*Pages 1--4 from Microsoft Word - 6356.doc* Federal Communications Commission DA 01- 160 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) COUNTY OF LOS ANGELES, CITY OF ) LOS ANGELES, CITY OF LONG BEACH, ) and CITY OF BURBANK, CALIFORNIA ) ) Request for Declaratory Ruling Regarding ) Use of the 2450- 2483.5 MHz Band for ) Airborne Video Public Safety Communications ) ORDER Adopted: January 23, 2001 Released: January 24, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. On September 1, 1999, the County of Los Angeles, and the Cities of Los Angeles, Long Beach, and Burbank, California (the Petitioners) jointly filed a Request for Declaratory Ruling (Request) regarding the use of the 2450- 2483.5 MHz (2. 4 GHz) band for public safety operations. 1 This Order grants in part and denies in part the Petitioners' Request. 2. Background. The 2.4 GHz band is allocated for shared fixed, base, or mobile use under Part 74 (Television Broadcast Auxiliary Services), Part 90 (Public Safety Pool, Industrial/ Business Pool, and Radiolocation Service), and Part 101 (Fixed Microwave Services). 2 The Petitioners state that licensed users of the 2.4 GHz band in the Los Angeles metropolitan area include television stations that operate ground- based and airborne video equipment and public safety agencies that are increasingly using the band for live airborne video. 3 Pursuant to Section 74.604 of the Rules, 4 broadcasters in the Los Angeles area have established voluntary frequency coordination procedures for their use of the 2. 4 GHz band. 5 The Petitioners state that while Part 90 licensees are not required to abide by or participate in this frequency coordination process, local public safety licensees have cooperated with the broadcasters’ coordination committee to avoid harmful interference. 6 However, the Petitioners state that the frequency coordination process that is in place favors broadcasters, and results in public safety licensees not gaining 1 Request for Declaratory Ruling, filed September 1, 1999, by the County of Los Angeles, the City of Los Angeles, the City of Long Beach, and the City of Burbank, California (Request). On September 16, 1999, the Society of Broadcast Engineers Inc. (SBE) filed comments in opposition to the Request. 2 47 C. F. R. §§ 74.602( a), 90. 20( c)( 3), 90.35( b)( 3), 90. 103( b), 101.101. 3 Request at 1. 4 47 C. F. R. § 74. 604. 5 Request at 4. 6 Id. 1 Federal Communications Commission DA 01- 160 2 access to the band for critical emergency operations. 7 Against this backdrop, the Petitioners seek clarification of the relative rights and privileges of broadcasters and public safety agencies in the use of the 2. 4 GHz band. 8 Specifically, the Petitioners seek clarification regarding the status of licenses in the 2. 4 GHz band, access to the band during emergency situations, the frequency coordination process in the 2. 4 GHz band, and the status of airborne Part 90 operations. 3. Discussion. Pursuant to Section 1.2 of the Commission’s Rules, 9 the Commission may issue a declaratory ruling at any time to terminate a controversy or to remove uncertainty. The Commission has wide discretion within this framework to determine whether a declaratory ruling is necessary. 10 In the instant matter, the Petitioners frame their request as a need for rule clarification. 4. First, the Petitioners seek clarification that broadcast and public safety licensees have co-equal status in the 2.4 GHz band. 11 Sections 90.20( d)( 73), 90. 35( c)( 74), 90. 103( c)( 9), and 74.602( a)( 1) of the Rules specifically state that the 2.4 GHz band is shared with other communications services. 12 Unless otherwise specified, 13 sharing entails using frequencies on a co- equal basis. Therefore, we believe that further clarification of the Rules to indicate co- equal status between broadcast and public safety licensees is unnecessary. 5. Similarly, we deny the Petitioners’ request for clarification that public safety users should receive “priority” access to the 2. 4 GHz band during emergency situations. 14 Upon a review of the pertinent sections, the Commission’s Rules clearly indicate that status of public safety licensees on these frequencies is equal to that of broadcasters, but not greater. 15 7 Id. at 3. 8 Id. at 1, 2. 9 47 C. F. R. 1.2 (“ The Commission may, in accordance with section 5( d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty”). See 5 U. S. C. § 554( e). 10 See Applications of Clarklift of San Jose, Inc. and Moore Material Handling Group, Order on Reconsideration, 15 FCC Rcd 4616 (PSPWD, WTB 2000). 11 Request at 5. 12 47 C. F. R. §§ 90.20( d)( 73), 90. 35( c)( 74), 90. 103( c)( 9), 74.602( a)( 1). See generally Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them and Examination of Exclusivity and Frequency Assignment Policies of the Private Land Mobile Services, PR Docket No. 92- 235, Second Report and Order, 12 FCC Rcd 14307 (1997), Report and Order and Further Notice of Proposed Rule Making, 10 FCC Rcd 10076 (1995). 13 Pursuant to § 90. 103( c)( 9), Radiolocation Service users operate on a secondary basis to other fixed and mobile users in the band. 14 Request at 5. 15 See 47 C. F. R. §§ 90. 20( d)( 73), 90. 35( c)( 74), 90.103( c)( 9), 74.602( a)( 1); see generally Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them and Examination of Exclusivity and Frequency Assignment Policies of the Private Land Mobile Services, PR Docket No. 92- 235, Second Report and Order, 12 FCC Rcd 14307 (1997), Report and Order and Further Notice of Proposed Rule Making, 10 FCC Rcd 10076 (1995). 2 Federal Communications Commission DA 01- 160 3 6. Additionally, the Petitioners ask us to rule that existing frequency coordination procedures for operations in the 2.4 GHz band must include representatives of both broadcast and public safety licensees. In addition, they request that we rule that coordination decisions must reflect the co- equal status of licensees. 16 Part 74 TV broadcast auxiliary applicants are responsible for selecting frequencies that are least likely to result in interference with other licensees in the same geographical area. 17 Broadcast licensees, therefore, have set up informal coordination procedures for Part 74 applicants. There is no rule requirement for a Part 90 applicant to obtain frequency coordination for frequencies in the 2. 4 GHz band. Consequently, Part 90 applicants must attempt to informally coordinate use of the 2.4 GHz band with other users of the band. The Commission’s Rules set out no specific procedure and do not expressly provide for participation by Part 90 applicants and licensees in the Part 74 coordination process. We, of course, nonetheless encourage such collaborative coordination if all affected entities could agree about the process. 7. Finally, the Petitioners ask for clarification that Section 90.423 of our Rules does not make airborne public safety operations in the 2.4 GHz band secondary to land- based Part 74 broadcast operations in the band. 18 As SBE points out, the plain language of Section 90.423( a)( 3) states that airborne operations are secondary to “land- based systems.” 19 Nonetheless, the regulatory history of this rule illuminates the rule’s intended scope. The 1973 Report and Order adopting Section 90.423( a)( 3) states that airborne operations must be on a non- interference basis to “regular land mobile systems.” 20 8. We do not believe that Section 90.423( a)( 3) was intended to mean that Part 90 airborne operations in the 2.4 GHz band are secondary to Part 74 Broadcast Auxiliary Services. We harmonize this conclusion with Section 74.23( a) of our Rules, 21 which states that any entity licensed under Part 74 of our Rules that causes harmful interference to radio communications involving the safety or life or protection of property shall promptly eliminate the interference. 9. Conclusion. Pursuant to our discussion above, we deny the Petitioners’ Request on the issues where further clarification is unnecessary. We grant the Petitioners’ Request insofar as it seeks 16 Request at 5. 17 47 C. F. R. § 74. 604( a). See Amendment of Part 74, Subpart F of the Commission’s Rules to Permit Shared Use of Broadcast Auxiliary Facilities with Other Broadcast and Non- broadcast Entities and to Establish New Licensing Policies for Television Broadcast Auxiliary Stations, BC Docket No. 81- 794, Report and Order, 93 FCC2d 570 (1983). See also Reorganization and Revision of Parts 1, 2, 21, and 94 of the Rules to Establish a New Part 101 Governing Terrestrial Microwave Fixed Radio Services, WT Docket No. 94- 148, Memorandum Opinion and Order and Notice of Proposed Rule Making, FCC 00- 33 at ¶ 40 n. 133 (rel. Feb. 14, 2000) (discussing 47 C. F. R. § 74.604); Application of The Vision Group, DA 90- 450, Memorandum Opinion and Order, 5 FCC Rcd 1909, 1910 (1990) (discussing 47 C. F. R. § 74. 604). 18 Request at 5- 6. 19 47 C. F. R. § 90. 423( a)( 3). See Amendment of the Commission’s Rules Governing the Private Land Mobile Radio Service to Provide a New Part 90 that Reregulates and Consolidates Parts 89, 91, and 93, Docket No. 21348, Report and Order, 69 FCC2d 1612 (1978). 20 Amendment of Parts 89, 91, and 93 of the Commission’s Rules Concerning Use of Land Mobile Frequencies Aboard Aircraft, Docket No. 19545, 42 FCC 2d 505, 507 (1973). 21 47 C. F. R. § 74. 23( a). 3 Federal Communications Commission DA 01- 160 4 clarification of the meaning of Section 90.423( a)( 3) of our Rules. Insofar as the Petitioners’ Request argues that we should allocate more spectrum for public safety operation, we agree with SBE that "the proper course of action would be for [the] Petitioners to file a Petition for Rulemaking to implement such a reallocation.” 22 10. Ordering Clauses. Accordingly, pursuant to the authority of Sections 4( i) and 303( r) of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 303( r), and Section 1.2 of the Commission’s Rules, 47 C. F. R. § 1.2, IT IS ORDERED that the Request for Declaratory Ruling, filed September 1, 1999, by the County of Los Angeles, the City of Los Angeles, the City of Long Beach, and the City of Burbank, California, IS GRANTED IN PART AND DENIED IN PART, to the extent discussed herein. 11. 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 D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau 22 SBE Comments at 2. See also 47 C. F. R. § 1. 401. 4