a letter opposing ADF's authorization and requesting authority to continue operating on the frequency pair. On February 26, 1998, the Bureau released a Public Notice (Revere Public Notice) announcing that it was treating the Revere letter as a petition for reconsideration of the Bureau's November 19, 1997, action. The Revere Public Notice noted that although the Revere letter had not been served on ADF, it nonetheless was submitted to the FCC within thirty days of the Public Notice announcing the grant of ADF's application. 6. ADF filed an Opposition to the Revere letter on March 13, 1998. ADF subsequently filed two pleadings captioned "Supplement to Opposition," which were filed on March 20, 1998 (Supplement) and December 11, 1998 (Further Supplement). PCIA filed "Comments" and the Industrial Telecommunications Association (ITA), another FCC-certified frequency coordinator, filed "Reply Comments." APCO responded to ADF's Opposition and Supplement to Opposition. To complete the record, the Bureau sent a letter to the Revere Police Department requesting additional information. III. DISCUSSION A. Procedural Issues 7. The Revere Letter. ADF argues that the Bureau elected, on its own motion, to violate its own service and renewal rules when it treated the Revere letter as a petition for reconsideration. As examples of alleged violations, ADF notes that the Revere letter had not been served on ADF at the initial time of filing with the Bureau, in violation of Section 1.47 of the Commission's Rules, nor had it initially been filed at the FCC's offices in Washington, D.C., in violation of Section 1.106(i) of the Commission's Rules. In addition, when ADF was served, it states that it was not provided with any of the attachments to the Revere letter. ADF further argues that the Revere Police Department ignored the Commission's renewal rules because the Revere Police Department filed its short-form application after its licenses had expired. 8. At the outset, we reject ADF's argument that the Bureau ignored the applicable service rules by treating the Revere letter as a petition for reconsideration of ADF's grant, even though the Revere letter had not initially been served on ADF. The Bureau has delegated authority to waive the Commission's procedural rules with respect to pleadings. After receiving the Revere letter and performing a balancing test of public interest considerations versus any administrative shortcomings on the part of the City of Revere, the Bureau released a Public Notice, seeking comment on the Revere letter. The Revere Public Notice made the full text of the Revere letter and its attachments available for viewing to the public, and provided interested persons with an opportunity to comment on the Revere letter. The Revere Public Notice also provided ADF with an opportunity to appeal the Revere letter, protecting ADF's due process rights. 9. We additionally reject ADF's argument that the Revere Police Department improperly served ADF, by not serving ADF with the attachments to the Revere letter. ADF had been placed on notice by the Revere Police Department of the existence of the attachments to the Revere letter because the Revere Police Department had timely served ADF with the first page of the Revere letter (the text of the letter minus the eight page attachment) in accordance with the Revere Public Notice. The first page noted that the Revere Police Department had "been issued a Special Temporary Authorization (enclosed) . . . ." The Revere letter further stated, in paragraph five: "We have also enclosed one FCC Form 1034G, three FCC Form 574R and three FCC Form 574N." ADF knew, therefore, that the attachments to the Revere letter consisted of the STA, and various return notices and renewal request forms. Thus, ADF could have obtained copies of the attachments by contacting the Revere Police Department directly or by viewing them in the Commission's Public Reference Room. 10. Ex Parte Violations. ADF alleges that the Revere Police Department and APCO willfully violated the Commission's ex parte rules. As an example, ADF stated that a letter from APCO to the Bureau was not served on ADF at the time the letter was filed with the Bureau. The letter from APCO to the Bureau concerned possible alternative frequencies for use by the City of Revere. APCO's presentation to the Bureau was an exempt ex parte presentation since it was between Commission staff and an advisory coordinating committee member with respect to the coordination of frequency assignments concerning a station in the private land mobile radio (PLMR) services. Therefore, we conclude that ADF's argument that the Bureau permitted violations of the Commission's ex parte rules lack merit. 11. Frequency Coordination. In the instant case, public safety frequencies were allocated to a non-public safety entity. Arguments were made, inter alia, that the frequency coordination process was flawed. PCIA alleges that APCO may have violated its responsibilities with respect to non-discriminatory service and processing of applications on a first-come, first-served basis. A similar argument was raised by ADF, when it noted that APCO had filed the City of Revere's application with the Bureau on September 29, 1997, the same day that the Revere Police Department had filed its applications with APCO. ADF states, in pertinent part: Unless APCO had no other applications pending at its offices at the time, this is a clear violation of the Commission's mandate that frequency advisory committees process applications in order of receipt. Further, APCO's coordination of the application, with full knowledge of ADF's prior filed application, was improper, as it is impossible to provide frequency coordination for two stations so close together. This clearly indicates APCO's violation of the Commission's requirement that frequency advisory committees provide non-discriminatory service to all applicants. 12. Both PCIA and ADF are referring to the Commission's requirement that frequency coordinators provide non-discriminatory service to all applicants. In 1986, the Commission modified the procedures by which most of the frequencies allocated to the PLMR services are assigned to individual applicants. The modified procedures were set out in the Report and Order specifically stating: "We recognize, however, that processing in order of receipt does not necessarily lead to coordinator actions or disposals in that same order. Some coordinations are more complicated than others and therefore require greater time to complete." Consequently, we are not persuaded that filing on the same day is necessarily indicative of an impropriety. We find, therefore, that PCIA and ADF have not provided sufficient evidence of a violation. B. Waiver Analysis 13. To obtain a waiver of the Commission's Rules, a petitioner must demonstrate either (a) 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 (b) 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. In exercising its waiver authority, however, the courts have held that the Commission must explain why deviation better serves the public interest and articulate the nature of the special circumstances. We conclude that Revere has justified a waiver of the Commission's Rules under the second standard. Specifically, we find that, in view of the unique factual circumstances, application of the rules would leave the Revere Police Department with no reasonable alternative, and would be contrary to the public interest. Our basis for this conclusion is set forth below. 14. In the instant case, the Revere Police Department has explained the public safety need for the exception desired, demonstrated that unique circumstances are involved, and noted that irreparable injury would result if it were to lose exclusive access to its public safety frequency. The record in this proceeding indicates that there are no other public safety allocations currently available in the Revere Police Department's geographic area. We agree and find that granting the Petition and reinstating the Revere Police Department's license to operate Station KCZ967 is consistent with the public interest. We find that appreciable and irreparable harm will result if the Revere Police Department, serving a city with a population of 43,000 residents, no longer has dedicated access to its primary public safety channel. In this connection, we note Revere Police Department's contention that all other channels licensed to various departments within the City of Revere are inadequate for primary emergency use. Because no satisfactory alternate channel is available, we are exercising our statutory authority to restore the Revere Police Department's license on frequency pair 470/473.8625 MHz. 15. Unique Circumstances. We believe that this matter involves unique factual circumstances which warrant the exercise of our discretion in waiving our rules regarding reinstatement. In its comments, PCIA states that it had certified ADF's application, at issue in this proceeding, and believes that it followed all applicable Commission Rules regarding the submission of the application. PCIA requests that Revere's Petition be dismissed, citing a 1991 Commission rule making proceeding, wherein the Commission stated that licensees engaged in public safety activities may not exercise a lesser degree of diligence in complying with the Commission's renewal procedures. PCIA did not, however, address the footnote to this statement, which reads: We will continue to retain discretion in extraordinary circumstances to waive our reinstatement/late-filed renewal rules if warranted by particular circumstances. See Memorandum Opinion and Order, 4 FCC Rcd 4488 (1989). 16. The City of Revere's response to the Bureau's request for additional information reflected 24-hour public safety emergency use of frequency pair 470/473.8625. The response indicates that the Revere Police Department operates 190 radios, to provide essential emergency police services to the community, serving approximately 43,000 residents. According to Revere, the channel is used extensively around the clock for the dispatch of police officers to life-threatening emergencies, felony crimes in progress, general law enforcement, civil and domestic disturbances, medical emergencies, rescues, assistance to other law enforcement agencies, traffic and crowd control, and various public service requirements. It states that the channel is broadcasting communications on the average of forty-one minutes per hour during peak periods of activity, currently under the operating authority of an STA. In addition to the units operated by the Police Department, many of the surrounding cities and towns and the state police have radios that operate on the Revere Police Department police channel and use approximately one hundred radios during emergencies and events connected to law enforcement activities related to the City of Revere. 17. In addition, the Revere Police Department indicates in its response to our information request that several other Revere governmental entities also engage in public safety communications, but their channels are in regular use and are inadequate for primary emergency use by the Revere Police Department. The Revere Fire Department, for example, currently operates fifty radios on its frequencies to dispatch fire apparatus and ambulances in response to approximately 6,000 emergency calls per year, with extensive use during a 24-hour period. The Department of Public Works currently operates fifty radios on a 2-watt frequency to dispatch vehicles for maintenance, cleaning and repair of the roadways, hazardous materials mitigation and snow removal. The Emergency Management Department operates an additional forty-one portable radios on the channel licensed to the Department of Public Works. The channel licensed to the Department of Emergency Management is used by all departments within the City of Revere during emergency conditions created by weather incidents. The City of Revere is a coastal community, and is particularly vulnerable to severe weather events, due to its geographical position to the Atlantic Ocean. This channel is used by the City of Revere Police Department, the Fire and Public Works Departments, the Massachusetts State Police, Massachusetts Emergency Management Agency, Massachusetts Department of Public Works, Massachusetts National Guard, a contract ambulance company, and the surrounding cities and towns that send units for assistance. 18. Prior to filing its Opposition and receiving a copy of the response to our information request, ADF had been placed on notice, by being served with the Revere letter, that the frequency pair at issue had historically been and continued to be used as a vital communications link to personnel in cases of emergency involving danger to the lives and properties of the 43,000 City of Revere residents. The Revere letter also informed ADF that the Revere Police Department had invested a considerable amount of money in equipment, including portable and mobile radios, and had been using the frequency pair at issue for over twenty years. Based on the totality of the circumstances, we believe that to revoke the use of the frequency pair would adversely affect the City's ability to fulfill its public safety and law enforcement missions. 19. Lack of Reasonable Alternatives. In response to the Bureau's request for information relating to any attempts by the Revere Police Department to obtain alternate frequencies, the Revere Police Department responded that it had attempted to secure a compatible UHF frequency for use by the Revere Police Department, by submitting an application to APCO. Due to the congestion and limited spectrum available, however, the Revere Police Department was unsuccessful in securing a usable 25 kHz wideband channel compatible with its existing communications infrastructure. Since most of the radio communications equipment in use by the Revere Police Department is not compatible with 12.5 kHz narrowband technology, the Revere Police Department would have to replace 80% of its radio equipment to make the equipment narrowband compatible, at an estimated cost of approximately $200,000.00. The Revere Police Department believes that this expense would place an unreasonable hardship and financial burden on the city, which is currently experiencing a severe financial constraint. Moreover, Revere contends that safety would be compromised since the mobile units of other departments within the City of Revere are not capable of narrowband technology and would not be able to communicate with the Revere Police Department on narrowband channels. 20. Public Interest. After full consideration of the record in this proceeding we find that strict application of the Commission's rules under the circumstances presented here would be contrary to the public interest. In this connection, we note that the petitioner is a public safety entity. Further, we conclude that the petitioner has demonstrated an extraordinary circumstance, lack of reasonable alternatives, and resultant irreparable harm if the requested relief is not granted. 21. The Bureau's decision in this case is consistent with Commission precedent in the similar matter of the New York City Transit Authority (NYC Transit). NYC Transit received three Commission authorizations for 20 trunked channels in the Land Transportation Radio Service. Under the provisions of Section 90.629 of the Commission's Rules, NYC Transit was afforded three years in which to place its system into operation. The Bureau notified NYC Transit of its failure to meet the conditions of its authorizations, and informed NYC Transit that its licenses had been cancelled. NYC Transit timely filed a petition for reconsideration of the cancellation and requested reinstatement of its license. The Bureau granted NYC Transit's Petition for Reconsideration and Reinstatement, on the basis that NYC Transit's proposed system was unique, involving the safety of millions of passengers on thousand of buses, and that it was totally dependent upon retention of the 20 channels which were at issue. While acknowledging procedural and other deficiencies on the part of NYC Transit, the Bureau determined that significant public interest considerations favored reinstatement of the license. 22. Comtran Associates, Inc. (Comtran), an existing licensee of a 20 channel 800 MHz trunked Specialized Mobile Radio (SMR) station in the New York City area, filed an Application for Review of the Bureau's grant to NYC Transit. Comtran asserted that it was at the top of the waiting list for reclaimed trunked SMR channels in the New York City area, but was unlikely to receive any channels through the Commission's waiting list procedure. Comtran argued that its only source of additional channels under the circumstances was through the Commission's intercategory sharing procedure. On review, the Commission held that "public interest considerations outweighed administrative shortcomings." In summary, the Commission affirmed the Bureau's reinstatement action and denied Comtran's Application for Review, concluding that the Bureau's decision was in the public interest. 23. Similarly, in 1997, in the case of Keller Communications, Inc. v. Federal Communications Commission (Keller), the United States Court of Appeals for the D.C. Circuit upheld the Commission's decision to waive the defects in a city's application. The Court held that the Commission may exercise its waiver authority to fulfill its mandate to promote public safety of life and property. In Keller, the Commission waived defects in the application of Lewisville, Texas, to add a neighboring town's conventional radio channel to the city's trunked radio system, based primarily upon public safety considerations. The Commission found that absent the waiver, the City of Lewisville would have "an overloaded public safety communications system" and also would be unable to accommodate the public safety needs of a neighboring community whose communications services it had agreed to assume. Under these circumstances, the Court ruled that the waiver was well within the Commission's authority. The Keller Court cited the Commission's waiver regulations, which provide that agency rules "may be suspended, revoked, amended, or waived for good cause shown, in whole or in part, at any time by the Commission." 24. The Bureau's decision in this case is also consistent with the Universal Licensing System reinstatement approach recently adopted by the Commission, where the Commission stated that its treatment of late-filed renewal applications should take into consideration the complete facts and circumstances involved, including the length of the delay in filing, the performance record of the licensee, the reasons for the failure to timely file, and the potential consequences to the public if the license were to terminate. 25. While we conclude that the totality of the circumstances warrants reinstatement of Revere's license for the subject frequency pair, we nonetheless strongly caution licensees that the Bureau's decision in this particular matter does not excuse entities, including public safety entities, from complying with the Commission's Rules regarding filing renewal applications in a timely manner. We emphasize that even if a licensee is engaged in public safety activities, a lesser degree of diligence in complying with our renewal procedures is not justified. The grant of the instant Petition is in the public interest and takes into consideration petitioner's critical need for the frequencies and all of the facts and unique circumstances surrounding the particular extraordinary situation before us. IV. CONCLUSION AND ORDERING CLAUSES 26. We find that setting aside ADF's authorization to operate on frequency pair 470/473.8625 MHz is in the public interest. To fulfill the Congressional mandate of protecting the public safety, we believe that setting aside ADF's November 19, 1997, grant and reinstating the City of Revere's authorization to operate Station KCZ967 is necessary and well within the Commission's authority. We conclude, therefore, that a grant of Revere's Petition and reinstatement of its authorization is warranted given the extraordinary situation before us. We believe to deny City of Revere's requested relief would create an emergency situation in which police, fire and medical units would lose communications service which is vital to the health and safety of an entire populous community. 27. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. 1.106, the petition for reconsideration filed by the City of Revere, Massachusetts on December 9, 1997, IS HEREBY GRANTED. Additionally, the application filed by the Revere Police Department to continue public safety operations on frequency pair 470/473.8625 MHz, under call sign KCZ967, IS HEREBY GRANTED. ADF's authorization to operate Station WPLQ307 is HEREBY SET ASIDE. 28. 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 Kathleen O'Brien Ham Deputy Chief, Wireless Telecommunications Bureau