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NHDOT states that construction of additional sites would be especially expensive in New Hampshire because much of the State is federal or state park land, where construction and  {O,development are prohibited or strictly limited. Id. at 7, 12. It also argues that inessential construction in such  {O,areas is not in the public interest. Id. at 12.  NHDOT also states that vacant VHF (150174  S,MHz band) frequencies allocated for public safety services "are practically nonexistent" in its region.o2 yO.,#C\  P6QɒP#э NHDOT Comments at 1.o  S,5. The commenters contend that granting NHDOT's request would be in the public interest.F2 {On ,#C\  P6QɒP#э See Frederick G. Griffin, P.C., Comments at 1; James A. Medlock Comments at 1; NHDRED Comments at 1; NUSC Comments at 1; and Richard C. Nowakowski Comments at 2. The New Hampshire Office of Emergency Management states that an upgrade of NHDOT's system  S8,will enable public safety agencies to respond to emergencies more effectively.o82 yOx,#C\  P6QɒP#э NHOEM Comments at 1.o 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  S,protect the safety of life, health, and property the primary consideration.0 2 {O,#C\  P6QɒP#э APCO Comments at 34; see also Elk Grove F.D. Comments at 1; and NYSTEC Comments at 4. It notes that frequencies in  S,the recentlyreallocated 700 MHz band 2 {O,#C\  P6QɒP#э See Reallocation of Television Channels 6069, the 746806 MHz Band, ET Docket No. 97157, Report  {O,and Order, 12 FCC Rcd 22953, 22958 (1997). may not be available in some parts of the country until at  Sp,least 2006, and that the 700 MHz band is not appropriate for all users.p2 {O.,#C\  P6QɒP#э APCO Comments at 23; see also Richard C. Nowakowski Comments at 1.  S , III. DISCUSSION ă  S , A. Waiver under Section 337(c) of the Act  SX,6. Section 337(c)(1) of the Act, which was enacted by the Balanced Budget Act of 1997,X01Í ÍX01Í Í#C\  P6QɒP#X+ yO,#X\  P6G;ɒP#э Pub. L. No. 10533, Title III, 111 Stat. 251 (1997).#&J\  P6Qu&P# provides as follows: XUpon 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 "@,>(>(ZZ"ԌX` ` (A) no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use;  X` ` (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;  X` ` (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;  X` ` (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   Sp,X` ` (E) granting such application is consistent with the public interest.#C\  P6QɒP#X01Í ÍX01Í ÍMp& yO ,Ѝ 47 U.S.C.  337(c)(1).M#&J\  P6Qu&P#  Thus, the initial inquiry in evaluating a Section 337 request is whether the applicant seeks to use  S ,unassigned frequencies for the provision of public safety services.L\ X W yO,Ѝ License Communications Services., Inc., South Bay Regional Public Communications Authority, and  {O,Paging Systems, Inc., Memorandum Opinion and Order, 13 FCC Rcd 23781, 23795 (1998) (South Bay Order);  {O,BBA NPRM,  55.L If this threshold is met, then the  S ,statutory criteria are reviewed. A failure to satisfy any one of the criteria will result in denial of the  S ,application. | W {O,Ѝ South Bay Order, 13 FCC Rcd at 23796; BBA NPRM,  56 .  SZ,7. Section 337(f)(1) defines "public safety services" as services X` ` (A) the sole or principal purpose of which is to protect the safety of life, health, or property;  ` ` (B) that are provided X` `  (i) by State or local government entities; or  XX` `  (ii) by nongovernmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services; and `  S,X` ` (C) that are not made commercially available to the public.M W yO,Ѝ 47 U.S.C.  337(f)(1).M  NHDOT is a governmental entity. Its function in maintaining safe roadways protects the safety of life,  Sz,health, and property. z W {O",Ѝ See, e.g., Final Report of the Public Safety Wireless Advisory Committee to the Federal Communications  {O#,Commission, Sept. 11, 1996, at 12. 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. " ,>(>(ZZ"Ԍ S,8. We also conclude, however, that NHDOT has not satisfied all of the statutory criteria for a  S,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  S`,MHz band.M` W {O,Ѝ See Petition at 12.M 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  SH ,make the other findings required by Section 337(c)(1) of the Act.cH Z W {OB ,Ѝ See South Bay Order, 13 FCC Rcd at 23796.c  S , B. Waiver under Section 1.925 of the Commission's Rules  S ,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  S,alternative.O W yOD,Ѝ 47 C.F.R.  1.925(b)(3).O 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.  S, 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 oneway or twoway  S,commercial paging services,J| W yO,Ѝ 47 C.F.R.  22.561.J 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  Sx,proposed a transition from sitebased licensing of these frequencies to geographic licensing. \x  W yO$!,Ѝ Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging  {O!,Systems, Notice of Proposed Rule Making, WT Docket No. 9618, 11 FCC Rcd 3108, 3113 (1996); see also  {O",First Report and Order, WT Docket No. 9618, 11 FCC Rcd 16570 (1996) (First Paging Report and Order). The Commission believes that geographic licensing will facilitate the development of paging systems and  S(,serve the public interest.=!(0 W {O%,Ѝ Id.= As part of the transition to a different licensing approach, the Commission suspended the acceptance of applications for these frequencies from nonincumbents in order to deter" !,>(>(ZZ"  S,speculative applications and to ensure that the goals of the rulemaking are not compromised.{" W {Oh,Ѝ First Paging Report and Order, 11 FCC Rcd 16570, 1657273 (1996).{ The Commission determined that the temporary suspension (with modifications for incumbents) should continue despite virtually unanimous comments in opposition in order to preserve the current  S,availability of frequencies.C#Z W {O,ԍ Id. at 1657516586.C Granting NHDOT's waiver request thus would undermine the purpose of this temporary suspension by removing the frequencies from their future availability to paging operators. Therefore, NHDOT has not met the first alternative standard under Section 1.925 for justification of a waiver of the Commission's Rules.  S, 11. We also find that a waiver is not justified under the second alternative standard. NHDOT argues that the challenges presented by the topography of New Hampshire constitute an unusual circumstance. NHDOT notes that approximately onethird of the State is mountainous, while other  SH ,parts are at sea level.B$H  W yO,Ѝ Petition at 7.B NHDOT also states that New Hampshire is the most heavilyforested State in  S ,the country.C% | W {O<,Ѝ Id. at 8.C 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  S ,changing and unique terrain features.?&\  W yO~,Ѝ Application of New Hampshire for Facilities in the Public Land Mobile Service at Various Locations in  {OF,the State of New Hampshire, Memorandum Opinion and Order, 11 FCC Rcd 5258, 5262 (WTB 1996) (New  {O,Hampshire Order).? Therefore, we conclude that mountainous and forested terrain does not constitute a sufficiently unusual or unique circumstance to merit a waiver of the  S ,Commission's Rules under the facts presented here.Q' 2 W {OR,Ѝ Id. We realize that this decision subsequently was modified as part of the approval of a settlement  {O,agreement, and the requested waiver granted. See In the Matter of Applications of State of New Hampshire and McCormick & Jacobson for Facilities in the Public Land Mobile Service and Private Land Mobile Radio Service  {O,at Various Locations in the State of New Hampshire and Windsor, Vermont, Memorandum Opinion and Order,  {Ox,14 FCC Rcd 3607, 3615 (WTB 1999) (New Hampshire Waiver). However, the waiver was granted pursuant to the first alternative standard under Section 1.925(b) of the Commission's Rules that the terrain was one reason why granting the waiver would be in the public interest so the later decision did not revisit the earlier conclusion that the topography of New Hampshire does not constitute a unique or unusual circumstance  {O,justifying a waiver under the second alternative standard under Section 1.925(b). See id. Moreover, other factors not present here, such as the Commission's longstanding policy of encouraging settlements between  {O,!,mutually exclusive applicants in order to speed service to the public, contributed to that decision. See id.Q 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  S,another.x(\ W yOF%,Ѝ Indeed, in a waiver request seeking the use of VHF frequencies, the State of New Hampshire argued that  {O&,the State's geography made all higher frequency bands including the UHF band unsuitable for a statewide  {O&,system. See New Hampshire Order, 11 FCC Rcd at 5262.x"(,>(>(ZZ"Ԍ S,ԙ 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.  S,Public safety frequencies in the 220 MHz band are available in New Hampshire,Z) W yO,Ѝ A review of the Commission's databases reveals no licenses or pending applications for 220 MHz public safety spectrum anywhere in New Hampshire. The Wireless Telecommunications Bureau had frozen the acceptance of applications for these frequencies, but this freeze was lifted shortly before NHDOT filed its waiver  {OH,request. See Filing Freeze to Be Lifted for Applications under Part 90 for the Fifteen Public Safety Channel  {O,Pairs in the 220222 MHz Band, Public Notice, 14 FCC Rcd 2758 (WTB 1998).Z and the band has  S`,excellent propagation characteristics.*$`| W yO| ,Ѝ Amendment of Part 2 of the Commission's Rules Regarding the Allocation of the 216225 MHz Band,  {OD ,Report and Order, GEN Docket No. 8714, 3 FCC Rcd 5287, 5289 (1988); Amendment of Part 2 of the  {O ,Commission's Rules Regarding the Allocation of the 216225 MHz Band, Notice of Proposed Rule Making, GEN Docket No. 8714, 2 FCC Rcd 796, 796 (1987). NHDOT has presented no reason why it cannot construct and  S8,operate a 220 MHz system.+8h W yO@, wԍ Also, the potential delays in the availability of the 700 MHz band noted by APCO will be experienced mostly  win our largest cities, none of which are in New Hampshire, so this alternative cannot be ruled out without further  {O, wanalysis. See The Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State  {O, wand Local Public Safety Agency Communication Requirements Through the Year 2010, First Report and Order and  {Od,Third Notice of Proposed Rulemaking, WT Docket No. 9686, 14 FCC Rcd 152, 236 (1998). Further, the State of New Hampshire is constructing a statewide, multi S,agency telecommunications system using VHF frequencies in the 152 MHz band., W {O,Ѝ See Applications of State of New Hampshire and McCormick & Jacobson, 14 FCC Rcd 3607 (1999). 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.  SH , IV. CONCLUSION ă  S , 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.  S@,e V. ORDERING CLAUSES ă  S, 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",,>(>(ZZ4" Transportation to use frequencies 454/459.025, 454/459.050, 454/459.125, 454/459.200, 454/459.225,  S,and 454/459.525 MHz at the requested locations for public safety services ARE DENIED .  S,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. ` `  Ghh~FEDERAL COMMUNICATIONS COMMISSION  SH , ` `  Ghh~Kathleen O'Brien Ham  S ,` `  Ghh~Deputy Chief, Wireless Telecommunications Bureau