WPC 9 2PB`K ZRomantinationalA Roman (TT)3|XRoman (TT)Times New Roman (Bold) (TT)"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd`y.X80,H;X\  P6G;Pay.\80, \4  pG;7jC:,Xj\  P6G;XP7nC:,kXn4  pG;XBBddBYBdYzzzzBBBBqodYYYYYYYYYYY8888dddddddnddddddd2KKFKK"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,OhCddddCoCȜCCddFdCNC2Cdddd,dCI\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddN%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155%T7,OOOOOO=7111111I111117777777<77777772T*K8Kx K#\&"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\,,,,,,,,,,,,,,,,,,,,,,F,F\Wim,==Fq,q,`WWWWWWWWWW,,iqiOvW`\`\Wdi0A`Omd````WSiWiW\W===`W,W\S\S9S`00\0`W\WJJA`OiWSO=#=i,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,SWW\0\`WWWWWWW0qWW,SA,,WWWWWWOWWWWWWW\\\\\0000`d`````W`iiii\\`WWWWWWSSSSS0000W`WWWWWOW````S\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7.=K\\!==\g.=.3\\\\\\\\\\33gggQzzpf=Gpfzfpp=3=V\=Q\Q\Q=\\33\3\\\\=G3\\\\QX%Xc=\Q\\=f===QQ@\=G=.=\\\\%\=3\g=\Ie77=jS.=79\Qzpppp====gf\QQQQQQzQQQQQ3333\\\\\\\e\\\\\\\"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\VVVVVVVVVVVVVVVVVVVVV%-77\V%%7>%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155%T7,OOOOOO=7111111I111117777777<7777777"5@^&&209<!!&>>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!94)0400000000000G2-2-2-2-2-744040404094949494-004240402-40220044002-2-2-2-442-7-7077-7-94944444$42++)7474444(4)0(N$2+00020000-00000000t0>77+0c<<&&209<!!&>>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!9-002240000000>00-$000000+0000000222224744444049999224000000G-----0400000+04444-2"5@^.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic.====IK=\\p\p\p\p\p\zzQpQpQpQpQ=3=3=3=3z\\\\\\\\\fQp\\\\fQ\p\p\p\p\zQzQzQpQpQpQ\\\\\\I\=\===\QzQf3fKz\z\\zpGpK\G\GN@.`\G\\\\\\39\7\7==ff\==\\=f=7t=eeee|oo.Ij|2Z\\yeCpj`vZefeloPpPj`e~~tro.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic=\f\\=\===ff@\=G=zf.G\\\\2\=3\|=\Ie77=j`.=79\\ppppppzpppp====z|fp\\\\\\\zQQQQQ3333\\\\\\\e\\\\\Q\28^x4)px`y.K8?XqK\  P@QP b7PC2X DXP\  P6QXP.a7UC2XxXU4  pQXdy.C8*XC\  P6QP.cy.G8*XG4  pQxe2S=FXRY&S\  P@Q&Pf2J=.X &J\  P6Q&P .g2N=.X7&N4  pQ&hP,%X)J,\  P6QJPxiI-!&X,-\  P@Q,P0J=.X9&J*f9 xQ&X          29 yO- X   )] X-w  #XP\  P6QXP#Federal Communications Commission`(# FCC 98162 ă  yxdddy )Պxv3 #C\  P6QH;P#Before the Federal Communications Commission  yO} Washington, D.C. 20554 ă  S-#&a\  P6G;&P##&J\  P6Q&P#In the Matter of hh@) x` `  hh@)  S-LICENSE COMMUNICATIONS hh@) hpp  Sp- SERVICES, INC. hh@) Application File No. 415669  SH-Application for Modification ofhh@)  S -Business Radio Station WIE 694hh@) x` `  hh@) x` `  hh@)  S -SOUTH BAY REGIONAL PUBLIChh@)  S - COMMUNICATIONS AUTHORITY@) Application File No. 415919  SX -Application and Waiver Requesthh@)  S0 -for Use of Certain Public Mobilehh@)  S-Service Channels hh@) x` `  hh@) x` `  hh@)  S-PAGING SYSTEMS, INC.hh@) File Nos.:  Sh-Authorizations for the following Stations:@)h26871CDP/L96  S@-xKNKM280, La Cresenta, CAhh@)h26872CDP/L96  S-xKNLV960, La Cresenta, CAhh@)h27833CDP/L96  S-xKNLV961, Santa Ana, CAhh@)h27840CDP/L96  S-xKNLW252, Santa Ana, CAhh@)h33839CDP/ML96  S-xKNLW303, Santa Ana, CAhh@)h33840CDP/ML96  Sx-x` `  hh@)h20481CDP/L97  SP-x` `  hh@)h24492CDP/ML97  S-  MEMORANDUM OPINION AND ORDER ă  S`- Adopted: July 14, 1998hh Released: July 30, 1998 By the Commission:  S - I. INTRODUCTION ă  SH"-  x1. Before us for consideration are two Applications for Review, one filed by License  S #- xMCommunications Services, Inc. (LCSI)PX #V yO%- xԍ LCSI's Application for Review was filed April 29, 1996. The South Bay Regional Public Communications  xYAuthority filed an opposition to LCSI's Application for Review on May 14, 1996 (South Bay Opposition), to which LCSI filed a reply on May 29, 1996 (LCSI Reply).P and the other by South Bay Regional Public Communications" #,))ZZ$"  S- xAuthority (South Bay).IX yOh- xKԍ South Bay's Application for Review was filed May 24, 1996. On June 10, 1996, the Association of Public x;Safety Communications OfficialsInternational, Inc. (APCO) filed comments in support of South Bay's Application  yO-for Review. I LCSI and South Bay seek review of a Memorandum Opinion and  S- xOrder on Reconsideration (Order) {Ob- xԍ Memorandum Opinion and Order on Reconsideration, Application File Nos. 415669 and 415919, 11 FCC Rcd  {O,-4725 (WTB 1996) (Order). that denies their respective requests to waive certain of our Part 22  S- xand Part 90 RulessD yO - xYԍ LCSI requested waivers of 47 C.F.R.  22.621 (specific 470512 MHz frequencies allocated for Part 22 point xtomultipoint control in Los Angeles and other urban areas) and 90.311(a) (specific 470512 MHz frequencies  xallocated for Part 90 uses in Los Angeles and other urban areas) (1995). South Bay requested waivers of 47 C.F.R.  xK 22.501 (frequencies generally allocated for Part 22 use in urban areas) and 90.303 (470512 MHz frequencies generally allocated for Part 90 use in urban areas) (1995).s in order to use Part 22 Public Land Mobile Services (PLMS) frequencies in the 470 x512 MHz band and dismisses their pending applications for these frequencies. Also before us is a Petition  xyto Vacate and/or Modify Authorizations filed by South Bay seeking to overturn the Bureau's subsequent  S<-grant of licenses for the subject frequencies to Paging Systems, Inc. (PSI).n<  yO-ԍ Petition to Vacate and/or Modify Authorizations, filed Dec. 19, 1997.n  S-  x2. While LCSI's and South Bay's Applications for Review were pending before us, Congress  S- xenacted Section 337 of the Communications Act of 1934 (Communications Act).  {O- xYԍ See 47 U.S.C.  337; see also Balanced Budget Act of 1997, Pub. L. No. 10533, 111 Stat. 251 (1997), 3004 (Balanced Budget Act). Thereafter, South Bay  S- xfiled a waiver request pursuant to Section 337 (Section 337 pleading)  yO- xԍ The South Bay pleading was filed on August 6, 1997 and styled "Re: South Bay Regional Public  x;Communications Authority, Application (FCC Form 600) and Petition for Waiver, File No. 415919." Letter from  xRamsey L. Woodworth and Rudolph J. Geist, Attorneys for South Bay, to William F. Caton, Acting Secretary, F.C.C. (dated Aug. 6, 1997).  asserting that its waiver request and  x.license application should be granted because they have satisfied the waiver criteria specified by Section  x/337. We conclude that South Bay has properly invoked the provisions of Section 337. South Bay's  xSection 337 pleading is not an application for review, but is an independent legal basis for the granting  xyof the requested relief. Therefore, we will address the matters raised in South Bay's Section 337 pleading  x/separately from the issues raised in its Application for Review. As such, South Bay's request under  S -Section 337 is not subject to the procedural limitations of 47 C.F.R. 1.115(c) and (d).  yO!- x-ԍ Under 47 C.F.R.  1.115(c), an "application for review will [not] be granted if it relies on questions of fact  x;or law upon which the designated authority has been afforded no opportunity to pass." Under 47 C.F.R.  1.115(d),  xan application for review and any supplemental pleadings must be filed within 30 days of the date of public notice  xJof the relevant Commission action. The Section 337 pleading is not a mere supplement to South Bay's Application for Review. Therefore, Sections 1.115(c) and (d) of the Commission's Rules do not apply here.  S\-  x3. We find that LCSI has failed to demonstrate that the Bureau's decision with respect to its  S4- xapplication was in error. Therefore, we deny LCSI's Application for Review and affirm the Order"4v,N(N(ZZ;"  x[dismissing LCSI's license application. With respect to PSI, we find that the Bureau erred in licensing the  xsubject frequencies to PSI for use as paging control points before final action had been taken on South  xBay's previouslyfiled application for the same frequencies. To correct this error without interrupting  xservice to PSI's subscribers, we propose to modify PSI's license pursuant to 47 U.S.C.  316(a)(1) and  xsubstitute unassigned narrowband PCS spectrum in the 930 and 940 MHz bands that may be used for  xLcontrol point purposes for the previouslyassigned control point frequencies in the 470512 MHz band.  xjAs a result of our actions taken regarding LCSI's application and PSI's licenses, we return the frequencies  xthat are the subject of South Bay's Section 337 pleading to unassigned status. Furthermore, for the  xreasons stated herein, we find that South Bay has met the statutory criteria for granting a waiver of our  xRules under Section 337. We therefore conditionally grant South Bay's request under Section 337, and  xwe reinstate and grant its license application. Because we grant its request under the provisions of Section 337, we dismiss as moot South Bay's Application for Review.  S -. II. EXECUTIVE SUMMARY ă  S -  _x4. After considering the arguments and evidence presented by South Bay and LCSI in this proceeding, we make the following major findings:  S- A. LCSI  S-   S- ` x` ` The Bureau correctly determined that the unavailability of frequencies in the 470512  ` MHz band for Part 90 uses, in and of itself, did not constitute a unique or unusual  ` circumstance warranting waiver of the Commission's Rules. As a result, LCSI, pursuant  ` to 47 C.F.R. 22.119(a) and90.151(a), has not demonstrated that waiver of 47 C.F.R. 90.311(a) and 22.621 would serve the public interest.(#`  S- ` ~x` ` The Bureau correctly determined that LCSI failed to demonstrate the lack of reasonable  ` 3alternatives within our existing Rules to its request for Part 22 frequencies, as required  ` Rby 47 C.F.R. 22.119(a) and90.151(a). In failing to demonstrate either unique or  ` aunusual circumstances or the lack of reasonable alternatives, LCSI did not fulfill the  ` Prequirements for granting its waiver request. Therefore, we shall deny LCSI's Application  S-for Review. (#`  S-  S- B. PSI  S8- `  x` ` The Bureau erred by unconditionally licensing the subject frequencies to PSI while South  ` $Bay's request under Section 337 and LCSI's and South Bay's Applications for Review  S - ` were pending. Accordingly, p ursuant to the Commission's authority under 47 U.S.C.  ` 316, we modify PSI's licenses to authorize the use of other unassigned frequencies  S"-suitable for control point use. (#` " %,N(N(ZZ&"  S-C. South Bay  S- ` ~x` ` South Bay's application pursuant to Section 337 of the Communications Act meets the  ` _requisite statutory criteria. Specifically, we find that: (1)no spectrum other than the Part  ` 22 PLMS frequencies at issue is immediately available to satisfy South Bay's requested  ` _public safety service use; (2)the requested use will not cause harmful interference to other  ` spectrum users; (3)the proposed use is consistent with other public safety allocations in  ` the Los Angeles area; (4)the frequencies in question were allocated for their present Part  ` 22 use not less than two years before the grant of South Bay's application under Section 337; and (5)granting South Bay's application is consistent with the public interest.(#`  SH - ` x` ` With respect to the public interest, we find that South Bay has an immediate need for  ` additional frequencies for its members' public safety communications needs, and must  ` obtain these frequencies within the 470512 MHz band in order to support interoperability  ` with other area public safety entities. We further find that the public safety needs of  ` ASouth Bay's constituent communities are critical. Therefore, we conditionally grant South  ` Bay's application under Section 337, subject to the modification of PSI's licenses becoming final. (#`  S- III. BACKGROUND  S-  S-  x5. LCSI. LCSI is a Business Radio Service licensee, providing subscriberbased mobile service  Sj- xon an exclusive channel in the 470512 MHz band. j {O- xJԍ LCSI is the licensee of Station WIE694. See 47 C.F.R. 90.3190.35, 90.17190.187, 90.267, and 90.30190.317. On February22, 1995, LCSI filed an application,  x]with a Petition for Waiver, seeking to modify its license to add frequency pairs 470/473.0125 and  S- x470/473.0375 MHz.g " yO-ԍ LCSI's Request for Rule Waiver, Feb. 22, 1995 (LCSI Request).g LCSI stated that it required additional frequencies for its system because of heavy  xloading by its customers and the unavailability of Part 90 frequencies in the 470512 MHz band in the  S- xLos Angeles area.X  yO-ԍ LCSI Request at 23 and 56, and Attachment C.X LCSI, therefore, requested a waiver of Sections 90.311(a) and 22.621 of the  S- x[Commission's Rules B yO- xԍ 47C.F.R.  90.311(a) and 22.621. These provisions list the frequencies in the 470512 MHz band that are specifically available for Part 90 and Part 22 operations, respectively. to allow the use of frequencies allocated to Part 22 for pointtomultipoint control channels in that band for LCSI's operations.  S*-  !x6. On July 17, 1995, the Bureau's Licensing Division returned LCSI's application and denied the  S- xassociated waiver request because of several deficiencies. Z {O<%- xԍ See Application Return Notice, File No. 415669IB (dated July 17, 1995). Specifically, LCSI failed to  xprovide justification for using exclusive channels rather than shared channels to serve its customers. LCSI also did  xwnot demonstrate that it could not use 470512 MHz channels in the Part 90 General Access Pool instead of the Part"& ,N(N(&"  x<22 frequencies at issue, as required by 47 C.F.R. 90.311. Further, LCSI did not address the availability of other  xZ470512 MHz channels where LCSI would be outside of the 40mile radius of current licensees and thereby avoid  xinterference with existing licensees, as required by 47 C.F.R. 90.313(c). In addition, LCSI failed to provide a  xstatement by the Business Radio Service frequency coordinator that no alternatives existed in any Part 90 channels for its proposed system expansion. On August 16, 1995, LCSI filed a Petition"x ,N(N(ZZ\"  xfor Reconsideration before the Bureau of the Licensing Division's July 17, 1995 action. On August 23,  x1995, LCSI supplemented its reconsideration petition and provided a statement from the National  S- xAssociation of Business and Educational Radio (NABER),`Xx yO- xԍ NABER has since changed its name to the Personal Communications Industry Association (PCIA). Because  xall filings and prior decisions in this proceeding use the former name, however, NABER (PCIA) will be used throughout this document in references to this frequency coordinator.` the Business Radio Service frequency  xcoordinator, that no frequencies in the 470512 MHz band were available for Part 90 operations in the Los  S`- x/Angeles area.` yO - xԍ After the filing of LCSI's Petition for Reconsideration and Supplement, South Bay filed an opposition (dated Sept. 13, 1995), to which LCSI replied (dated Sept. 25, 1995). In its reconsideration petition, LCSI argued that the Licensing Division's denial of its  xjwaiver request was not supported by reasoned analysis as required by law. LCSI further asserted that it  xhad demonstrated that unique circumstances existed given that there was little or no capacity in the  xBusiness Radio Service or General Access Pool in the 470512 MHz band in the Los Angeles area for the  S-expansion of its system.U  yOP-ԍ LCSI's Petition for Reconsideration at 23.U  Sp-  x7. South Bay. South Bay is a Los Angeles area communications agency providing public safety  xcommunications service to the municipalities of El Segundo, Gardena, Hawthorne, and Manhattan Beach,  S" - x\California."  yOB- xԍ South Bay uses frequencies allotted to the former Local Government Radio Service for fire and police voice  {O - xYand data communications and mutual aid channels. See South Bay's Petition for Waiver (dated June 5, 1995) (South  xBay Petition), Attachment C. In 1997, the Commission consolidated the twenty Private Land Mobile Radio Services  xinto two broad service pools the Public Safety Pool and the Industrial/Business Pool for purposes of assigning  {Od- xYspectrum below 800 Mhz. See Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services  xand Modify the Policies Governing Them and Examination of Exclusivity and Frequency Assignment Policies of the  {O- xYPrivate Land Mobile Radio Services, PR Docket No. 92235, Second Report and Order, 12 FCC Rcd 14307 (1997).  xAs part of this consolidation, frequencies included in the Local Government Radio Service were included in the Public Safety Pool.  On June 6, 1995, South Bay filed an application, accompanied by a Petition for Waiver,  x[seeking to expand its communications system by adding eight paired Part 22 pointtomultipoint control  S - x.frequencies in the 470512 MHz band. V yO!- xZԍ Those pairs were 470/473.0125, 470/473.0375 (the two pairs also requested by LCSI), 506/509.0125, and 506/509.0375 MHz. In its Petition for Waiver of Sections 90.303 and 22.501 of the  S - xCommission's Rules,  yO$- xZԍ 47C.F.R.  90.303 and 22.501. These provisions list the frequencies in the 470512 MHz band that are generally available for Part 90 and Part 22 operations in urban areas, respectively. South Bay argued that: (1)the 470512 MHz band has become the primary public  xsafety communications band in the Los Angeles area, (2)the requested frequencies would improve  xinteroperability among its participating and neighboring public safety agencies, and(3)the frequencies"Z,N(N(ZZK"  xwould be compatible with its existing system, and therefore would facilitate development of a modern  S- xshareduse public safety communications system. yO@- xxԍ South Bay Petition at ii and 15. South Bay states that the frequencies would enable them to develop a new system and to implement trunking once UHF trunking equipment becomes available. South Bay also cited the unavailability of frequencies  xin the 470512 MHz band allocated for Part 90 use in the Los Angeles area as a justification for its  S-request.F  yOp- xԍ After the submission of the South Bay Petition, LCSI filed a Request to Dismiss South Bay's application and  x-waiver request (dated July 21, 1995), that South Bay opposed (dated Aug. 8, 1995). LCSI replied to South Bay's opposition (dated Aug. 8, 1995).F  S8-  x8. The Bureaus Order. On April 24, 1996, the Bureau addressed both LCSI's reconsideration  xpetition and South Bay's Petition for Waiver. The Bureau found that neither party had shown the  x.existence of unique circumstances and lack of reasonable alternatives as required by Section 90.151(a) of  S- xNthe Commission's Rules.dh {O -ԍ Order, 11 FCC Rcd at 4726 and 4727, paras. 8 and 12.d The Bureau acknowledged that there was a shortage of 470512 MHz  xyfrequencies for Part 90 operations in the Los Angeles area, but concluded that this situation alone did not  Sr- x[constitute unique circumstances warranting the waiver of the Commissions Rules.Er {O -ԍ Id. at 4726, para. 8.E The Bureau stated,  x [T]he unavailability of frequencies in a specific band in a particular geographic area cannot be considered  xa unique circumstance. In todays communications environment, this factor is often the norm, particularly  S - xkin major urban areas.3  {O&-ԍ Id.3 In addition, the Bureau predicted that our action in the "spectrum refarming"  S - xyproceeding, PR Docket No. 92235, would address this problem.^   {O- xԍ Id. (citing Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify  {OZ- xthe Policies Governing Them, PR Docket No. 92235, Report and Order and Further Notice of Proposed Rule  {O$-Making, 10 FCC Rcd 10076 (1995) (Refarming Report & Order)). The Bureau noted specifically that in  x the refarming decision, channels in the 470/512 MHz band, among others, would be required to split  xfourfold, creating additional frequencies to relieve frequency congestion, including that experienced by  SZ-licensees such as LCSI and South Bay when trying to expand their systems.3ZD  {O>-ԍ Id.3  S -  x9. Finally, the Bureau acknowledged that the Part 22 control frequencies requested by LCSI and  xSouth Bay were unused in the Los Angeles area, but observed that the Commission had received  xLapproximately 7,000 applications for 931 MHz paging systems nationwide and that the future licensees  S- x\would require access to the 470512 MHz band for control frequencies.T {O#-ԍ Order, 11 FCC Rcd at 4726, para. 10.T The Bureau estimated that  xyapproximately half of those applications could not be processed at that time because they were mutually"jh,N(N(ZZ"  S- xexclusive.& {Oh- xZԍ Id. See also Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development  {O2- xof Paging Systems, Implementation of Section 309(j) of the Communications Act - Competitive Bidding, Second  {O- xReport and Order and Further Notice of Proposed Rule Making, WT Docket No. 96-18, PP Docket No. 93-353, 12FCC Rcd 2732 (1997). The Bureau pointed out that, although such control frequencies were currently unassigned,  xjgranting LCSI's and South Bay's requests likely would preclude future grants of these frequencies to Part  S- x22 eligibles and would limit the development of paging systems in the Los Angeles area.W {O-ԍ Id. at 4726 and 4727, paras. 10 and 12.W Based on the  xdeficiency of the waiver showings, the Bureau denied LCSI's and South Bay's petitions and dismissed  S`- x[their applications. On April 26, 1996, LCSI filed its Application for Review of the Bureau's Order. On  S:-May 24, 1996, South Bay filed its Application for Review of the Bureau's Order.  S-  1x 10. PSI. PSI, a PLMS operator, filed applications for a total of eight paging control channels  S- xon May 20, 1996, June 25, 1996, August6 and 7, 1996, November 12, 1996, and August 22, 1997.H {O- xX ԍ See Application File Nos. 26871CDP/L96, 26872CDP/L96, 27833CDP/L96, 27840CDP/L96, 33839CDP/ML96, 33840CDP/ML96, 20481CDP/L97, and 24492CDP/ML97. PSI  S- xfiled its first four applications less than one month after the Bureau released its Order denying LCSI's and  xNSouth Bay's waiver requests. Each of these applications was placed on public notice, which gave  SP - x?interested parties the opportunity to challenge those applications within 30 days.P  {O- xԍ The Public Notices were issued on June 15, July 10, and September 11, and November 27, 1996, and  {O\-September 10, 1997. See 47 C.F.R.  22.130. Although no  S( - xfrequencies were specified in the first seven of PSI's applications, the Public Notices stated that PSI had  xapplied for paging control channels in the 470512 MHz band. Because six of the 14 control channels  xin this band were licensed to paging entities when PSI filed its applications, the only eight channels  xremaining in the 470512 MHz band that were available for paging control use were the eight sought by LCSI and South Bay. Neither LCSI nor South Bay filed objections to PSI's applications.  S:-  |x 11. Subsequent Legislative and Regulatory Actions. On August 5, 1997, Congress enacted the  S- xjBalanced Budget Act of 1997.   yO-ԍ Balanced Budget Act of 1997, Pub. L. No. 10533, 111 Stat. 251 (1997), 3004 (Balanced Budget Act). Section 3004 of the Balanced Budget Act amended the Communications  S-Act to add Section 337.P!  {O-ԍ See 47U.S.C. 337(c).P Subsection (c) of Section 337 provides as follows:  S- XxX` ` (c) Licensing of Unused Frequencies for Public Safety Services.--(#`  St- ` ` X (1) Use of unused channels for public safety services.--Upon(#  SL- XxX` ` X application by an entity seeking to provide public safety services, the(#  S$- XxX` ` X Commission shall waive any requirement of this Act or its regulations(#  S- XxX` ` X implementing this Act (other than its regulations regarding harmful(#  S- XxX` ` X interference) to the extent necessary to permit the use of unassigned(#  S- XxX` ` X frequencies for the provision of public safety services by such entity.(#  S- XxX` ` X An application shall be granted under this subsection if the Commission(# " !,N(N(ZZ"Ԍ S- XxX` ` X finds that--(#  S- ` ` X X(A) no other spectrum allocated to public safety services is(#  S- ` ` X Ximmediately available to satisfy the requested public safety service(#  S- ` ` X Xuse;(#  S`- ` ` X X(B) the requested use is technically feasible without causing(#  S8- ` ` X Xharmful interference to other spectrum users entitled to protection(#  S- ` ` X Xfrom such interference under the Commission's regulations;(#  S- ` ` X X(C) the use of the unassigned frequency for the provision of(#  S- ` ` X Xpublic safety services is consistent with other allocations for the(#  S- ` ` X Xprovision of such services in the geographic area for which the(#  Sp- ` ` X Xapplication is made;(#  SH - ` ` X X(D) the unassigned frequency was allocated for its present use(#  S - ` ` X Xnot less than 2 years prior to the date on which the application is(#  S - ` ` X X granted; and(#  S - ` ` X X(E) granting such application is consistent with the public(#  S - ` ` X Xinterest.(#  S - ` ` X (2) Applicability.--Paragraph (1) shall apply to any application to provide(#  SX- XxX` ` X public safety services that is pending or filed on or after the date of(#  S0- XxX` ` X enactment of the Balanced Budget Act of 1997.C"0 yO-ԍ 47U.S.C. 337(c)(1).C(#  S-  x 12. On August 6, 1997, while its Application for Review was under consideration, South Bay  xsubmitted a pleading requesting that the Commission immediately grant its license application and  x[associated Petition for Waiver pursuant to Section 337. South Bay contends that its request meets all of  x the criteria for invoking the statute and that grant of its license application would advance the public  S@-interest.I#@X {O8-ԍ See Section 337 pleading.I  S-  !x 13. On September 19 and November 12, 1997, while South Bay's request under Section 337 and  xmLCSI's and South Bay's Applications for Review were pending, the Bureau granted the license  xapplications of PSI for the eight subject frequencies. In response, South Bay filed a "Petition to Vacate  xand/or Modify Authorizations" on December 19, 1997, in which South Bay argued that the Bureau had  xLgranted PSI's licenses in error. PSI filed an opposition to this petition on December 30, 1997, and South Bay filed a reply on January 14, 1998.  S- IV. DISCUSSION ă  S-  x 14. Before addressing the merits of South Bay's Section 337 pleading and the Applications for  xReview, we will resolve several procedural matters. During the course of this proceeding, LCSI and South  S8- xyBay have filed objections to the agency's consideration of various pleadings.P$Z8 {O$- xԍ See, e.g., LCSI's Request to Dismiss South Bay's Petition for Waiver, filed July 21, 1995; South Bay's  xOpposition to LCSI's Petition for Reconsideration, filed Sept. 13, 1995; and South Bay's Opposition to LCSI's Application for Review, filed May 14, 1996.P We believe that the public  xinterest will be furthered by the consideration of all matters raised in these pleadings, and that this"  $,N(N(ZZ!"  S- xinclusive approach best serves the efficient and expeditious dispatch of Commission business.J% {Oh-ԍ See 47U.S.C. 154(j).J Thus, we  xaccept and will consider all such pleadings. Consistent with this determination, all motions objecting to or seeking dismissal of these pleadings are hereby denied.  S`-  |x15. In addition, LCSI contends that Section 1.953(a) of the Commission's RulesB&`Z yOZ-ԍ 47 C.F.R.  1.953(a).B required the  xBureau to consider its license modification application prior to South Bay's application because LCSI filed  S- xits application on February 22, 1995, and South Bay filed its application on June 6, 1995.M' yO -ԍ LCSI's Application for Review at 2.M LCSI asserts  xthat its application should have been considered by the Bureau, and South Bay's should have been  xdismissed because it was not filed first. Moreover, LCSI contends that the Bureau erred because it  xL"considered these two applications as coequal in priority," and thereby "prejudiced the right of LCSI to  xbe granted the waiver in the event that the Commission otherwise set aside the opinion and order of the  SH - x Bureau on other grounds."3(H z {Ob-ԍ Id.3 Because LCSI and South Bay both were seeking the assignment of four  xidentical frequencies allocated to Part 22 pointtomultipoint control operations in the same geographic  xarea for Part 90 purposes, the substance of their requests had a commonality of facts and arguments. We  xjbelieve that the Bureau, primarily as a matter of administrative convenience and efficiency, resolved both  xmatters in a single decisional document but nonetheless addressed the merits of each petition  S - x=independently.Z)  {O,-ԍ See Order, 11 FCC Rcd at 4725, paras. 15.Z We do not believe that this approach prejudiced either party. We also note that South  x=Bay's application sought four frequencies in addition to those four frequencies sought by both LCSI and  xkSouth Bay, which is another reason that outright dismissal of the South Bay application based on the  xpendency of LCSI's application was not warranted under the circumstances. We disagree with LCSI's  xassertion that the Bureau was required to dismiss South Bay's application merely because it was filed after  x?LCSI's modification application. Rather, the Bureau was required to address LCSI's modification  xapplication with associated waiver request first, which it appears that it did, and then, depending upon the action taken upon LCSI's application, to resolve South Bay's application and waiver.  S-  x16. South Bay also suggests that we institute a concurrent rule making to reexamine the  xLcontinuing need for Part 22 frequencies for paging control purposes and the possible reallocation of such  S- xfrequencies to the Public Safety Pool.V* yO!-ԍ South Bay's Application for Review at 1819.V Both LCSI and South Bay argue that the Commission's allocation  x=of the frequencies at issue for widearea pointtomultipoint control use is no longer supportable in light  xof current economic and technological circumstances. These arguments raise frequency allocation issues  xwhich are beyond the scope of the issues before us. The Commission is now considering the  x communications requirements of public safety entities with the objective of developing a longrange,"( . *,N(N(ZZ"  S- x=comprehensive national policy.+& {Oh- xԍ See In re the Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State  xand Local Public Safety Agency Communications Requirements Through the Year 2010, WT Docket No. 9686,  {O- xhNotice of Proposed Rule Making, 11 FCC Rcd 12460 (1996) (Public Safety NPRM), and Second Notice of Proposed  {O-Rule Making, 12 FCC Rcd 17706 (1997). Interested parties may, however, pursue these issues in the context of  S- xa petition for rule making that meets the requirements of Section 1.401 of our Rules.?, yO.-ԍ 47 C.F.R.  1.401.? South Bay's  xrequest is beyond the scope of the instant proceeding, and considering its merits in this context would not foster the development of comprehensive policy.  S8- A. The LCSI Application for Review  S-  lx17. We note, as an initial matter, that the frequencies sought by LCSI are administered under Part  x 22 of the Commission's Rules, which governs the use of spectrum for certain common carrier PLMS  S- xjlicensees.F-F {O~-ԍ See 47 C.F.R. Part 22.F We also note that LCSI seeks to use the subject frequencies for Part 90 operations. Parts 22  Sp- xLand 90 of our Rules have different, although similar, waiver standards.Y.p {O-ԍ See 47 C.F.R.  22.119 and 90.151.Y LCSI originally sought a waiver  SH - x=of 47 C.F.R.  22.621 and 90.311(a)R/H j  yOR-ԍ 47 C.F.R.  22.621 and 90.311(a).R pursuant to Section 90.151(a) of the Commission's Rules.C0H  yO-ԍ 47 C.F.R.  90.151(a).C The  xBureau applied only the Part 90 waiver standard in reaching this decision. This is insufficient. Because  xLCSI seeks the waiver of rules in both Parts 22 and 90, we conclude that the waiver standard applicable  xLonly to the type of operations proposed by the applicant is not dispositive. We therefore disagree with  x=the Bureau's decision to analyze LCSI's request for waiver solely under the Part 90 waiver standard. As  xLCSI requests a waiver of rules under Parts 22 and 90, so its request must comply with both Sections 22.119 and 90.151 of the Commission's Rules. Section 90.151(a) provides, in pertinent part, that:  XxRequests for waivers of rules in this part shall state the nature of the waiver or exception  desired, and set forth reasons in support thereof including a showing that unique  circumstances are involved and that there is no reasonable alternative solution within  S-existing rules.31  {O -ԍ Id.3   S@-  x18. Section 90.151(a) is somewhat narrower in scope than Section 22.119(a). Section 22.119(a)  xLstates that parties seeking a waiver of a Part 22 Rule must demonstrate that: (1)the underlying purpose  x.of the rule(s) would not be served or would be frustrated by application to the instant case, and that the  x1granting of the waiver request would be in the public interest; or (2) unique or unusual factual  xcircumstances are involved that would render application of the rule(s) inequitable, unduly burdensome" 1,N(N(ZZ"  S- xor contrary to the public interest, or the applicant has no reasonable alternative.2 yOh- xZԍ 47 C.F.R.  22.119(a). Subsection (a)(1) is inapplicable here because the waiver requests themselves would  xthwart rather than advance the underlying allocation plan reflected in 47 C.F.R.  22.621 and 90.311. A waiver  xis appropriate only if special circumstances warrant a deviation from the general rule and such deviation will serve  {O- xthe public interest. See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); In re  {O-Request of Fleet Call, Inc., 6 FCC Rcd 1533 (1991). See also 47 C.F.R.  1.3. Thus, under the Part  x22 waiver standard, LCSI must demonstrate that its waiver request would involve either unique or unusual circumstances, or that no reasonable alternatives exist.  S`-  0x19. In its Application for Review, LCSI argues that the Bureaus Order is inconsistent with the  xzrequirements of law and Commission policy and is based on erroneous findings. LCSI argues that the  xBureau erred in determining that the unavailability of spectrum for Part 90 licensees in the Los Angeles  xarea did not constitute a unique circumstance warranting the granting of its waiver request. Also, LCSI  xdisputes the Bureau's conclusion that our spectrum refarming proceeding will meet its immediate spectrum  x[needs. Finally, LCSI challenges the Bureau's conclusion that allowing PLMR service licensees to use the  xfrequencies at issue, thereby precluding their use by Part 22 eligibles, would harm the development and  xoperation of widearea paging systems. We will now address the merits of LCSI's Application for Review.  S -  x20. As discussed in greater detail infra, we affirm the Bureau's decision dismissing LCSI's  x/modification application. We agree that LCSI failed to demonstrate that waiver of the Commission's  xRules was warranted in this instance. LCSI's showing did not meet the standards of either Section 22.119  xor Section 90.151 of our Rules. Specifically, we find that LCSI did not sufficiently demonstrate either unique or unusual circumstances or a lack of reasonable alternatives within existing Rules.  S-  Px21. Unique or Unusual Circumstances. We conclude that LCSI has not demonstrated the  xexistence of unique or unusual circumstances warranting a waiver of the Commission's Rules. In its  xApplication for Review, LCSI argues that the Bureau erred in determining that the unavailability of  xspectrum for Part 90 licensees in the Los Angeles area did not constitute a unique circumstance.  xmSpecifically, it argues that under the Bureau's theory, "if all licensees are suffering from lack of  S- xfrequencies, there is no unique circumstance which exists for any of them."M3| yO:-ԍ LCSI's Application for Review at 5.M We disagree with LCSI's  xcharacterization of the Bureau's analysis and its interpretation of the criteria for granting a requested  xwaiver. As the Bureau correctly concluded, a shortage of spectrum in the 470512 MHz frequency band,  xparticularly in a major metropolitan area such as Los Angeles, is often the norm and, therefore, cannot  xbe considered a unique or unusual circumstance that, standing alone, would warrant a waiver of our Rules.  xOtherwise, waivers would become routine rather than being limited to special or unusual situations, as our  S.-Rules require.|4.  {O"-ԍ See, e.g., Northeast Cellular Telephone Co. v. FCC, supra.|  S-  x22. LCSI further asserts that the Bureau ignored three additional bases on which a finding of  x"unique circumstances" could be predicated. First, LCSI argues that its one exclusiveuse channel is  xinsufficient to satisfy its needs. It asserts that it has the loading to justify three frequency pairs, and that  xit found upon investigation "that no viable options existed in the 470512 MHz band for exclusive use"f 4,N(N(ZZ"  S- xfrequencies in the Los Angeles area."M5 yOh-ԍ LCSI's Application for Review at 6.M Second, because it is in the business of leasing air time on a for S- xprofit basis, LCSI argues that it must have exclusive channels "in order to satisfy its customers."36X {O-ԍ Id.3 Third,  S- xLCSI states that Section 90.313(c) of the Commission's RulesC7 yO:-ԍ 47 C.F.R.  90.313(c).C entitles a licensee with excess loading such  xas LCSI to three exclusiveuse channels, and that, because the Commission has not made those channels  xMavailable and instead denied LCSI's waiver request, "LCSI is denied the benefits of exclusive channels  S8-to which the rules entitle it."M88z yOR -ԍ LCSI's Application for Review at 6.M  S-  x23. We do not find LCSI's description of its system and its proposed expansion of that system  xto be a sufficiently persuasive showing of unique or unusual circumstances. In particular, LCSI has failed  xto demonstrate how its situation is different from any other provider of subscriberbased mobile service  xor Part 90 licensee operating a system in the 470512 MHz band in the Los Angeles area. We also  xdisagree with LCSI's contention that it was entitled to additional frequencies in the 470512 Mhz band  xbased on the language of Section 90.313(c) of the Commission's Rules. Section 90.313(c) does not  xprovide any entitlement to spectrum. Rather, this Rule sets forth the showing that must be made by an applicant in order for its request for additional spectrum to be considered.  S -  "x24. Reasonable Alternatives. As an initial matter, we note that LCSI's failure to demonstrate  xunique circumstances is a fatal defect with respect to the sufficiency of its waiver request under the  S2- x=applicable waiver standard.L92  {O-ԍ See 47 C.F.R. 90.151(a).L We nonetheless consider LCSI's contentions regarding the remainder of its  x0waiver showing and affirm the Bureau's decision that LCSI failed to establish a lack of reasonable  S- xalternatives under the Commission's Rules. LCSI argues that, contrary to assertions in the Return Notice,  xit did consider the 470512 MHz channels in the General Access Pool under Section 90.311 of the  S- xCommission's Rules@: yO-ԍ 47 C.F.R.  90.311.@ and found that none were available. We note, however, that LCSI failed to assert  xsuch facts in its initial waiver request. As a result, based on the information presented in LCSI's initial  xwaiver request, it was reasonable for the Bureau to conclude that such frequencies had not been considered  xbecause LCSI did not explicitly state that it had. Thus, we decline to consider this an erroneous finding  x=of fact made by the Bureau, particularly because this was not the sole reason for denial of LCSI's waiver request.  S|-  1x25. In addition, LCSI contends that "NABER (PCIA) provided a letter furnished to the FCC  xwhich stated explicitly that there were no suitable alternative channels available" to LCSI "in the business  S,- xradio service in the 470 MHz band in Los Angeles."O;,,  yO%-ԍ LCSI's Application for Review at 67.O Regarding this contention, the Bureau  S- xacknowledged in the Order that on August 23, 1995, it received a statement from NABER (PCIA) that" ;,N(N(ZZ"  S- xwas included in LCSI's Supplement to its Petition for Reconsideration.S< {Oh-ԍ Order, 11 FCC Rcd at 4725, para. 4.S The Bureau also stated in the  S- xOrder that LCSI did not provide such documentation in its initial waiver request and application.F=Z {O-ԍ Id. at 4726, para. 7. F It was  xLthe absence of such documentation in the initial waiver request that justified in part the Division's return  S- xof LCSI's initial application.L> {O-ԍ See id. at 4726, paras. 78.L Here again, the Bureau did not use the lack of this documentation as the  xbasis for denying LCSI's Petition for Reconsideration. Thus, we disagree that this was an erroneous finding of fact by the Bureau.  S-  x26. We note that during the course of this proceeding LCSI has made assertions and submitted  xdocumentation regarding the unavailability of additional exclusive use frequencies in the 470512 MHz  xband for Part 90 purposes. We also note, however, that LCSI has failed to demonstrate the absence of  xyany alternatives among other Part 90 channels. We concur with the Bureau's findings that potential relief  SJ - xmay be provided in the Refarming proceedingf?J ~ {Oh-ԍ See Refarming Report & Order, 10 FCC Rcd 10076 (1995).f and note that there are other possible solutions which may  xbe available to LCSI. LCSI has not demonstrated that it has fully explored alternatives such as system  xyreplacement, system expansion, dual systems, or a single system on multiple frequencies with a common  x.controller, using other private land mobile radio spectrum. Nor has LCSI demonstrated that it looked to  xOother frequency bands to address its communications needs. Thus, we find that LCSI has not  x.demonstrated the lack of reasonable alternative solutions consistent with existing Rules. As a result, we  x>conclude that LCSI's requested waiver of the Commission's Rules is not warranted because it did not  xmake a sufficient showing under the applicable waiver standard. We find, therefore, that the Bureau  x0committed no error in its decision to deny LCSI's Petition for Reconsideration and LCSI's waiver  S-request.L@ {O-ԍ See 47 C.F.R.  1.115(g).L  S-  x27. Further, LCSI contends that the Bureau erred by not determining whether the LCSI waiver  Sj- xrequest or the South Bay waiver request would prevail.MAj yO-ԍ LCSI's Application for Review at 3.M This is both incorrect and, given our findings  xyherein, moot. The Licensing Division returned LCSI's initial application because it was deficient in many  xLrespects. LCSI then filed its Petition for Reconsideration of the Division's determination, and submitted  xadditional information in an effort to cure its application's deficiencies. In denying this reconsideration  xpetition, the Bureau found that LCSI still had not demonstrated unique circumstances and the lack of any  S- x.reasonable alternatives.BZ  {O"-ԍ Order, 11 FCC Rcd at 4726, paras. 810. Cf. 47 C.F.R.  22.119(a), discussed supra. In so doing, the Bureau dismissed LCSI's application.MC  {O.$-ԍ See 47 C.F.R.  90.151(b).M Thus, the question of  xwhich application should prevail was not ripe for decision by the Bureau since LCSI's application was dismissed. "* ~ C,N(N(ZZ"Ԍ S- B. Paging System, Inc. Licenses  S-  x28. As noted above, the Bureau granted authorizations to PSI for all eight of the subject  xfrequencies on September 19 and November 12, 1997, without any conditions related to the outcome of  x]this proceeding. Public notice of these actions was given on September 24, 1997, for seven of the  xfrequencies and November 20, 1997, for the remaining frequency. In its Petition to Vacate, South Bay  x seeks reconsideration of the Bureau's grant of the eight authorizations to PSI. While the Bureau was  S- xauthorized to consider and grant PSI's applications for the Part 22 frequencies,ZD {OP-ԍ See 47 C.F.R.  0.131(a) and 0.331.Z it acted in error in  xgranting PSI's applications without conditioning those licenses on the outcome of the Applications for  xReview. Because the pendency of LCSI's and South Bay's Applications for Review rendered uncertain  xthe final disposition of the eight frequencies at issue, we find that the Bureau should have expressly conditioned PSI's licenses on the outcome of the Applications for Review.  S -  x29. Under our Rules, petitions for reconsideration of a final action taken pursuant to delegated  S - xauthority must be filed within 30 days of public notice of such action.ZE Z {O-ԍ See 47 C.F.R.  1.104(b), 1.106(f).Z With respect to the Bureau's  x.September 19, 1997 action, South Bay's request for reconsideration in the form of a petition to vacate is  xuntimely. This is not the case with respect to the Bureau's November 20, 1997 action; thus, we grant  xSouth Bay's request for reconsideration and petition to vacate with respect to the frequency which was  xthe subject of such action. In this connection, and in accordance with normal procedures, we shall first process South Bay's request with respect to this frequency, as it was filed prior to PSI's application.  S-  x30. As to the remaining PSI authorizations, Section 316 of the Communications Act provides that  x0the Commission may modify any station license or construction permit if, in the judgment of the  x[Commission, such action will promote the public interest, convenience or necessity, or the provisions of  S@- xthe Communications Act will be more fully complied with.EF@ yO-ԍ 47 U.S.C.  316(a)(1). E Because, as discussed above, we find that  x\the Bureau should have conditioned the grant to PSI of the frequencies that were the subject of South  xBay's pending Application for Review and Section 337 pleading upon the outcome of that proceeding,  xwe believe that the public interest will be served by modifying PSI's licenses in such a manner so as to  x=return these frequencies to unassigned status. Specifically, we will modify PSI's license, with respect to  Sx- xthe seven 25 kHz channels (i.e., 175 kilohertz) that were not the subject of South Bay's timely petition  xto vacate, by substituting 175 kilohertz of unassigned narrowband PCS spectrum in the 930 and 940 MHz  xbands for control point purposes for the previouslyassigned seven control point channels in the 470512  xMHz band. The specific narrowband PCS spectrum includes: 930.80930.85 MHz (Channel 21 upper  S- xband only) and 930.90930.95 MHz (Channel 25 upper band only) for use at PSI's Santiago Peak site (33o  S- x42' 39'' N, 117o 32' 4'' W); and 940.90940.95 MHz (Channel 23) and 940.95940.975 MHz (half of  S- xChannel 24) for use at PSI's Mt. Lukens site (34o 16' 8'' N, 118o 14' 20'' W).NG| {O$-ԍ See 47C.F.R. 24.129(c). N These narrowband PCS  xchannels were designated for auction, but we believe that our action here will help to insure that service"bG,N(N(ZZ"  S- xto PSI's subscribers is not interrupted.?HZ {Oh- xԍ As described in paragraph 44 infra, the modification will become final and effective 30 days after release of  xthis order if no protests are filed within that period. The Bureau is afforded delegated authority to resolve any such protests.? Use of the narrowband PCS spectrum by PSI is subject to the  S- xtechnical limitations set forth in Part 24 of our Rules.UI {Ob-ԍ See 47 C.F.R. 24.13124.135.U In this connection, PSI's "service area" at each  S-site is defined as a circle extending 70 miles from the respective coordinates listed above.JJ| {O-ԍ Cf. 47 C.F.R. 24.102.J  S8- C. The South Bay Section 337 Application  S-  nx31. In considering requests under Section 337, we must make an initial determination as to  xwhether the Section has been properly invoked. The Commission is required to take action under this  S- xsection "upon application by an entity seeking to provide public safety services."CK yOF-ԍ 47 U.S.C.  337(c)(1).C We conclude first that  Sp- xSouth Bay's Section 337 pleading is an application under Section 337.MLp {O-ԍ See paragraph 2, supra.M We next address the question  SH -of whether South Bay is an "entity seeking to provide public safety services."MH 0  yO-ԍ Section 337(f) defines the term "public safety services" as services  ` pXxX` ` (A) the sole or principal purpose of which is to protect the safety of life, health, or property; `  yOp- ` ` (B) that are provided --(#`  yO8- ` ` X (i) by State or local government entities; or(#  yO- ` ` X (ii) by nongovernmental organizations that are authorized by(#  yO- ` `  a governmental entity whose primary mission is the provision of(#  yO- ` `  such services; and(#  yOX- ` ` (C) that are not made commercially available to the public by(#`  yO - ` ` the provider.(#` Ʋ  S -  x32. As to the threshold inquiry of eligibility to invoke Section 337, South Bay asserts that it seeks  xythe use of the PLMS frequencies in order to operate a public safety communications system for dispatch  xand tactical operations for its member police and fire departments, which would also permit  S - xinteroperability with public safety agencies in neighboring jurisdictions.N  yO!- x,ԍ South Bay Section 337 pleading at ii and 15. South Bay states that the frequencies would enable it to develop a new system and to implement trunking once UHF trunking equipment becomes available. Considering the fact that the  xentities making up South Bay are local police and fire departments and further considering the description  xof the services to be provided by South Bay using the requested frequencies, we conclude that the purpose  xjunderlying South Bay's request is for the provision of public safety services as defined in Section 337(f). As a result, we conclude that South Bay has met the threshold requirement. " N,N(N(ZZ"Ԍ S-  x 33. We now turn to whether or not South Bay meets the statutory criteria for grant of a waiver  xunder Section 337(c)(1) of the Communications Act. South Bay contends that the five criteria set forth  xLin Section 337(c)(1) are satisfied and therefore the statute compels the Commission to grant South Bay's  xapplication. The statutory criteria indicate that Section 337 requires that a public safety applicant request  xspecific unassigned spectrum. Then, after analysis and consideration of those criteria, the Commission  xeither disapproves the request or assigns the specifically requested spectrum to the applicant. Section 337  xdoes not mandate the Commission to seek out and assign to an applicant spectrum from alternative bands.  xThe plain language of subsection 337(c) provides that grant of a waiver request under this statute is  xrequired only upon a finding that all five conditions are met regarding the spectrum specifically sought  xby an applicant. In a case where any one of the five conditions is not met, the subject waiver will not  Sp- xbe granted. As discussed infra, we find that all five criteria required by Section 337(c)(1) are met with  xrespect to South Bay's request for the eight paging control frequencies in the 470512 MHz band that are  xnow unassigned as a result of our granting in part South Bay's request for reconsideration and petition  S - xto vacate and our modifying PSI's license hereunder.NO  {Ob -ԍ See paragraph 30, supra.N In the Los Angeles metropolitan area, we find that  xthe 470512 MHz band is uniquely suited for public safety use. For these reasons, we grant South Bay's request under Section 337.  SZ-  |x!34. No other spectrum allocated to public safety services is immediately available to satisfy the  S4- x!requested public safety service use. In this case, South Bay has submitted a study prepared by a  xconsulting engineer showing that all Part 90 frequencies and offset frequencies in the Los Angeles Basin  S- xyare licensed, occupied or otherwise unavailable to South Bay.PZ yO- xiԍ "UHF Public Safety Channel Usage Analysis (450512 MHz Frequencies), Los Angeles Basin Area, March, 1995," prepared by Dr. Henry R. Richter, Richter Group, attached as Exhibit G to South Bay Petition. In addition, South Bay submitted a letter  xfrom the Local Frequency Advisor for Southern California certifying that there are currently no UHF,  xVHF or 800 MHz channels available in Southern California that could be assigned for use in the South  xBay area without causing harmful interference to and/or receiving harmful interference from existing  SF- xjpublic safety users.iQXF yO- xԍ Letter from Gary D. Gray, California PublicSafety Radio Association, Inc./APCO Local Frequency Advisor  xfor Southern California, to Dennis R. Warren, Executive Director, South Bay Regional Public Communications Authority (dated June 5, 1995), attached as Exhibit H to South Bay Petition.i Based on our analysis of the information submitted in its Section 337 pleading and  xits Petition for Waiver, we conclude that South Bay has shown that no other public safety spectrum is immediately available in the Los Angeles area.  S-   x"35. The requested use is technically feasible without causing harmful interference to other  S- xspectrum users entitled to protection from such interference under the Commission's regulations. The  xrequested frequencies are immediately adjacent to frequencies used for years by other public safety entities  xkin the Los Angeles area. In addition, South Bay coordinated the use of these frequencies and received  S - x\approval from the Local Frequency Advisor for public safety in Southern California._R  {O|$-ԍ See South Bay Petition at 1618, and Exhibit G._ We conclude,  x>therefore, that South Bay has made a sufficient showing that the use of the frequencies in question is technically feasible and would not interfere with existing licensees. "d R,N(N(ZZ"Ԍ S-  x#36.  The use of the unassigned frequency for the provision of public safety services is consistent  xwith other allocations for the provision of such services in the geographic area for which the application  S- x[is made. South Bay contends that the 470512 MHz band in the Los Angeles area has a "special status"  S- xfor public safety entities.RS yO-ԍ South Bay's Application for Review at 6.R We agree that, in this metropolitan area, public safety entities have come to  xrely upon the 470512 MHz band for their radio communications requirements. The Commission has  xtwice reallocated frequencies in this band and designated them exclusively for public safety use in the Los  xAngeles area. In 1986, at the request of the Los Angeles County Sheriff's Department, the Commission  xcreated 120 frequency pairs for public safety use by reallocating UHF TV Channel 16 (482488 MHz)  S- xfrom Ventura, California.|T\X yO - xԍ Amendment of Parts 2, 73, and 90 of the Commission's Rules and Regulations to Allocate Additional  {O - xChannels in the Band 470512 MHz for Public Safety, Gen. Docket No. 84902, RM3975, Report and Order,  {ON -51Fed. Reg. 4352, 59 RR 2d 910 (1986) (Additional Channels).| The Sheriff's Department received 55 pairs and the remaining 65 pairs were  xmade available to other public safety agencies in the Los Angeles area. Then, in 1989, in response to a  xpetition for rule making filed by five Los Angeles County municipalities for additional public safety  xspectrum in the 470512 MHz band, the Commission noted a significant decline in the use of those  S$ - xfrequencies then allocated for twoway service.(U$ | {O@- xԍ See Flexible Allocation of Frequencies in the Domestic Public Land Mobile Service for Paging and Other  {O -Services, CC Docket No. 87120, Second Report and Order, 4 FCC Rcd 6415 (1989) (Flexible Allocation).( After balancing the competing interests, the Commission  xdetermined to allocate 17 UHF common carrier frequency pairs to the cities for public safety use, three  xpairs to meet the acute need for control channels for widearea paging systems, and four pairs to maintain  S -existing twoway service.GV  {O$-ԍ Id. at 64196420.G The Commission stated:  ~Xx[T]he Los Angeles region is unique in this country in that it has been planning for some  _time to heavily implement mutual aid provisions with equipment operating in the 450512  MHz band, in keeping with the Commission's channel 16 allocation. Because this  equipment cannot operate in the 800 MHz band, effective mutual aid would be hindered  Sif the Los Angeles area public safety institutions involved here could not obtain  frequencies in the 450512 MHz band. We take note of the efforts that have been made  to use the 450512 MHz frequencies efficiently and are satisfied that alternative  SD-frequencies in this part of the spectrum in Los Angeles are not available.OWDj  {ON-ԍ Id. at 6419 (footnote omitted).O   S-  x$37. Based on this history, we agree with South Bay's assertion that the 470512 MHz band has  xLbecome the primary frequency band used by public safety entities in the Los Angeles area. Thus, South  x-Bay's use of the frequencies at issue would be wholly consistent with the Commission's prior public safety allocations in this area.  S,-  x%38. The unassigned frequencies were allocated for their present use not less than 2 years prior  S- x?to the date on which the application will be granted. The Commission allocated the frequencies in" W,N(N(ZZk"  S- xquestion for Part 22 pointtomultipoint control channel use on August 2, 1994.X yOh- x-ԍ Revision of Part 22 of the Commission's Rules Governing the Public Mobile Services, CC Docket No. 92 {O0-115, Report and Order, 9 FCC Rcd 6513, 6635 (1994) (Part 22 Rewrite). This allocation became  xeffective on January 1, 1995. Thus, the frequencies at issue were allocated for their present use more than two years ago.  S`-  _x&39. Granting the application is consistent with the public interest. Based on the record, we  xconclude that South Bay has an immediate need for additional spectrum capacity for public safety  xcommunications, particularly in support of police tactical operations and additional police dispatch  S- xservices.?Y" {O -ԍ See id. at 56.? In addition, South Bay's plans to use the requested frequencies in order to develop a modern  xspectrallyefficient trunked communications system for the use of its members and other interested  xagencies will likewise serve the public interest by advancing the goals of making the most efficient use of spectrum and enhancing interoperability among public safety entities.  S" -  "x'40. We are persuaded by South Bay's contention that its proposed use of the Part 22 PLMS  xkfrequencies in question would allow interoperability between its constituent agencies and neighboring  xjurisdictions, within a much more reasonable implementation time, and at far lower cost than would  xispectrum in another, more separated band. As discussed earlier, the 470512 MHz band currently supports  x most of the public safety communications in the Los Angeles area. Thus, we conclude that no other  SZ- xfrequency band will accommodate the interoperability needs identified by South Bay.ZZZ {O-ԍ See South Bay Section 337 pleading at 37.Z Granting South  xBay's request would provide its member agencies the simplest, most practical, and most economical means  x to establish communications links with one another and with neighboring jurisdictions in daytoday  xoperations and during emergencies. We also believe that denial of South Bay's request and failure to  x-provide some alternative in this frequency band would deny South Bay any realistic nearterm opportunity  xto establish and improve the interoperability of its communications network with nearby public safety  Sj- xagencies, an endeavor which we continue to believe greatly furthers the public interest.[|jF yOP- xwԍ The Commission noted the importance of interoperability when it stated, "[I]nability to communicate hinders  xKcooperation and coordination between public safety agencies on a daytoday basis as well as during emergencies.  xWe believe that the present inability of public safety agencies to communicate with each other is one of the most  {O- xcritical deficiencies in today's public safety communications." Public Safety NPRM, 11FCC Rcd at 12469; see also  {Or- xPublic Safety Wireless Advisory Comm., Final Report 1920, 4548 (Sept. 1996). We note also that the 24 MHz  xZof spectrum recently reallocated to public safety services will likely be unavailable to public safety entities in the Los Angeles area until the end of the DTV transition, presently scheduled for the year 2006. Thus, we find  xthat South Bay has adequately demonstrated that the grant of its Section 337(c) request is consistent with  xthe public interest. Accordingly, we reinstate South Bay's license application and grant it pursuant to  S-Section 337.\  yO$-ԍ The grant is conditioned upon and will become effective when PSI's license modification is final.  S-  x(41. This is one of the first waiver requests we have received pursuant to Section 337 of the  xCommunications Act. While we note that we intend to implement the statutory amendments resulting  x{from the Balanced Budget Act of 1997 in a future proceeding, in the interim we provide additional"R\,N(N(ZZ"  xguidance to public safety applicants regarding how a Section 337 application could be structured and what  xtypes of information could be included, so as to facilitate thorough and informed review. Specifically,  S- x.we recommend that such requests: 1) be in writing and accompanied by a completed application;M] {O-ԍ See 47 U.S.C.  337(c)(1).M 2) be  xfrom a state or local government entity or a nongovernmental organization authorized to provide public  xMsafety services, as defined by 47 U.S.C. 337, by a government entity whose primary mission is the  S8- x[provision of such services_^8Z {O2-ԍ See 47 U.S.C.  337(c)(1) and 337(f)(1)._; 3) expressly seek relief under 47 U.S.C. 337;M_8 {O -ԍ See 47 U.S.C.  337(c)(1).M 4) fully describe the public  xsafety services the applicant is seeking to provide, including whether their sole or primary purpose is the  xprotection of the safety of life, health or property, and whether the services are made commercially  S- xavailable to the public by the applicant;_`~ {O -ԍ SeeĠ47 U.S.C.  337(c)(1) and 337(f)(1)._ 5) specifically identify the requirements of the Communications  S- x>Act and all of the Commission's Rules for which the applicant seeks a waiver;Ma {OH-ԍ See 47 U.S.C.  337(c)(1).M 6) provide sufficient  xinformation, in such detail as may be required to enable the Commission to make the findings outlined  SH - xin 47 U.S.C. 337(c);MbH  {O-ԍ See 47 U.S.C.  337(c)(1).M and 7) are filed with the Commission as required under the Rules governing  S -PLMR Services applications not requiring fees.Lc 4  {O-ԍ See 47 C.F.R.  1.192(f).L  S -  x)42. Application for Review. Because we are granting South Bay's request under Section 337, we  xydo not need to decide South Bay's Application for Review. South Bay's Application for Review is moot and, accordingly, shall be dismissed.  S2- V. CONCLUSION ă  S-  x*43. For the foregoing reasons, we deny LCSI's Application for Review and find that the Bureau  xcorrectly determined that LCSI failed to demonstrate unique or unusual circumstances or the absence of  x[reasonable alternative solutions under our Rules, thereby failing to warrant grant of its waiver request. In  xaddition, because we find that the Bureau acted in error in granting PSI's applications without conditioning  SB- xthose licenses on the outcome of the Applications for Review, we propose to modify PSI's licenses  xLpursuant to 47 U.S.C. 316(a)(1) and substitute 175 kilohertz of unassigned narrowband PCS spectrum  xLin the 930 and 940 MHz bands that may be used for control point purposes for the previouslyassigned  S- xcontrol point frequencies (i.e., 175 kilohertz) in the 470512 MHz band. Finally, we conclude that South  S- xBay's request pursuant to Section 337 meets the necessary criteria under that statute for waiver of our  xRules. Therefore, we grant South Bay's application under Section 337 and reinstate its license application. Accordingly, South Bay's Application for Review is moot and is dismissed. " c,N(N(ZZz"Ԍ S-w VI. ORDERING CLAUSES ă  S-  x+44. Accordingly, IT IS PROPOSED that, pursuant to Section 316 of the Communications Act  xyof 1934, as amended, 47 U.S.C. 316, PSI's license be modified to substitute 175 kilohertz of unassigned narrowband PCS spectrum in the 930 and 940 MHz bands for control point purposes as described herein.  S-  x,45. IT IS ORDERED that, pursuant to Section 316 of the Communications Act of 1934, as  xamended, 47 U.S.C. 316, this proposed modification shall become final and effective 30 days after  xrelease of this order if no protests are filed within that period. The Wireless Telecommunications Bureau  S-is delegated authority to dispose of any such protests in accord with Section 316(a).  SH -    x-46. IT IS FURTHER ORDERED that, pursuant to Section 337(c) of the Communications Act  xof 1934, as amended, 47U.S.C. 337(c), the application filed by the South Bay Regional Public  xCommunications Authority for the grant of its license application concerning 470.0125, 470.0375,  S - x473.0125, 473.0375, 506.0125, 506.0375, 509.0125, and 509.0375 MHz frequencies IS REINSTATED  xand associated Petition for Waiver pursuant to Section 337(c) of the Communications Act of 1934, as  S - xjamended, 47U.S.C. 337(c), IS CONDITIONALLY GRANTED and will become effective on the effective date of the license modification referred to in paragraphs 44 and 45 above.  S-  x.47. IT IS FURTHER ORDERED that the Application for Review filed by the South Bay  S-Regional Public Communications Authority IS DISMISSED .  S-  Mx/48. IT IS FURTHER ORDERED that, pursuant to the authority of Sections 4(i) and 303(r) of  xthe Communications Act of 1934, as amended, 47U.S.C. 154(i) and 303(r), and Section 1.115 of the  xCommission's Rules, 47C.F.R. 1.115, the Application for Review filed by License Communications  S-Services, Inc., IS DENIED .  S-  x049. IT IS FURTHER ORDERED that, pursuant to Section 1.106(k) of the Commission's Rules,  S- x47C.F.R. 1.106(k), South Bay's Petition to Vacate and/or Modify Authorizations IS GRANTED IN  Sx- xPART and DISMISSED IN PART as described herein, and PSI's authorization for 509.0375 MHz is vacated and its application is dismissed.  S-  x150. IT IS FURTHER ORDERED that all motions objecting to or seeking dismissal of various  S-pleadings related to the Applications for Review ARE DENIED . x` `  hh@hFEDERAL COMMUNICATIONS COMMISSION x` `  x` `  hh@hMagalie Roman Salas  SH$-x` `  hh@hSecretary