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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 ) ) County of Sacramento, California ) File No. 103979 ) Request for Waiver to Obtain a License for a ) Frequency Allocated for Exclusive Paging ) Operations (929.0125 MHz) ) ORDER Adopted: December 20, 1999 Released: December 21, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The County of Sacramento, California (Sacramento) seeks a waiver of the current suspension of the licensing of frequencies in the 929-930 MHz band allocated for exclusive paging operations. It has filed its request pursuant to Section 337 of the Communications Act of 1934 (Communications Act), as well as under Section 1.925 of the Commission's Rules. For the reasons stated herein, we deny the request. II. BACKGROUND 2. The frequencies at issue in this matter are allocated for the use of paging operations on an exclusive basis. On February 8, 1996, the Commission proposed a transition from site-by-site licensing to geographic area licensing for all exclusive, non-nationwide paging services, and to adopt competitive bidding rules for the geographic area licenses. A goal of the proceeding was to ensure that the rules for paging services were consistent with those governing competing new services so that competitive success is dictated by the marketplace. 3. Due to the fundamental changes proposed in the Notice, the Commission suspended acceptance of new applications for paging channels as of February 8, 1996. In February 1997, the Commission released the Paging Second Report and Order in WT Docket No. 96-18, in which it adopted final rules effecting a transition to geographic area licensing for exclusive, non-nationwide paging channels in the 929-930 MHz band and competitive bidding procedures for selecting among mutually exclusive applications for exclusive, non- nationwide geographic area licenses for paging services. In order to facilitate this transition to geographic area licensing, the Commission also decided that all pending mutually exclusive paging applications and all paging applications filed after July 31, 1996 would be dismissed. 4. On December 1, 1997, Sacramento requested a waiver of the freeze on exclusive channels in the 929-930 MHz band. Sacramento was preparing an application for a 900 MHz local alert paging system for public safety on an exclusive channel when the Commission suspended the licensing of those frequencies. After the passage of the Balanced Budget Act of 1997, Sacramento filed a second waiver request on December 18, 1998 to obtain frequency 929.0125 MHz as part of its pending application, pursuant to Section 337 of the Communications Act of 1934, as amended ("Act"). Sacramento proposed to use the frequency in the Sacramento County area on a shared basis with the closest user, Stanford University Hospital. The proposed system would be used to alert fire units, ambulances, and rescue and other emergency public safety personnel in Sacramento and Yolo Counties. 5. Several public safety entities have filed comments in support of the Waiver Request. However, Arch Communications Group, Inc. (Arch) and Nationwide Paging, Inc. (Nationwide), providers of paging services, oppose the 1998 Waiver Request on the basis that it does not comply with Section 337(c). Arch asserts that granting the Waiver Request would be contrary to the public interest and unfair to the commercial providers who had their applications dismissed pursuant to the Paging Second Report and Order. II. DISCUSSION A. Section 337 Analysis 6. 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 through Section 337 of the Act to permit use of unassigned frequencies for the provision of public safety services. 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 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. (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. 7. When considering requests under Section 337, we first must make an initial determination as to whether the applicant is eligible for consideration of its waiver request under the statute. The Commission is required to apply the subsection 337(c) criteria to all requests for "licensing of unused frequencies" submitted by "an entity seeking to provide public safety services." However, eligibility for consideration first depends upon whether the proposed use constitutes "public safety services." 8. As to this threshold inquiry of eligibility to invoke Section 337, Sacramento states that it seeks to use the frequency for a local alert paging system that would support public safety services provided in Sacramento and Yolo Counties, California, a geographic area of 2015 square miles. Specifically, the system would be used to alert fire units, ambulances, rescue and other emergency public safety personnel by sending text and numeric messages. Commenters emphasize the threat posed by the summer fire season as additional evidence of their serious need for exclusive use of the frequency. Based upon the record herein, we agree that the purpose of the service proposed by Sacramento is to protect the safety of life, health, or property, as required by subsection 337(f). 9. We now turn to whether Sacramento 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 under this section only upon a finding that all five conditions are met regarding the spectrum specifically sought by an applicant. In a case where any one of the five conditions is not met, the subject waiver will not be granted. As discussed in further detail below, we find that Sacramento has not met the statutory criteria for grant of a waiver under subsection 337(c) of the Act because, based on the record before us, we cannot make the finding required by subsection 337(c)(1)(A) that "no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use." 10. As evidence of its assertion that there is no other spectrum allocated to public safety services immediately available to satisfy the requested public safety use and that there is no danger of harmful interference, Sacramento has submitted a letter from APCO Automated Frequency Coordination, Inc. (APCO). In the letter, APCO recommends that we grant the waiver. APCO states only that it has been unsuccessful in locating any 800 MHz channels that could be used in the Sacramento area and that there were no manufacturers at that time that produced a pager for use in any of the 800 MHz bands. However, the showing required by the statute is not that no public safety frequencies are available in the applicant's preferred band, but rather that no public safety frequencies in any band are unassigned in its area. Sacramento has not made such a claim nor provided any evidence that such circumstances exist. 11. In South Bay, by contrast, the party submitted a study prepared by a consulting engineer that showed that all frequencies in the area were licensed, occupied or otherwise unavailable along with a letter from the Local Frequency Advisor for Southern California certifying that there were not any channels available in Southern California that could be assigned for use in the South Bay area without causing harmful interference to and/or receiving harmful interference from existing public safety users. The Commission concluded, after an analysis of the information submitted with the Section 337 pleading, that South Bay had shown that no other public safety spectrum was immediately available. We find that the record in the present case does not support a finding that no other spectrum is immediately available to meet Sacramento's public safety needs pursuant to subsection 337(c)(1)(A). Because a party invoking Section 337 must demonstrate the existence of all five factors required under the statute, this ends our analysis and we need not review the remaining factors. The 1998 Waiver Request must be denied. B. Waiver under Section 1.925 of the Commissions Rules 12. Pursuant to Section 1.925(b)(3) of the Commission's Rules, waiver requests may be granted if the applicant shows that either the underlying purpose of the rule would not be served or would be frustrated by application in a certain case, and a waiver would serve the public interest; or if, in view of unique or unusual factual circumstances in a given case, application of a rule would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative. 13. The freeze order was issued to deter speculative applications and also because the Commission observed that continuing to accept new applications after releasing the proposed rule changes in the Notice would compromise the objectives of the rulemaking proceeding. Granting the waiver request would in effect exempt those frequencies from the competitive bidding procedures proposed in the Paging Second Report and Order and also exempt Sacramento's application from the 1996 mass dismissal of paging applications filed after July 31, 1996. Moreover, although Sacramento proposes to share a portion of the covered area with Stanford University Hospital, all of its proposed transmitter sites will be located outside of Stanford's interference contour, thus lessening even further the amount of spectrum actually available. Therefore, the purpose of the freeze is served, and not frustrated, by its application to this case. As a result, we find that Sacramento does not meet the requirements of the first prong of Section 1.925(b)(3) of the Commission's Rules. 14. We also find that Sacramento has not demonstrated that it meets the second prong of Section 1.925(b)(3) of the Commission's Rules. As an initial matter, Sacramento has not demonstrated the existence of unique or unusual circumstances. To the contrary, the large demand for frequencies in the band at issue, as evidenced by the number of mutually exclusive paging applications dismissed by the Commercial Wireless Division pursuant to the Paging Second Report and Order, shows that Sacramento's circumstances are common among the many entities who desire a license for use of frequencies in this band. Although there may not be a commercial vendor to provide service to Sacramento at this time, we believe that it is very likely that one will exist upon completion of the auction. Experience tells us that when we conduct an auction of licenses in major metropolitan areas such as Sacramento and a large demand for those licenses exists, at least a few of those licenses are obtained by commercial vendors. 15. Moreover, Sacramento has not met its burden of showing that application of the freeze order would be inequitable, unduly burdensome, or contrary to the public interest, or that it has no reasonable alternative. In fact, we are concerned that granting the relief sought by Sacramento would be inequitable to the commercial entities who had their applications dismissed and who are waiting to obtain the spectrum under the new geographic area licensing approach. Further, we are not persuaded that Sacramento has demonstrated sufficiently that an exclusive channel is warranted under the circumstances presented. Finally, we note Sacramento has not provided sufficient evidence that no other public safety frequencies exist in any band unassigned in the area. Accordingly, based on the record before us, we cannot make a finding that Sacramento has no reasonable alternative available. IV. ORDERING CLAUSES 16. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) and 337(c) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 337(c), and Section 1.925 of the Commission's Rules, 47 C.F.R.  1.925, Sacramento County's application and waiver requests filed on December 1, 1997, and December 16, 1998, are DENIED. 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 COMMUNICATION COMMISSIONS Kathleen O'Brien Ham Deputy Chief, Wireless Telecommunications Bureau