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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In Re Application of ) ) BOROUGH OF SAYREVILLE, NEW JERSEY) ) File No. A028262 For a Public Safety License ) Pursuant to Section 337 of the ) Communications Act of 1934, as Amended) ORDER Adopted: November 17, 1999 Released: November 18, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION AND EXECUTIVE SUMMARY 1. We have before us an Application and Request for Waiver (Waiver Request), filed by the Borough of Sayreville, New Jersey (Sayreville or Petitioner). Sayreville seeks a waiver, pursuant to Section 337 of the Communications Act of 1934, as amended, of any and all applicable provisions of Parts 22 and 90 of the Commission's Rules in order that it may use a Public Mobile Services frequency for mobile high speed data communications. Associated with the Waiver Request is an Application for Mobile Radio Service Authorization requesting assignment of the frequency 470.0125 MHz. For the reasons stated herein, Sayreville's Waiver Request is denied, and the associated license application is dismissed. II. BACKGROUND 2. On October 28, 1998, Sayreville filed its Waiver Request and Application for Mobile Radio Service Authorization. On February 24, 1999, the Licensing and Technical Analysis Branch (Branch) of the Public Safety and Private Wireless Division returned Sayreville's application and requested additional information. Specifically, Sayreville was asked (a) to submit a brief description of how the channel would be used, (b) to provide a statement from the frequency coordinator that there are no other Part 90 public safety channels available to the Petitioner for its system, and (c) to submit an analysis showing that the proposal was consistent with the protection criteria for all co-channel and adjacent channel television stations. 3. Sayreville replied to the Branch's first request by providing a copy of a letter stating that Sayreville was applying for a stand-alone channel for high speed data use, and that such channel would link the new Computer Assisted Dispatch system to mobile data units in vehicles operated by the police and fire departments, and other Sayreville agencies. Sayreville also submitted a copy of a letter from George Johnson, APCO Automated Frequency Coordination, Inc. (APCO Coordinator), stating that there were no frequencies available in the public safety spectrum for Sayreville's use. This letter also stated that there are no co-channel TV assignments, but the proposed site of the station did not meet the distance criteria for adequate protection for Station WLYH, a Channel 15 TV station in Lancaster, Pennsylvania. Our analysis, however, concludes that the proposed station does meet the distance criteria. The APCO Coordinator concluded that, because no public safety frequencies are available to the Petitioner, Sayreville requested the frequency 470.0125 MHz, an unused frequency. 4. On May 28, 1999, the Commission released a Public Notice, soliciting comments on the Petitioner's Waiver Request. No comments or reply comments were filed. III. DISCUSSION 5. In the Balanced Budget Act of 1997, Congress provided public safety entities with a statutory means of obtaining a waiver of the Commission's Rules to the extent necessary to permit use of unassigned frequencies for the provision of public safety services. Section 3004 of the Balanced Budget Act amended the Communications Act to add Section 337. Subsection (c) of Section 337 of the Act, 47 U.S.C.  337(c), provides as follows: (c) Licensing of Unused Frequencies for Public Safety Services.-- (1) Use of unused channels for public safety services.--Upon application by an entity seeking to provide public safety services, the Commission shall waive any requirement of this Act or its regulations implementing this Act (other than its regulations regarding harmful interference) to the extent necessary to permit the use of unassigned frequencies for the provision of public safety services by such entity. An application shall be granted under this subsection if the Commission finds that-- (A) no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use; (B) the requested use is technically feasible without causing harmful interference to other spectrum users entitled to protection from such interference under the Commission's regulations; (C) the use of the unassigned frequency for the provision of public safety services is consistent with other allocations for the provision of such services in the geographic area for which the allocation is made; (D) the unassigned frequency was allocated for its present use not less than 2 years prior to the date on which the application is granted; and (E) granting such application is consistent with the public interest. (2) Applicability.--Paragraph (1) shall apply to any application to provide public safety services that is pending or filed on or after the date of enactment of the Balanced Budget Act of 1997. 6. When considering requests under Section 337, we must make an initial determination of the applicant's eligibility for consideration of its waiver request under the statute. We are required to apply the subsection 337(c) criteria to requests for "licensing of unused frequencies" submitted by "an entity seeking to provide public safety services." However, eligibility depends upon whether the proposed use constitutes "public safety services." 7. As to this threshold inquiry of eligibility to invoke Section 337, Sayreville states that it needs a channel for high speed data applications for use in conjunction with vehicles operated by the police and fire departments, and other Sayreville agencies. We find that the purpose of the service proposed by Sayreville is to protect the safety of life, health, or property, as required by subsection 337(f). 8. We now consider whether Sayreville meets the statutory criteria for grant of a waiver under Section 337(c)(1) of the Communications Act. The plain language of subsection (c) provides that a waiver request should be granted only upon a finding that all five conditions are met regarding the spectrum specifically sought by an applicant. We find that Sayreville has not met the statutory criteria. Neither Sayreville's one-page Waiver Request nor the information it subsequently submitted provides a sufficient basis upon which we could make the findings required by subsection 337(c)(1)(C). First, we note that Sayreville failed to demonstrate that "the use of the unassigned frequency for the provision of public safety services is consistent with other allocations for the provision of such services in the geographic area for which the allocation is made." Section 337(c)(1)(C) requires an affirmative showing that the band in which spectrum is sought is or will be used for other public safety operations in that geographic area. Because the record does not contain data relating to such usage, we conclude that a waiver grant pursuant to Section 337 is not warranted under the circumstances presented here. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 337(c) of the Communications Act of 1934, as Amended, 47 U.S.C.  154(i) and 337(c), Borough of Sayreville's Waiver Request IS DENIED, and its associated Application for a Mobile Radio Service Authorization, FCC File No. A028262, filed on October 28, 1998, IS DISMISSED. 10. 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