*Pages 1--4 from Microsoft Word - 13954.doc* Federal Communications Commission DA 02- 8 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of KENTUCKY POWER COMPANY d/ b/ a AMERICAN ELECTRIC POWER Application and Request for Waiver of Section 101.141( a)( 3) of the Commission’s Rules ) ) ) ) ) ) ) File No. 0000550346 ORDER Adopted: January 3, 2002 Released: January 7, 2002 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us a request 1 by Kentucky Power Company d/ b/ a American Electric (American Electric) for a waiver of Section 101.141( a)( 3) of the Commission’s Rules to permit it to install a transmitter that does not meet the Commission’s minimum payload capacity requirements. 2 For the reasons set forth below, we grant the waiver request. II. BACKGROUND 2. Section 101.141( a)( 3) of the Commission’s Rules sets forth the minimum capacity and loading requirements for microwave transmitters employing digital modulation techniques and operating below 19.7 GHz that are applied for, authorized, and placed in service after June 1, 1997. 3 For equipment using a nominal channel bandwidth of 5 MHz, the minimum payload capacity is 18. 5 megabits per second (MBPS), which typically can accommodate 288 voice circuits. 4 3. On August 6, 2001, American Electric filed an application for authorization to operate a 5 MHz path in the 6 GHz band. 5 American Electric, which provides electricity to approximately 45, 000 customers in a 1,700 square mile area around Hazard, Kentucky, proposes to operate a microwave path from Flatwoods, Kentucky to Hazard, Kentucky to serve line repair and other personnel. 6 It requests a waiver of Section 101.141( a)( 3), because it wishes to use a transmitter with a minimum payload capacity 1 Kentucky Power Company Request for Waiver (filed Aug. 6, 2001) (Waiver Request). 2 47 C. F. R. § 101.141( a)( 3). 3 Id. 4 Id. There is no minimum loading requirement for such equipment under the Commission’s Part 101 rules. 5 FCC File No. 0000550346 (filed Aug. 6, 2001). 6 Waiver Request at 1. 1 Federal Communications Commission DA 02- 8 2 of 13.1 MBPS. 7 American Electric states that it purchased the transmitter in 1994, but, although a site was selected and frequencies were coordinated, “unanticipated land rights issues” prevented installation of the equipment. 8 American Electric states that it has evaluated “numerous other sites” since that time, but that it has had difficulty finding a site with rights to operate such a with a clear transmission path. 9 American Electric states that it paid $40,000 for the transmitter and that the cost for a compliant transmitter would be approximately $80,000. 10 American Electric maintains that such an increase in costs to $120,000 would inhibit its ability to provide quality electrical service at affordable prices in an increasingly competitive marketplace. 11 Moreover, American Electric asserts that it needs to serve only a small number of individuals in a very sparsely populated rural area, and that a transmitter with a payload capacity mandated by the rule is more than American Electric needs to provide the requisite level of electric service. 12 American Electric also asserts that microwave frequencies in its region “are lightly used and reasonably can be expected to remain lightly used throughout the life of the equipment based on the area’s remoteness.” 13 Finally, American Electric indicates that the manufacturer cannot modify the transmitter it currently has to become compliant with the rule, because the manufacturer no longer makes this model. 14 III. DISCUSSION 4. We may grant a request for a waiver when (i) the underlying purpose of the rule( s) would not be served or would be frustrated by application to the instant case, and a grant of the requested waiver would be in the public interest; or (ii) in view of the unique or unusual factual circumstances, application of the rule( s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. 15 5. In Alcatel Network Systems, Inc., 16 we granted a request for a waiver of the minimum capacity requirement. A waiver was sought in order to provide for the use of a non- compliant transmitter in a sparsely populated and remote area of Alaska. 17 We determined that a waiver was warranted because (i) the underlying purpose of the rule, maximizing spectrum efficiency while minimizing frequency congestion, would not be frustrated by use of a non- compliant transmitter in an area with no prospects for 7 Id. 8 Id. 9 Id. at 3. 10 Id. 11 Id. at 2. 12 Id. 13 Id. 14 See Letter from Michael Barriault, Customer Service Manager, Harris Corporation, to John Burdette, Telecommunications Engineer, American Electric Power (filed Oct. 18, 2001). 15 47 C. F. R. § 1.925( b)( 3). 16 Alcatel Network Systems, Inc., Order, 11 FCC Rcd 22407 (WTB PSPWD 1996) (Alcatel). 17 Id. at 22407 ¶ 1. 2 Federal Communications Commission DA 02- 8 3 spectrum congestion, 18 and a waiver would be in the public interest because it would minimize the cost of providing communications services in a remote area; 19 and (ii) Alcatel had demonstrated unique circumstances rendering application of the rule inequitable and unduly burdensome, including the remoteness of the area in which the transmitter would be deployed, and the fact that the non- compliant transmitter had been ordered in 1996, but not produced before the cut- off date in our rules due to a supplier problem. 20 6. We find that grant of a waiver under the circumstances presented is appropriate for similar reasons. Specifically, American Electric serves a sparsely populated remote area and had great difficulty finding a suitable location for its transmitter. American Electric has shown that the area surrounding this microwave path is unlikely to become further developed and experience greater frequency demands. Because the overall spectrum use in the area is extremely light, we believe that the underlying purpose of Section 101.141( a)( 3), to ensure more efficient frequency use, 21 will not be detrimentally affected by allowing the use of a non- compliant transmitter in this particular instance. Also, as American Electric has explained, it purchased its transmitter in 1994 for $40,000 and has spent several years evaluating various sites for technical and legal appropriateness. To replace this transmitter with a compliant transmitter would cost an additional $80,000, for a total of $120,000. 22 We further note that, according the manufacturer, changing the modulation of the transmitter to bring it into compliance with our rules is not possible. Therefore, we conclude that American Electric has demonstrated that grant of a waiver of Section 101.141( a)( 3) is warranted because the underlying purpose of the rule would not be served by application to the instant case, and grant of the requested waiver would be in the public interest. In addition, in view of the particular circumstances, application of the rule would be inequitable and unduly burdensome. IV. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that, pursuant to Section 4( i) and 309 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 309, and Sections 1.925 and 101.141( a)( 3) of the Commission’s Rules, 47 C. F. R. §§ 1.925, 101.141( a)( 3), Kentucky Power Company’s Request for Waiver filed on August 6, 2001 IS GRANTED, and the associated application, FCC File No. 00000550346, WILL BE REFERRED to the Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch for further processing consistent with this Order. 8. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the 18 Id. at 22408- 09 ¶¶ 5- 6; see also Wilderness Telephone Company, Order, 15 FCC Rcd 11751, 11752 ¶ 6 (WTB PSPWD 2000) (Wilderness Valley). 19 Alcatel, 11 FCC Rcd at 22409 ¶ 5; see also Wilderness Valley, 14 FCC Rcd at 11753 ¶ 6. 20 Alcatel, 11 FCC Rcd at 22408 ¶ 4. 21 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, Report and Order. WT Docket No. 94- 148, 11 FCC Rcd 13449, 13476 ¶ 77 (1996). 22 While cost alone does not make the application of the Commission’s Rules inequitable, unduly burdensome or contrary to the public interest, it can be a relevant factor in our determination of whether a waiver is appropriate. See, e. g., Siskiyou Telephone Company, Order, DA 01- 2926, n. 15 (WTB PSPWD rel. Dec. 19, 2001) (citing Wilderness Valley, 15 FCC Rcd at 11753 ¶ 6). 3 Federal Communications Commission DA 02- 8 4 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 4