*Pages 1--7 from Microsoft Word - 44263.doc* Federal Communications Commission DA 04- 3699 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Application of COUNTY OF WESTCHESTER To Operate a Public Safety Radio Communications System in Frequency Band 470- 480 MHz in Westchester County, New York ) ) ) ) ) ) ) File No. 0001801202 ORDER Adopted: November 24, 2004 Released: November 29, 2004 By the Chief, Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us an application and a waiver request filed by the County of Westchester, New York, (“ Westchester” or “the County”) for authority to operate a public safety radio system on ten UHF frequencies 1 in the New York Metropolitan area. 2 Westchester seeks a waiver, pursuant to Section 337( c) of the Communications Act of 1934, as amended (the Act), 3 of Sections 22.621, 22.651 and 90.303 of the Commission’s Rules, 4 to use currently unassigned frequencies allotted for non- public safety use. 5 For the reasons stated herein, we grant Westchester’s waiver request. II. BACKGROUND 2. Westchester is part of the New York City metropolitan area, located north of the Bronx, and has a population of one million people. 6 Several major corporate headquarters such as those of IBM and Pepsico are based in the County, and Westchester provides electricity to the metropolitan area and water 1 Frequencies in the 300 MHz to 3 GHz range are Ultra High Frequencies (UHF), but land mobile frequencies in the 450- 512 MHz range are sometimes known as the land mobile “UHF band.” In this Order, references to UHF mean 450- 512 MHz. See, e. g., Implementation of Sections 309( j) and 337 of the Communications Act of 1934 as Amended, Notice of Proposed Rule Making, WT Docket No. 99- 87, 14 FCC Rcd 5206, 5215 ¶¶ 11- 12 (1999). 2 See FCC File No. 0001801202, County of Westchester (filed July 8, 2004) (Request), as amended on August 2, 2004, August 20, 2004 (August 20, 2004 Amendment), September 14, 2004, and September 17, 2004. The original application requested the use of frequency pairs 476/ 479.0750, 476/ 479.1125, and 476/ 479.2125 MHz. On August 20, 2004, Westchester amended its application to request the use of frequency pairs 470/ 473.0750 and 470/ 473.1000 MHz. 3 47 U. S. C. § 337( c). 4 47 C. F. R. §§ 22.621, 22.651, 90.303. Westchester also requested waiver of any other Commission rules that are necessary to grant its application. See Request at 1. 5 See Request at 1. 6 Id. 1 Federal Communications Commission DA 04- 3699 2 to New York City. 7 Westchester asserts that due to its adjacency to New York City, a public safety incident in the County could affect New York City and vice versa. 8 3. Westchester states that its limited amount of spectrum is inadequate to accommodate its public safety needs. 9 The County notes that its current frequencies are spread across several frequency bands, are overcrowded, and are inadequate for multiple incident response. 10 Westchester states that the purpose of a proposed new system is to upgrade its existing antiquated radio systems operating in various frequency bands in order to provide badly needed reliable communications and interoperability among all public safety and local government agencies throughout the county. 11 Westchester plans to operate its public safety communications system in two zones, with each zone using different frequencies. 12 Westchester is licensed to operate Station WPVA646, Valhalla, New York, but Westchester states that none of the UHF, trunked frequency pairs on that license can be used in the southern part of the county, closer to New York City, without causing or receiving interference. Therefore, Westchester proposes to use frequencies from Station WPVA646 in the northern zone. 13 Westchester seeks the subject frequency pairs for trunked use in the southern zone. 14 Ultimately, Westchester plans to add another frequency pair (for a total of six frequency pairs) to be used in the southern zone, for which Westchester will apply when a frequency pair becomes available. 15 4. Because the requested frequencies are not designated for public safety use, Westchester requires a waiver of Sections 22.7, 22.501, 22.621, 22.651, 90.303, and 90.311 of the Commission’s Rules. 16 Westchester seeks such a waiver pursuant to Section 337( c) of the Act. 17 5. On September 1, 2004, the Wireless Telecommunications Bureau placed Westchester’s 7 Id. 8 Id. 9 Id. at 2. 10 Id. 11 Id. 12 Id. at 3, Attachment 2, Analysis of Frequency Availability for Westchester County Public Safety Communications by Vogel Consulting Group, Inc. (Vogel Report) at 3. 13 Id. 14 Id., August 20, 2004 Amendment at 1. 15 Request at 2- 3, August 20, 2004 Amendment at 1. 16 47 C. F. R. §§ 22.7, 22.501, 22.621, 22.651, 90.303, 90.311. Section 22.7 limits eligibility to operate on Part 22 frequencies to common (i. e., commercial) carriers. Section 22.501 defines the scope of the licensing and operation of the public paging and radiotelephone service. Section 22.621 requires the use of point- to- multipoint operation on five of the requested frequencies. Section 22.651 requires the use of trunked mobile operations on the other five frequencies requested. But see 47 C. F. R. § 22.655 (FCC is redesignating public mobile channels in the 450- 470 MHz range from trunked mobile operation to point- to- multipoint operation as the demand for trunked mobile service decreases). Section 90.303 provides frequencies available for assignment to land mobile systems, referring to Section 90.311, which excludes frequencies in the 470- 512 MHz range from assignment to private land mobile radio applicants if the frequencies are allocated for services under Part 22. 17 See 47 U. S. C. § 337( c). 2 Federal Communications Commission DA 04- 3699 6 10. Public safety use of the frequencies is consistent with other public safety spectrum allocations in the geographic area. As Westchester notes, the frequencies it proposes to use in its public safety communications system are within a frequency band where public safety land mobile radio operations are authorized, and more importantly are currently being used by other public safety agencies in the New York City metropolitan area (e. g., New York City, Nassau County, and Rockland County). 43 We therefore find that the use of the unassigned frequency pairs for the provision of the proposed public safety services is consistent with other allocations for the provision of such services in the geographic area specified in the application. Moreover, because other agencies in the New York City metropolitan area are using these frequencies, we believe that granting the request will promote interoperability among public safety community in this area. 11. The frequencies have been allocated for non- public safety use for more than two years. The Commission allocated these frequencies for non- public safety use in 1994. 44 Thus, these frequencies have been allocated for their present use for more than two years. 12. Granting this application is consistent with the public interest. We believe Westchester’s filings demonstrate that access to additional spectrum is needed in order to promote effective public safety communications. As described by Westchester, granting the applications and waiver request would be in the public interest as it will cure deficiencies in the existing public safety radio systems and provide interoperability between various fire departments, police departments, EMS corps, and hospitals in Westchester County. 45 The proposed system would be free of interference from other users in the New York area and would be adequate for response to multiple incidents. 46 We believe that it would further the public interest by affording Westchester’s public safety community the necessary spectrum to allow it to safely protect the lives and property in its care. Indeed, Section 1 of the Act defines one of the Commission’s over- arching purposes as “promoting safety of life and property through the use of … radio communication.” 47 We find it significant that granting the instant request will promote interoperability capability among the public safety community in the New York City metropolitan area. 13. We agree with New Jersey that Westchester should fulfill its commitment to coordinate its use of the requested frequencies. This will promote efficient use of spectrum while avoiding harmful interference to other public safety entities. Therefore, we expect Westchester coordinate usage of its frequencies with the relevant public safety users in New Jersey so as to avoid any harmful adjacent channel interference. IV. CONCLUSION 14. We conclude on the record before us that Westchester’s waiver request satisfies the criteria set forth under Section 337( c) of the Act to obtain a grant of its application to operate a public safety communications system on frequencies in the 470- 480 MHz band. We therefore grant Westchester’s request. 43 Request at 3. 44 See Revision of Part 22 of the Commission’s Rules Governing the Public Mobile Services, Report and Order, CC Docket 92- 115, 9 FCC Rcd 6513 (1994). 45 Request at 2. 46 Id. 47 47 U. S. C. § 151. 6 Federal Communications Commission DA 04- 3699 7 V. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED that, pursuant to Sections 4( i) and 337( c) of the Communications Act of 1934, as amended, 47 U. S. C. § 154( i), 337( c), the request for waiver associated with the captioned application filed by the County of Westchester on July 8, 2004, as amended, to use frequencies 476/ 479.0750, 476/ 479.1125, 476/ 479.2125, 470/ 473.0750, and 470/ 473.1000 MHz for public safety services as requested in the captioned application IS GRANTED. 16. IT IS FURTHER ORDERED that, pursuant to Sections 4( i) and 337( c) of the Communications Act of 1934, as amended, 47 U. S. C. § 154( i), 337( c), that File No. 0001801202 SHALL BE PROCESSED consistent with this Order and the Commission’s Rules. 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. §§ 0131, 0331. FEDERAL COMMUNICATIONS COMMISSION Michael J. Wilhelm Chief, Public Safety and Critical Infrastructure Division Wireless Telecommunications Bureau 7