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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 the Matter of ) NEW HAMPSHIRE ) DEPARTMENT OF TRANSPORTATION ) Application and Waiver Request for Use of ) Certain Public Land Mobile Service Channels ) MEMORANDUM OPINION AND ORDER Adopted: November 18, 1999 Released: November 18, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION AND EXECUTIVE SUMMARY 1. On June 22, 1998, the New Hampshire Department of Transportation (NHDOT) submitted a petition for waiver of applicable provisions of Parts 22 and 90 of the Commission's Rules to permit it to use certain Public Mobile Radio Service UHF frequencies for public safety services, and an associated application for mobile radio service authorization. NHDOT's waiver is requested pursuant to either Section 337(c) of the Communications Act of 1934, as amended (the Act), or the Commission's procedures for waiver of its rules. The request was placed on public notice on February 3, 1999. Based on the record in this proceeding, we conclude that NHDOT's request should be denied. II. BACKGROUND 2. NHDOT is a public agency whose mission is to plan, construct, and maintain New Hampshire's transportation system. It provides personnel, vehicles, and coordinated dispatch carriage to maintain open and safe roadways, and to support other agencies during disasters and emergencies. 3. NHDOT seeks authorization to operate on six UHF channels allocated to the Public Mobile Radio Service. NHDOT operates a statewide private land mobile radio system on UHF frequencies, but contends that no additional UHF channels allocated for public safety use are available. It states that its current system is obsolete and inadequate, and access to the requested frequencies would allow it to upgrade quickly to meet current and future needs at a price the State can afford (and, in fact, has already budgeted). NHDOT states that this approach will save millions of dollars compared to the cost of constructing a completely new system using 800 MHz frequencies, which NHDOT acknowledges are available for public safety use. 4. It also states that no other frequency band suits its needs as well as the UHF band. Specifically, NHDOT notes that much of the territory its system must cover is mountainous and/or forested, and that 800 MHz band frequencies do not penetrate such areas as well or as reliably as lower band frequencies. NHDOT states that to obtain comparable coverage on 800 MHz frequencies, it would have to construct almost twice as many sites (forty compared to twenty-one), which would make the project eight to ten times more expensive. NHDOT also states that vacant VHF (150-174 MHz band) frequencies allocated for public safety services "are practically non-existent" in its region. 5. The commenters contend that granting NHDOT's request would be in the public interest. The New Hampshire Office of Emergency Management states that an upgrade of NHDOT's system will enable public safety agencies to respond to emergencies more effectively. APCO, a public safety frequency coordinator, does not address the specifics of NHDOT's request, but urges the Commission to evaluate Section 337(c) requests expeditiously and to make the applicant's need to protect the safety of life, health, and property the primary consideration. It notes that frequencies in the recently-reallocated 700 MHz band may not be available in some parts of the country until at least 2006, and that the 700 MHz band is not appropriate for all users. III. DISCUSSION A. Waiver under Section 337(c) of the Act 6. Section 337(c)(1) of the Act, which was enacted by the Balanced Budget Act of 1997, provides as follows: 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 application 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. Thus, the initial inquiry in evaluating a Section 337 request is whether the applicant seeks to use unassigned frequencies for the provision of public safety services. If this threshold is met, then the statutory criteria are reviewed. A failure to satisfy any one of the criteria will result in denial of the application. 7. Section 337(f)(1) defines "public safety services" as services (A) the sole or principal purpose of which is to protect the safety of life, health, or property; (B) that are provided-- (i) by State or local government entities; or (ii) by nongovernmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services; and (C) that are not made commercially available to the public. NHDOT is a governmental entity. Its function in maintaining safe roadways protects the safety of life, health, and property. Further, there is no indication that it makes or plans to make its services commercially available. Therefore, we conclude that NHDOT is an entity seeking to provide public safety services. 8. We also conclude, however, that NHDOT has not satisfied all of the statutory criteria for a waiver pursuant to Section 337 of the Act. Not only has NHDOT failed to demonstrate that no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use, it concedes that spectrum allocated to public safety services is available in the 800 MHz band. As we read Section 337(c)(1)(A) of the Act, it does not appear that higher costs or less than optimal propagation characteristics render radio frequencies in the 800 MHz band "unavailable" to satisfy NHDOT's requested public safety use under Section 337(c) of the Act. NHDOT's assertion that an 800 MHz system could be constructed, but at much greater expense than a UHF system, does not support, and in fact contradicts, a finding that "no other spectrum allocated to public safety services" is immediately available. Consequently, we must deny NHDOT's Section 337 waiver request, and we need not address whether NHDOT has submitted evidence that would allow us to make the other findings required by Section 337(c)(1) of the Act. B. Waiver under Section 1.925 of the Commission's Rules 9. NHDOT also requested a waiver of the Commission's Rules outside of Section 337(c) of the Act. To obtain a waiver of the Commission's Rules, a petitioner must demonstrate either that (a) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (b) in view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative. The Bureau is well aware of the importance of public safety communications and the needs and limitations of public safety entities in pursuing their communications options. Based on our review of the record in this proceeding, however, we conclude that NHDOT has met neither standard. 10. We find that the purpose of the Part 22 Rules is served, and not frustrated, by their application to this case. The frequencies requested by NHDOT are allocated to one-way or two-way commercial paging services, and in so doing, the Commission has determined that the allocation of those frequencies for commercial paging services is in the public interest. The Commission has proposed a transition from site-based licensing of these frequencies to geographic licensing. The Commission believes that geographic licensing will facilitate the development of paging systems and serve the public interest. As part of the transition to a different licensing approach, the Commission suspended the acceptance of applications for these frequencies from non-incumbents in order to deter speculative applications and to ensure that the goals of the rulemaking are not compromised. The Commission determined that the temporary suspension (with modifications for incumbents) should continue despite virtually unanimous comments in opposition in order to preserve the current availability of frequencies. Granting NHDOT's waiver request thus would undermine the purpose of this temporary suspension by removing the frequencies from their future availability to paging operators. Therefore, NHDOT has not met the first alternative standard under Section 1.925 for justification of a waiver of the Commission's Rules. 11. We also find that a waiver is not justified under the second alternative standard. NHDOT argues that the challenges presented by the topography of New Hampshire constitute an unusual circumstance. NHDOT notes that approximately one-third of the State is mountainous, while other parts are at sea level. NHDOT also states that New Hampshire is the most heavily-forested State in the country. We note, however, that the United States is a topographically diverse nation, and that many other licensees manage to operate land mobile radio systems on various frequency bands over changing and unique terrain features. Therefore, we conclude that mountainous and forested terrain does not constitute a sufficiently unusual or unique circumstance to merit a waiver of the Commission's Rules under the facts presented here. Moreover, while topographical diversity may present a challenge to the design and construction of a land mobile radio system in several frequency bands, we do not believe that it is a determining factor regarding a request to use one band rather than another. 12. We also note that NHDOT appears to have at least one reasonable alternative to the 450 MHz frequency band. NHDOT relies upon the unavailability of VHF and UHF public safety frequencies and the unsuitability of 800 MHz frequencies, but it has not addressed the 220 MHz band. Public safety frequencies in the 220 MHz band are available in New Hampshire, and the band has excellent propagation characteristics. NHDOT has presented no reason why it cannot construct and operate a 220 MHz system. Further, the State of New Hampshire is constructing a statewide, multi-agency telecommunications system using VHF frequencies in the 152 MHz band. The NHDOT does not address why its participation in such system would not meet its needs or whether it is ineligible for inclusion in the planned system. IV. CONCLUSION 13. We find that NHDOT has not demonstrated that it meets the criteria for a waiver of the Commission's Rules pursuant to Section 337(c)(1) of the Act, because it has not shown that no other spectrum allocated for public safety services is available. NHDOT also has not justified a waiver pursuant to Section 1.925 of the Commission's Rules, for the underlying purpose of the Rules is served by adhering to the suspension of the acceptance of applications for UHF commercial paging frequencies, and the topography of New Hampshire does not constitute a unique or sufficiently unusual circumstance, particularly given the seemingly available alternatives of using other public safety frequencies. Consequently, we deny the NHDOT's request to use the subject frequencies for public safety services. V. ORDERING CLAUSES 14. IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 1.925 of the Commission's Rules, 47 C.F.R.  1.925, the applications and waiver request filed on June 22, 1998 by the New Hampshire Department of Transportation to use frequencies 454/459.025, 454/459.050, 454/459.125, 454/459.200, 454/459.225, and 454/459.525 MHz at the requested locations for public safety services ARE DENIED. 15. 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