******************************************************** 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 ) ) Washington, D.C. Metropolitan Area) Gen. Docket No. 90-7 Regional Public Safety Plan ) (Region 20) ) ) Philadelphia Metropolitan Area ) Gen. Docket No. 89-573 Regional Public Safety Plan ) (Region 28) ) ) ORDER Adopted: October 21, 1999 Released: October 22, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By this Order, we resolve certain long-standing disputes among Regions 20 and 28, and with other related regional and governmental entities. Pending before us is an "Inter-Regional Channel Re- Assignment Agreement" (Re-Assignment Agreement) submitted on September 2, 1999, by the Region 20 Public Safety Regional Plan Review Committee (Region 20 Committee), the Region 28 Public Safety Planning Update Committee (Region 28 Committee), and the Region 36 Regional Plan Review Committee. Also submitted were a "Second Addendum to the Petition to Amend the Region 20 821 MHz Public Safety Plan" (Region 20 Second Addendum), and a request from the Region 28 Committee to accept the Region 28 Fifth Filing Window assignments that were included in the Re-Assignment Agreement. On September 3, 1999, the Re-Assignment Agreement was placed on public notice for comment. In addition, there are several pleadings related to outstanding disputes between Regions 20 and 28, including: (a) a Petition for Emergency Declaratory Ruling, filed by Region 20; (b) a Motion for Emergency Injunctive Stay, filed by Region 20; (c) a Petition for Declaratory Ruling, filed by Cumberland County, New Jersey, a Region 28 member; (d) a request to approve the most recent amendment to the Region 20 regional plan, filed by Region 20; and (e) a petition, filed by the Commonwealth of Pennsylvania (Pennsylvania), a Region 28 member, to modify or revoke licenses issued to Region 20 member Carroll County, Maryland (Carroll County). 1. For the reasons set forth herein, we approve the Re-Assignment Agreement and Region 20 Second Addendum, grant the Region 28 request regarding its Fifth Filing Window assignments, dismiss the Petition for Emergency Declaratory Ruling, deny the Motion for Emergency Injunctive Stay, and dismiss the Pennsylvania Petition. We find that Regions 20 and 28 have reached a reasonable settlement of their dispute, that this settlement fulfills the requirements established in the December 1996 Order, and that this settlement and our approval thereof are in furtherance of the public interest. II. BACKGROUND 2. Since at least 1994, the Region 20 Committee, the Region 28 Committee, and other affected entities have attempted to resolve disputes over frequency assignments, regional planning coordination procedures, and alleged cross-border radio interference. These disputes arose out of the management by the respective regional planning committees of the six megahertz of radio spectrum in the 821-824/866-869 MHz bands (800 MHz band). A. The Region 20 Plan and Amendment 3. Region 20 established an operating committee that developed and filed its regional plan with the Commission. The Region 20 Plan designated interoperability channels, state-wide channels and guard band channels in the 800 MHz band spectrum over which it had authority. The plan also specified certain operating and application procedures to be used in the region, created a Regional Plan Review Committee and made specific channel assignments to region members. On November 25, 1994, Region 20 submitted an amendment to its plan which included additional frequency assignments arising from its second filing window (Region 20 Amendment). The Region 20 Amendment added several frequency assignments to the Region 20 Plan, including assigning Channel Nos. 686, 690, 693, 706, 709, 711, 713, 720, and 748 to Carroll County. The Region 20 Amendment generated opposition comments after it was placed on public notice. 4. On October 2, 1995, Carroll County filed an application for an 800 MHz public safety radio system to be operated in part on the nine channels assigned to Carroll County in the Region 20 Amendment. Attached to this application was a letter of "official notification of frequency coordination," dated April 29, 1994, signed by the Maryland/Washington, D.C. APCO frequency coordinator and the Chairman and Vice Chairman of the Region 20 Committee. Acting on this application, the Commission issued licenses to Carroll County (the Carroll County licenses) on November 2, 1995, for Call Sign WPIQ515, and on December 13, 1995, for Call Sign WPIU695, covering the nine channels assigned to Carroll County in the Region 20 Amendment. 5. On December 9, 1996, the Chief of the Private Wireless Division (Division) of the Wireless Telecommunications Bureau and the Deputy Chief of the Office of Engineering and Technology approved the Region 20 Amendment, subject to three conditions. These conditions were: (a) that Region 20 submit a detailed statement by March 30, 1997, which established satisfactory inter-regional coordination procedures acceptable to Region 28; (b) that Region 20 file a list describing the status of construction and operation of stations licensed on the new channels set forth in the Region 20 Amendment; and (c) that Region 20 file a change of the designation of Channel 720 as the "MCT Medical Services" channel to a more appropriate channel designation. 6. On January 30, 1997, in response to the December 1996 Order, Region 20 submitted a pleading in the current proceeding (Region 20 January 1997 Response) describing the construction and operational status of the channels contained in the Region 20 Amendment and containing a commitment to change the Channel 720 designation to one of the names suggested in the December 1996 Order. 7. In March 1997, Region 20 requested and was granted an additional forty-five days, from March 30, 1997 to May 14, 1997, within which to come to an agreement with Region 28 regarding satisfactory inter-regional coordination procedures. On May 14, 1997, Region 20 submitted its second response to the December 1996 Order. In this pleading, Region 20 represented that although Regions 20 and 28 were in agreement with respect to the basic concepts of inter-regional coordination, because of disagreements over the Carroll County licenses, Region 28 was unwilling to sign the inter-regional coordination agreement attached to the response. Region 20 further detailed Region 28's objections to the Carroll County licenses and Region 20's arguments against the objections. 8. Notwithstanding the lack of concurrence from Region 28 to the regional coordination procedures described in the Region 20 May 1997 Response, Region 20 represented that it had made all reasonable efforts to secure such concurrence, and therefore asked the Commission to provide an unconditional approval of its plan amendment. Region 20 further represented that upon the issuance by the Commission of an "unconditional" order removing the conditions from the December 1996 Order, Region 20 would incorporate the inter-regional coordination procedures outlined in the May 1997 Response into its own plan and it would also withdraw its Declaratory Ruling Petition. 9. By letter of June 23, 1997, Region 28 replied to the Region 20 May 1997 Response. Region 28 stated that it disagreed with Region 20's arguments regarding the disputes concerning the Carroll County licenses. Region 28 indicated that both Regions had agreed on inter-regional coordination procedures to be observed in the future, but stated that it was unwilling to execute the coordination agreement with Region 20 until Pennsylvania and Carroll County resolved their differences concerning the frequency conflict. 10. On December 5, 1997, Cumberland County filed with the Commission a Petition for Declaratory Ruling (Cumberland Petition). Cumberland asserted that the Carroll County licenses were wrongfully granted and, unless voided, would cause harmful interference to Region 28 stations. Accordingly, Cumberland requested that the Commission void the conditional approval of the Region 20 Amendment, ascertain any conflicts that exist between Region 20 and 28 licensees, and propose resolutions to the conflicts. 11. On August 21, 1998, Region 20 filed with the Commission a pleading that included a document entitled "Inter-Regional Coordination Procedures Agreement" (Region 20/28 coordination agreement) signed by the chairmen of both the Region 20 and Region 28 committees. In this pleading, Region 20 renewed its request that the Commission issue an unconditional Order removing the conditions from the December 1996 Order, and repeated its offer to incorporate the Region 20/28 coordination agreement into its own plan and to withdraw its Declaratory Ruling Petition. 12. On September 3, 1998, Pennsylvania filed a pleading in which it opposed the "unconditional" approval of the Region 20 Amendment until such time as the problems of the Carroll County licenses that were assigned in that amendment were resolved. Region 20 filed a response to the Pennsylvania Opposition dated September 18, 1998 (Region 20 September 1998 Response). In its September 1998 Response, Region 20 argues that the Pennsylvania Opposition is "the equivalent of an injunctive stay upon Carroll County, Maryland's licenses" which Region 20 asserts should be rejected because it fails to meet the four-pronged test required under Federal law for issuance of a writ of injunction. 13. On September 28, 1998, Pennsylvania filed a formal petition (Pennsylvania Petition for Revocation), based on the arguments contained in the Pennsylvania Opposition, seeking the initiation of revocation or modification proceedings against the Carroll County licenses. In response to the Pennsylvania Petition for Revocation, Region 20 filed a pleading in which it asked the Commission to "delete" the Pennsylvania pleading. Carroll County filed a pleading in opposition to the Pennsylvania Petition for Revocation, asking the Commission to deny the Pennsylvania Petition for Revocation, and, as partial grounds, incorporating the Region 20 September 1998 Response. B. The Region 28 Plan 14. The Region 28 plan was originally developed by the Region 28 Committee and filed with the Commission in 1989. The original plan contained channel assignments to three counties in Delaware, twelve counties in New Jersey, and twenty-eight counties in Pennsylvania. In 1996, Region 20 complained to Region 28 about potential interference to Region 20 stations in Maryland from some of the Delaware stations. In a letter dated July 31, 1996, the Chairman of the Region 20 Committee stated that Region 20 had reviewed Motorola literature and FCC licensing data for a Delaware state radio system and "using this data, extrapolated operational 40 dB contours." From this extrapolation, Region 20 concluded that when constructed, the Delaware system would cause harmful interference to the northern and eastern areas of Region 20. In a letter dated August 29, 1996, Region 28 responded to Region 20's assertions by saying that the Delaware system, "when fully implemented and tested, will be in compliance with the mandates of the Region 28 plan." Region 28 further stated that the system would either "not exceed +40 dB at 3 miles beyond the State's border," or the contractor would obtain concurrences from affected regions to operate the system with protection contours of +5 dB for co-channel protection and +25 dB for adjacent channel protection. Finally, Region 28 asserted that if concurrences were required under this approach but not forthcoming from adjacent regions, the contractor was prepared to apply the resources necessary to meet the requirements of the adjacent region and the Region 28 Plan. 15. On December 12, 1996, Region 20 submitted the Region 20 Declaratory Ruling Petition and the Region 20 Motion for Stay. The Region 20 Declaratory Ruling Petition asserted that the Region 28 Plan lacked adequate inter-regional interference protection criteria and, on that ground, the Commission should order Region 28 when making channel assignments to abide by the protection criteria contained in the Region 20 Plan. The Region 20 Motion for Stay alleged that the design of the 800 MHz radio system proposed by the State of Delaware, under licenses that had been granted by the Commission according to accepted channel assignments in the Region 28 Plan, if built and operated as proposed, "would exceed the 'three (3) mile outside of boundary rule' of the Region 28 Plan," and would cause harmful interference to stations in Region 20. Accordingly, Region 20 asked the Commission to prohibit further construction of the Delaware system until Delaware modified its system to operate within the requirements of the Region 28 Plan and obtained additional concurrence from adjacent regions. C. Settlement Agreement 16. On September 2, 1999, the Region 20 Committee submitted the Re-Assignment Agreement which presented proposed resolution of various inter-regional channel conflicts, particularly between the Commonwealth of Pennsylvania and Carroll County, Maryland. In addition, the Region 28 Committee and the Region 20 Committee filed proposed amendments to their regional plans associated with the implementation of the proposals presented in the Re-Assignment Agreement. On September 3, 1999, we released a public notice seeking comment on the Re-Assignment Agreement and the associated proposed amendments to the Region 20 and Region 28 Plans. In Response to this public notice, we received one request for extension of time, two comments, and two reply comments. 17. On September 17, 1999, the deadline for submitting comments, the City of Philadelphia (City) requested an extension of time for the filing of comments to September 27, 1999, with reply comments due October 4, 1999, in order to permit the City to analyze data supplied by Chester County, Pennsylvania's technical consultant. It appears that this data would be in furtherance of a mutually agreeable solution for a transmitter-combiner problem being experienced between Chester County and the City. 18. On September 17, 1999, Pennsylvania submitted comments indicating that the Re-Assignment Agreement addresses its interference concerns, and supporting approval of the Re-Assignment Agreement and the Region 28 Fifth Filing Window. In addition, the State of Delaware, Office of Information Services (Del. OIS), submitted comments describing co-channel conflicts with four channels in the State's system (viz., Channels 642, 678, 730, and 732) involving frequencies either currently licensed or previously licensed to the State of Maryland. The Del. OIS questions whether renewal of three State of Maryland licenses (namely, Stations WPFG834, WPFG842, and WPFG858) is in the public interest, expresses an interest in the reallocation of certain channels for which the State of Maryland did not seek renewal to Region 28, and states that the completion of its system may require additional channels. Finally, the Del. OIS supports Commission approval of the modified regional plans so as to resolve the remaining co- channel conflicts with its system and, therefore, permit dismissal of Region 20's Motion for Emergency Injunctive Stay against its system. 19. On September 24, 1999, the State of Maryland responded to Delaware's comments regarding the renewal of Stations WPFG834, WPFG842, and WPFG858. It rejects the assertion that construction and operation of the licenses would present the potential for co-channel interference with Delaware's system because the sites are all located West of the City of Baltimore. Also, on September 24, 1999, the State of Delaware Department of Public Safety submitted comments asking that we consider the State of Delaware's needs for 800 MHz frequencies to complete the installation of a fully effective, statewide 800 MHz system. 20. On September 28, 1999, the Region 20 Committee filed its Motion to Dismiss Commonwealth of Pennsylvania Petition for Revocation. The Region 20 Committee requests dismissal, without prejudice, of the Pennsylvania Petition for Revocation. The Region 20 Committee reiterates its objection to Pennsylvania's characterization of Carroll County's licenses as improperly granted and the implication that the Region 20 Committee did not comply with Commission procedures. It also objects to the contention that the alleged interference has delayed construction of the statewide system. On October 8, 1999, Pennsylvania filed its Response to Motion to Dismiss Filed by Region-20 821 MHz Public Safety Regional Plan Review Committee. Pennsylvania does not object to the Region 20 Committee's motion to dismiss its Petition for Revocation if and only if we approve the Re-Assignment Agreement. Until such action, however, Pennsylvania contends that the Region 20 Committee's motion is premature. III. DISCUSSION 21. At various times during the course of this proceeding, the Division has attempted to assist the parties in their efforts to reach mutually agreeable solutions to the interrelated disputes. Through face-to- face meetings, conference calls, letters and formal orders the Division has repeatedly urged Regions 20 and 28 and their constituent members to develop reciprocal and mutually agreeable procedures for undertaking their responsibilities for managing and assigning the 800 MHz band National Plan spectrum in their respective regions. The Division is well aware of the difficulties faced by the many technically trained and skilled professionals who devote a great many hours as unpaid volunteers in accomplishing the work of the regional planning committees. This work is invaluable to the public safety community and the officers in the field who rely on the communications systems made possible in many areas only by the spectrum allocated to public safety use in the 800 MHz band. While it is unfortunate that the issues raised in the course of these proceedings have resisted solution for a long period of time, we nonetheless believe that the proposed resolution offered as a result of the joint efforts of Regions 20, 28 and 36 -- namely, the Re- Assignment Agreement -- is in furtherance of the public interest. In this connection, we deny the City's request for an extension of time to submit comments. Our action is consistent with the Commission's policy that extensions of time are not routinely granted. We believe that an extension of time is not warranted in these circumstances because this matter has remained unresolved for an extended period of time and that further delay, especially when we are presented with a solution that is mutually agreeable to the involved regions, would not be in the public interest. Further, we note that the problem the City seeks to remedy does not appear to be one which was previously raised in the context of this matter. Thus, we believe that it would be more prudent for the City to continue to pursue this matter with its regional planning committee. Moreover, based on the comments received in response to the Re-Assignment Agreement, we conclude that the public interest would be served by approval of the Re-Assignment Agreement and the associated proposed plan amendments because they resolve a longstanding controversy and address past, present, and future public safety communications needs in Regions 20, 28 and 36. A. The Region 20 Proceeding 1. Second Amendment 22. As previously noted, the Region 20 Amendment was accepted by the Commission in the December 1996 Order, subject to the fulfillment of three conditions. The Division has previously informed the parties hereto, and we confirm here, that two of the conditions were fulfilled by the filing of the Region 20 May, 1997 response. The last remaining condition required the filing of a detailed statement establishing inter-regional coordination procedures satisfactory to Region 28. We find that this condition was satisfied by the filing of the Region 20 August, 1998, response containing a copy of the Region 20/28 coordination agreement signed by the Chairman of Region 28. As a result, we conclude that all three conditions set forth in the December 1996 Order for approval of the Region 20 Amendment have been fulfilled. Accordingly, we conclude that the Region 20 Amendment should be, and by the terms of this Order is, fully accepted and approved, with all conditions now removed because they have been fulfilled. Further, we deny the Cumberland Petition to the extent it seeks voiding of the conditional approval of the Region 20 Amendment and set aside of any licenses. 2. Second Addendum to the Petition to Amend Region 20 Plan 23. In connection with the Re-Assignment Agreement, the Region 20 Committee has requested approval of revised frequency matrix changes to the Region 20 Plan. For the reasons stated above regarding the Re-Assignment Agreement, we approve these amendments to the Region 20 Plan. B. The Region 28 Proceeding 1. Region 28 Plan 24. The Region 20 Declaratory Ruling Petition, asserting that the Region 28 Plan lacked adequate inter-regional interference protection criteria and on that ground requesting that the Commission order Region 28 to abide by the inter-regional protection criteria contained in the Region 20 Plan, is dismissed as moot. The finalization of the Region 20/28 coordination agreement and the Region 20 Committee's statement to withdraw such Petition if certain actions were taken regarding the Region 20 Plan amendments resolves these issues without the need for further Commission action. 25. In connection with the Re-Assignment Agreement, the Region 28 Committee has requested approval of revised frequency matrix changes to the Region 28 Plan. For the reasons stated above regarding the Re-Assignment Agreement, we approve these amendments to the Region 28 Plan. 2. State of Delaware 800 MHz System 26. In its Motion for Stay, Region 20 requests that we prohibit further construction of the State of Delaware's radio station authorizations, WPIQ-290, WPIQ-294 and WPIZ-596. Region 20 asserts that these stations, licensed in 1989, but at the time of the motion not yet constructed, would, when completed and operational, generate 40 dB signal contours as far as 50 miles over the Delaware state boundary into eastern Maryland. Consequently, Region 20 further asserts that these stations would thereby cause harmful interference to licensees in Region 20. Region 20 bases its assertions on its own "research of the Delaware system, based on valid Commission licensing data." 27. Moreover, Region 20 asserts that cross-border emissions of the strength described would violate Section 90.621(g) of the Commission's Rules as well as the requirement in the Region 28 Plan that cross-border emissions not exceed 40 dB further than three miles into adjacent Regions, the so called "three mile outside of boundary" rule in the Region 28 Plan. Region 20 apparently acknowledges that it submitted a signed concurrence agreeing to the original Region 28 Plan containing the frequencies assigned to Delaware. Region 20 asserts, however, that it did not thereby consent to Delaware operating in such a fashion as to exceed the three mile out of boundary rule into Region 20. 28. We agree with Region 20 that Delaware must operate its licensed public safety radio stations in the 800 MHz band in accordance with the Region 28 Plan and the Commission's Rules. To date, we have not received any formal notification that any public safety entity in Region 20 is experiencing harmful interference as a result of Delaware's operations. Thus, we have no basis on which to conclude that Region 28's assurances to Region 20 on this subject were untrue. Further, we note that Region 20 concurred with the original Region 28 Plan Amendment designating the subject frequencies for Delaware's use. Accordingly, based on the record before us, we deny the Region 20 Motion for Stay, without prejudice to Region 20's right to renew their motion, or seek other relief from wrongful or harmful operation of these stations, should it have sufficient evidence upon which to base a request for such relief. 29. In its comments regarding the Re-Assignment Agreement, the Del. OIS requests that we take certain actions regarding the licensing and use of certain frequencies in Region 20. We believe that this request is beyond the scope of the matters currently before us. Moreover, we believe that resolution of this matter should first be pursued through coordination between the Region 20 and Region 28 Committees, particularly in light of the coordination procedures which the committees have instituted as a result of the resolution of this matter, and be brought to the Commission only after such coordination has failed. In this connection, we encourage the Region 20 and 28 Committees to work cooperatively in an attempt to assist the State of Delaware in its efforts to fully implement its 800 MHz statewide system. Accordingly, based on the record before us, we decline to take action on the matters raised in the Del. OIS comments filed in this proceeding, without prejudice to Del. OIS's ability to seek relief in the future should the suggested inter-regional coordination efforts fail. IV. ORDERING CLAUSES 30. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 90.16 of the Commission's Rules, 47 C.F.R.  90.16, that the Inter-Regional Channel Re-Assignment Agreement filed on September 2, 1999 IS APPROVED. 31. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 90.16 of the Commission's Rules, 47 C.F.R.  90.16, that the Region 20 Plan Amendment filed on November 25, 1994, and modified on January 25, 1996, IS APPROVED. 32. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 90.16 of the Commission's Rules, 47 C.F.R.  90.16, that the Region 28 Plan Amendment filed on August 12, 1999 IS APPROVED. 33. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, that the Petition for Emergency Declaratory Ruling filed by Region 20 on December 12, 1996, IS DISMISSED as moot. 34. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, that the Motion for Emergency Injunctive Stay filed by Region 20 on December 12, 1996, IS DENIED. 35. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, that the Motion to Delete filed by Region 20 on November 3, 1998, IS DISMISSED. 36. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, that the Petition for Declaratory Ruling filed by Cumberland County, New Jersey, IS DENIED. 37. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, that the Motion to Delete filed by Region 20 on November 3, 1998, IS DISMISSED. 38. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, that the Petition for Revocation or, in the alternative, for Modification of Licenses filed by the Commonwealth of Pennsylvania on Septmeber 28, 1998, IS DISMISSED. 39. 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 J:\PSPWD\FERNDZ\reg20-28.rem (02/22/99 (Clark); Rev. 09/29/99) cc: D. Terry H. Zeiler R. Melson J. Kowalski J. Borkowski M. Shultz K. Hosford S. Stone S. Linn J. Fern ndez