*Pages 1--7 from Microsoft Word - 5470.doc* Federal Communications Commission DA 00- 2803 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of STATE OF TENNESSEE DEPARTMENT OF TRANSPORTATION For a Public Safety License Pursuant to Section 337 of the Communications Act of 1934, as Amended ) ) ) ) ) ) ) ) ) File No. D132332 ORDER ON RECONSIDERATION Adopted: December 11, 2000 Released: December 13, 2000 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION AND EXECUTIVE SUMMARY 1. We have before us a petition for reconsideration (“ Petition”) 1 filed by the State of Tennessee, Department of Transportation (“ TNDOT”) of a decision by the Deputy Chief, Wireless Telecommunications Bureau (Bureau) 2 denying an application and waiver request, pursuant to Section 337 of the Communications Act of 1934, as amended (“ Act”). 3 Additionally, TNDOT has submitted a Supplement 4 and Further Supplement 5 to the Petition. For the reasons below, we affirm the Order and deny TNDOT’s Petition. II. BACKGROUND 2. On October 4, 1999, TNDOT filed an application and waiver request pursuant to Section 337 of the Act to permit it to use three VHF frequencies, 157.950 MHz, 157.980 MHz and 158.080 MHz, for its public safety communications system. 6 On June 5, 2000, the Bureau denied TNDOT’s Section 337 1 State of Tennessee Department of Transportation Petition for Reconsideration (filed July 5, 2000) (Petition). 2 State of Tennessee Department of Transportation, Order, 15 FCC Rcd 9347 (2000) (Order). 3 See 47 U. S. C. § 337; see also Balanced Budget Act of 1997, Pub. L. No. 105- 33, 111 Stat. 252 (1997), § 3004 (Balanced Budget Act). 4 State of Tennessee Department of Transportation Supplement to Petition for Reconsideration (filed August 18, 2000) (Supplement). 5 State of Tennessee Department of Transportation Further Supplement to Petition for Reconsideration (filed October 25, 2000) (Further Supplement). 6 FCC File No. D132332, State of Tennessee, Department of Transportation Application (filed October 4, 1999) (Application). Operation on these frequencies are governed by the Commission’s Part 22 Public Mobile Radio Service rules. See 47 C. F. R. §§ 22.561- 22.589. 1 Federal Communications Commission DA 00- 2803 2 waiver request and dismissed the associated application. 7 The Bureau found that TNDOT applied for frequencies already assigned. 8 With regard to the one frequency that was unassigned for which TNDOT applied, the Bureau determined that TNDOT failed to show that no other allocated spectrum is immediately available for the requested public safety use and failed to show that the requested use is technically feasible without causing harmful interference to other spectrum users entitled to protection from such interference under the Commission’s rules. 9 TNDOT filed its Petition on July 5, 2000, 10 and supplemented its filing on August 18, 2000 11 and October 25, 2000. 12 III. DISCUSSION 3. TNDOT requested three channel pairs in its application: 152.690/ 157.950 MHz, 152.720/ 157.980 MHz, and 152.780/ 158.040 MHz. In its Petition, TNDOT does not dispute the Order’s conclusion that the 152.720/ 157.980 MHz, and 152.780/ 158.040 MHz channel pairs were already assigned. 13 TNDOT suggests that it will amend its application to substitute 152.810/ 158.070 MHz for the two channel pairs that were already assigned. 14 We will not consider TNDOT’s new proposal. An amendment to an application requesting to add a frequency for which the applicant is not currently authorized is a major amendment 15 and considered a new application under the Commission’s rules. 16 If TNDOT wishes to pursue this proposal, it should submit a new application. That application would then be placed on public notice. 4. TNDOT did apply for 152.780/ 158.040 MHz in its original application. 17 In its Petition, TNDOT offers a new engineering study to demonstrate, among other things, that 152.780/ 158.040 MHz will not cause harmful interference to other licensees. 18 We note that Section 1.106( c) of the Commission’s rules provides that new facts may be presented in a petition for reconsideration only if the facts relate to events that occurred or circumstances that changed since the last opportunity to present such matters; the facts were not known to the petitioner, and could not reasonably have been learned prior to such 7 See Order. 8 See Order at ¶ 7. 9 See Order at ¶¶ 9- 10. 10 See Petition.. 11 See Supplement. 12 See Further Supplement. 13 See Petition at 2. 14 Id. at 2. 15 47 C. F. R § 1.929( a)( 6). 16 47 C. F. R § 1.927( h). 17 See Application. 18 Id. at 3. 2 Federal Communications Commission DA 00- 2803 3 opportunity; or the public interest requires consideration of the facts. 19 In this case, we will consider the new engineering analysis with respect to the 152.780/ 158.040 MHz frequency pair because we believe the public interest will be served by considering this new and useful information. 20 5. Section 337 Analysis. Section 337 of the Act provides public safety entities with a statutory means of obtaining a waiver of the Commission's rules to permit them to use frequencies not allocated for public safety use. 21 Subsection (c)( 1) of Section 337 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. 22 6. The plain language of subsection (c) provides that a waiver request under this section shall be granted only upon a finding that all five conditions are met regarding the spectrum specifically sought by an applicant. 23 Where any one of the five conditions is not met, we will not grant relief pursuant to Section 337. 24 We note that in the Order, we determined that the purpose of TNDOT’s service is to protect the 19 47 C. F. R. § 1.106( c); see e. g. County of Burlington, New Jersey, Order on Reconsideration, DA 00- 814 (Apr. 12, 2000). 20 See County of Burlington, New Jersey, Order on Reconsideration, DA 00- 814 ¶ 8 (WTB rel. Apr. 12, 2000) (Burlington Recon); see also County of Sacramento, California, Order on Reconsideration, 15 FCC Rcd 12600 ¶ 11 (2000) (Sacramento Recon). 21 See 47 U. S. C. § 337. 22 47 U. S. C. § 337( c)( 1); see also Balanced Budget Act, § 3004. 23 See 47 U. S. C. § 337( c)( 1). 24 South Bay Regional Public Communications Authority, Memorandum Opinion and Order, 13 FCC Rcd 23781, 23796 ¶ 33 (1998) (South Bay); Implementation of Sections 309( j) and 337 of the Communications Act of 1934, as Amended, Notice of Proposed Rulemaking, WT Docket No. 99- 87, 14 FCC Rcd 5206, 5234 ¶ 56 (1999); Implementation of Sections 309( j) and 337 of the Communications Act of 1934, as Amended, WT Docket No. 99- 87, Report and Order and Further Notice of Proposed Rulemaking, FCC 00- 403, ¶ 131 (rel. Nov. 20, 2000) (BBA Report and Order). 3 Federal Communications Commission DA 00- 2803 4 safety of life, health or property, as required by Section 337( f). 25 Thus, we continue to believe that TNDOT has met that threshold requirement. 7. In its Petition, TNDOT asserts that its new engineering analysis shows that it satisfies Section 337( c)( 1)( B) because it allegedly demonstrates that “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.” 26 In that connection, Section 22. 567 of the Commission’s rules describes the means used to determine whether a proposed operation would cause interference to other facilities. 27 8. Here, TNDOT proposes operation on the frequency pair 152.780/ 158.040 MHz at two sites: Arlington (Shelby County), Tennessee and Johnson City (Washington County), Tennessee. 28 At the Johnson City site, our review of the coordinates shows that the coordinates offered by TNDOT 29 do not correspond to the location of Johnson City, Tennessee. The coordinates provided are 471 miles from Johnson City, TN. 30 Therefore, we cannot find that TNDOT has met its obligation to show that no harmful interference will be caused by its authorization. At the Arlington site, we find that using the assignment criteria described in Section 22.567 of the Commission’s rules, TNDOT complies with Section 337( c)( 1)( B). 9. In the Order, we concluded that TNDOT’s proposal also failed to comply with Section 337( c)( 1)( A) of the Act, which requires TNDOT to show that “no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use.” 31 In the Order, we determined that TNDOT must show that “no public safety frequencies in any band are unassigned,” as opposed to frequencies in TNDOT’s preferred band. TNDOT argues that the Order misinterprets Section 337( c)( 1)( A) and states that the Commission must consider the “requested public safety service use” when determining whether other allocated spectrum is immediately available. 32 In its argument, TNDOT equates “requested public safety service use” with the type of radio system the applicant operates. 33 We disagree with this interpretation. Neither the language in the statute nor the legislative history indicate that Congress intended for the type of radio system to control the determination whether there is spectrum allocated to public safety services that is immediately available. The legislative history only provides that “spectrum 25 Order at ¶ 6. 26 47 U. S. C. § 337( c)( 1)( B). 27 47 C. F. R. § 22.567. 28 Petition at Attachment. 29 Id. TNDOT gives N35- 18- 30/ W89- 39- 00 as the coordinates for Johnson City, TN. Our records indicate that those coordinates correspond with Arlington, TN. 30 The distance from the coordinates provided, which corresponds to Arlington, TN, and Johnson City, TN is 471 miles. See Rand McNally Road Atlas available at http:// www. randmacnally. com. 31 47 U. S. C. § 337( c)( 1)( A). 32 Petition at 3- 6. 33 Id. at 4- 5. 4 Federal Communications Commission DA 00- 2803 5 must not be immediately available on a frequency already allocated to public safety services.” 34 TNDOT’s interpretation is also contrary to the Commission’s and Bureau’s analysis of other Section 337 waiver requests. 35 We note that in each instance where a Section 337 application has been granted, the applicant examined every band of spectrum allocated for public safety use and showed that no spectrum in those bands was immediately available. 36 Furthermore, in the BBA Report and Order, the Commission has again stated that the statute requires that there be no unassigned public safety spectrum, or not enough for the proposed public safety use, in any band in the geographic area in which the Section 337 applicant seeks to provide public safety services. 37 Thus, we find that our analysis of the requirements of Section 337( c)( 1)( A) was proper and consistent with Commission precedent. 10. In its Further Supplement, TNDOT offers a statement from its engineering consultant that operation on 800 MHz band channels cannot be effectively combined in its existing radio system. TNDOT’s consultant asserts that use of 800 MHz band frequencies, even if possible, would undermine interoperability between TNDOT and other public safety agencies that operate in the VHF band. 38 While we have considered interoperability in determining whether the grant of a Section 337 request would be in the public interest, 39 in determining whether no other spectrum allocated for public safety service is immediately available, we have not limited our analysis to frequencies that are interoperable with the applicant’s existing system. 40 Similarly, TNDOT argues that the propagation characteristics of 800 MHz band channels and the cost of using 800 MHz channels render these channels unavailable. 41 We disagree. In previous Section 337 decisions, we have explained that these factors are not determinative. 42 34 H. R. Rep. No. 111, 103 rd Cong., 1 st Sess. at 579- 80 (1993). 35 See, e. g., New Hampshire Department of Transportation, Memorandum Opinion and Order, 14 FCC Rcd 19438 ¶ 8 (WTB 1999) (NHDOT) (applicant failed to demonstrate that no other spectrum allocated to public safety services is immediately available when it argues that an 800 MHz system would be more expensive than an UHF system); see also South Bay, 13 FCC Rcd 23781, 23796 ¶34 (1998) (applicant submitted a letter from a frequency coordinator stating that there were no unassigned public safety frequencies in the applicant’s area). 36 See e. g. San Mateo, 14 FCC Rcd 19002 ¶ 11and County of Sacramento, Order, DA 99- 2959 (WTB rel. Dec. 21, 1999) (Sacramento). 37 See BBA Report and Order at ¶ 132 (concluding, in part, that the statutory language is clear in that it expressly requires that no other spectrum allocated to public safety services be available without any qualification). 38 Further Supplement at Attachment. 39 See South Bay, 13 FCC Rcd at 23792 ¶40. 40 South Bay, 13 FCC Rcd 23781 (granting the application because, among other things, South Bay provided evidence that no 800 MHz, 150- 174 MHz, 450- 470 MHz or 470- 512 MHz public safety frequencies were available in its area); see also County of San Mateo, California, Memorandum Opinion and Order, 14 FCC Rcd 19002 (1999) (San Mateo) (finding that a study showing no Part 90 spectrum is available to San Mateo and a new certification that no UHF, VHF or 800 MHz channels are available satisfied Section 337( c)( 1)( A)). 41 Further Supplement at Attachment. 42 NHDOT, 14 FCC Rcd 19442 ¶ 8; see also Hennepin County, Order, 14 FCC Rcd 19422 ¶ 8 (1999) (Hennepin). 5 Federal Communications Commission DA 00- 2803 6 Consequently, in this matter, we conclude TNDOT has not met its burden to show that no other spectrum allocated for public safety service is immediately available. 11. Finally, on August 18, 2000, TNDOT submitted a Supplement to its Petition requesting a waiver, in accordance with Section 1.925 of the Commission’s rules, to enable it to use the paging frequencies it requested in its October 4, 1999 application. 43 Section 1.925 of the Commission’s rules permits waiver of the Commission’s rules if: (i) 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 (ii) in view of the unique or unusual circumstances of the instant case, application for the rule( s) would be inequitable, unduly burdensome or contrary to public interest or the applicant has no reasonable alternative. 44 TNDOT references the prior submissions for evidence that the required showing has been made. 45 12. We find that the purpose of the Part 22 rules is served, and not frustrated, by applying these rules to this case. The frequencies requested by TNDOT are allocated for one- way or two- way paging operations, and in so doing, the Commission has determined that the allocation of those frequencies for commercial paging services is in the public interest. 46 Additionally, the technical requirements are imposed to ensure that existing licensees will not be subject to harmful interference. 47 We also note that the Commission has adopted geographic area licensing and competitive bidding rules for paging services in the 152- 159 MHz band. 48 The Paging Second Report and Order was issued to require transition to geographic area licensing for several bands, including the 152- 159 MHz band, and to require resolution of mutually exclusive applications via the competitive bidding process. 49 We cannot conclude that the underlying purpose of the Paging Second Report and Order would be frustrated by application to the instant case. We also conclude that the underlying purpose of the Paging Second Report and Order would be served by application to the instant case. TNDOT has also failed to demonstrate that unique or unusual factual circumstances exist. 50 Accordingly, we find that it has not met its burden of showing that a waiver pursuant to Section 1.925 of the Commission’s rules is justified. 43 See Supplement at 1- 2. 44 47 C. F. R. § 1.925. 45 See Supplement at 1. 46 47 C. F. R. § 22.561. 47 TNDOT has not made a showing that the proposed use of the frequency pair 152.780/ 158.040 MHz in Johnson City, TN satisfies the technical channel assignment criteria. 47 C. F. R. § 22.567. 48 Revision of Part 22 and Part 90 of the Commission’s Rules to Facilitate Future Development of Paging Systems and Implementation of Section 309( j) of the Communications Act – Competitive Bidding, WT Docket No. 96- 18, Second Report and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd 2732 (1997) (Paging Second Report and Order). 49 Id. at 2748 ¶ 23. 50 47 C. F. R. § 22.567. 6 Federal Communications Commission DA 00- 2803 7 IV. CONCLUSION 13. We will not consider TNDOT’s proposal to specify new frequencies that were not proposed in its original application. We find that TNDOT 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 the requested use is technically feasible without causing harmful interference to other spectrum users entitled to protection from such interference under the Commission’s rules with respect to 152.810/ 158.070 MHz pair in Johnson City, Tennessee. We further find that TNDOT 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 with respect to 152.810/ 158.070 MHz pair. 14. We also conclude that TNDOT has not demonstrated that a waiver, pursuant to Section 1.925 of the Commission’s rules, is warranted under the circumstances presented. Adhering to the geographic area licensing, competitive bidding and interference protection requirements serves the underlying purpose of the Commission’s rules. V. ORDERING CLAUSES 15. IT IS ORDERED that pursuant to Section 4( i) of the Communications Act of 1934, as amended, 47 U. S. C. § 154( i), that the “Motion for Leave to Submit Supplement to Petition for Reconsideration and Request for Waiver” and the “Motion for Leave to Submit Supplement to Petition for Reconsideration and Request for Waiver” filed by State of Tennessee Department of Transportation on August 18, 2000 and October 23, 2000, respectively, ARE GRANTED. 16. IT IS ORDERED that pursuant to Section 4( i) of the Communications Act of 1934, as amended, 47 U. S. C. § 154( i), and Sections 1.106 and 1.925 of the Commission’s rules, 47 C. F. R. §§ 1.106, 1.925, the petition for reconsideration filed on July 5, 2000 by State of Tennessee Department of Transportation IS 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 COMMUNICATIONS COMMISSION Kathleen O’Brien Ham Deputy Chief, Wireless Telecommunications Bureau 7