*Pages 1--5 from Microsoft Word - 51260.doc* Federal Communications Commission DA 05- 2380 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Application of COUNTY OF MONROE, NEW YORK To Operate a Public Safety Talkback Paging System on 900 MHz Frequencies in Rochester, New York ) ) ) ) ) ) ) File No. 0001897038 ORDER Adopted: August 29, 2005 Released: August 31, 2005 By the Chief, Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us an application 1 and waiver request 2 filed by the County of Monroe, New York (“ Monroe” or “the County”) for authority to operate a public safety two- way paging system on a countywide basis on Business Category frequencies. Specifically, Monroe seeks a waiver of the Commission’s Rules, pursuant to Section 337( c) of the Communications Act, as amended (the Act) 3 or, alternatively, Section 1.925 of the Commission’s Rules, 4 to permit it to use frequencies 939.6500 and 900.6500 MHz. 5 Monroe currently is authorized to operate the system pursuant to special temporary authority (STA) under Call Sign WQBH643, pending the resolution of its request for a permanent waiver. For the reasons stated below, we grant Monroe’s waiver request. II. BACKGROUND 2. Monroe County, New York, which includes the City of Rochester, has a population of approximately 715,000 and covers an area of approximately 663 square miles. 6 In 2002, the Public Safety and Private Wireless Division of the Wireless Telecommunications Bureau (Bureau) granted Monroe a waiver to permit it to operate a public safety one- way paging system on frequency 931.3125 MHz (a Part 22 paging frequency), in order to supplement its thirty- year- old UHF one- way paging system, which had become antiquated and inadequate. 7 In 2004, the Bureau’s Public Safety and Critical 1 See FCC File No. 0001897038 (filed Oct. 12, 2004). 2 See FCC File No. 0001867308, Request for Waiver of Monroe County, New York (filed Sept. 10, 2004) (Request). 3 47 U. S. C. § 337( c). 4 47 C. F. R. § 1.925. 5 Request at 1. 6 Id. 7 See Monroe County, New York, Memorandum Opinion and Order, 17 FCC Rcd 21535 (WTB PSPWD 2002) (MO& O). The UHF system operates under Call Signs WPIK755 and WPGQ974. The 900 MHz system operates under Call Sign WPWY916. 1 Federal Communications Commission DA 05- 2380 3 4. When considering requests under Section 337, we first must determine whether the applicant is “an entity seeking to provide public safety services.” 16 Based on the record before us and the 2002 MO& O granting a waiver pursuant to Section 337, we conclude that Monroe is an entity providing public safety services. 17 We therefore move to whether Monroe meets the other statutory requirements supporting a waiver under Section 337( c) of the Act. 5. No other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use. The 2002 MO& O concluded that no public safety spectrum was immediately available for Monroe County’s paging operations. 18 Monroe submits that there are no 900 MHz channels allocated to public safety, and the only two- way paging equipment manufactured operates in the 900 MHz bands. 19 Based on our analysis of the information Monroe has submitted, we again conclude that Monroe has shown that no other public safety spectrum is immediately available in the area to be covered by the County. 6. 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. Monroe searched the Commission’s licensing database, determined that neither the requested channel pair nor the adjacent channels are assigned within 200 kilometers (124.3 miles) of Monroe County’s proposed site. 20 In light of its proximity to Canada, Monroe also provided a study 21 indicating that its proposed system’s power flux density at the U. S./ Canada border will not exceed the value set forth in Section 90.619( d)( 6). 22 Based on the record presented, we conclude that Monroe County has made a sufficient showing that the use of the subject frequency is technically feasible and would not interfere with existing licensees. 7. 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. Monroe observes that the purpose of this criterion is to ensure that interoperability of public safety services is not impaired. 23 Because its paging system serves every fire department, every EMS department and most police departments within Monroe County, the County believes its new system would be a critical tool to enhance interoperability. 24 Section 337( c)( 1)( C) requires that the spectrum 16 47 U. S. C. § 337( c). Section 337( f) defines the term “public safety services” as “services— (A) the sole or principal purpose of which is to protect the safety of life, health, or property; (B) that are provided— (i) by State or local government entities; or (ii) by non- governmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services; and (C) that are not made commercially available to the public by the provider. 47 U. S. C. § 337( f). 17 Request at 4; see also MO& O, 17 FCC Rcd at 21538 ¶ 7. 18 See MO& O, 17 FCC Rcd at 21539- 40 ¶ 10. 19 Request at 4. 20 Id. at 5; FCC File No. 0001897038, Exhibits A and B. 21 FCC File No. 0001897038, Exhibit C. 22 See 47 C. F. R. § 90.619( d)( 6) Tables 29, 30. 23 Request at 5 (citing H. R. Rep. No. 111, 103 rd Cong., 1 st Sess. at 580 (1997)). 24 Id. 3 Federal Communications Commission DA 05- 2380 4 sought is or will be used for other public safety operations in the geographic area. 25 Consistent with the 2002 MO& O, 26 we conclude that the proposed use of the requested frequency will be consistent with the Commission’s public safety spectrum designation in the subject geographic area and will further interoperability. 27 8. The unassigned frequencies were allocated for their present use not less than two years prior to the date on which the application will be granted. The subject frequencies were designated for Business Category use in 1986. 28 As the frequencies 939.6500 and 900.6500 MHz were allocated for their present use more than two years ago, Monroe has met this criterion. 9. Granting the application is consistent with the public interest. In analyzing the County’s waiver request, we find that Monroe has made a persuasive showing that grant of its waiver request is in the public interest. As described by Monroe, it has a critical need to put into service a system of two- way pagers to help carry out its role in homeland security. 29 The system will provide interoperability to police, fire, EMS, and security agencies charged with maintaining the safety and security of the County’s citizens. 30 Granting Monroe’s request will allow it to use otherwise vacant spectrum to preserve and promote critical communications that protect the safety of life, health, and property. 31 Therefore, we conclude that Monroe has made the requisite showing that granting its waiver request is in the public interest. IV. CONCLUSION 10. We conclude that Monroe’s waiver request satisfies the criteria under Section 337( c) of the Act to obtain a grant of its application for frequencies 939.6500 and 900.6500 MHz. 32 We therefore grant Monroe a waiver of Section 90.617 of the Commission’s Rules to permit public safety use of these Business Category frequencies. 33 Pursuant to Section 90.619( d)( 6) of the Commission’s Rules, Monroe’s authorization will be secondary to Canadian operations and conditioned to require that Monroe take 25 Cf. Borough of Sayreville, New Jersey, Order, 14 FCC Rcd 19393, 19396 ¶ 8 (WTB 1999). 26 See MO& O, 17 FCC Rcd at 21540- 41 ¶ 12. 27 See City of Pomona, California, Order, 15 FCC Rcd 15597, 15601 ¶ 10 (WTB 2000). 28 See Amendment of Parts 2 and 22 of the Commission’s Rules Relative to Cellular Communications Systems, Report and Order, GEN Docket No. 84- 1231, 2 FCC Rcd 1825 (1986). 29 Request at 1. 30 Id. at 1- 2. 31 Id. at 6. 32 In view of the conclusion that a waiver is warranted under Section 337( c) of the Act, we need not reach the question of whether Monroe’s waiver request should be granted under Section 1.925( b)( 3) of the Commission’s Rules. 33 We also waive the current freeze on 900 MHz applications in this instance, in order to grant Monroe’s request. See Wireless Telecommunications Bureau Freezes Applications in the 900 MHz Band, Public Notice, 19 FCC Rcd 18277 (WTB PSCID 2004); see also Amendment of Part 90 of the Commission’s Rules to Provide for Flexible Use of the 896- 901 MHz and 935- 940 MHz Bands Allotted to the Business and Industrial Land Transportation Pool, Notice of Proposed Rulemaking and Memorandum Opinion and Order, WT Docket No. 05- 62, 20 FCC Rcd 3814 (2005). We note that Monroe’s waiver request was pending when the freeze was implemented, but its application for permanent authority was filed thereafter. 4 Federal Communications Commission DA 05- 2380 5 immediate action to eliminate any harmful interference resulting from Monroe’s power flux density exceeding the values in Tables 29 or 30 at or beyond the U. S./ Canada border. 34 V. ORDERING CLAUSES 11. 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 filed by the County of Monroe, New York on September 10, 2004, to use frequencies 939.6500 and 900.6500 MHz, for public safety services as requested in the captioned application IS GRANTED. 12. 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), FCC File No. 0001897038 SHALL BE PROCESSED consistent with this Order and the Commission’s rules. 13. 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 34 See 47 C. F. R. § 90.619( d)( 6). 5