*Pages 1--8 from Microsoft Word - 54552.doc* Federal Communications Commission DA 06- 158 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of SYOSSET FIRE DISTRICT Request for Modification of License for Station WPYJ816 and to Operate a Public Safety Radio Communications System in Television Channel 19 Frequencies in Syosset, New York and Nearby Communities ) ) ) ) ) ) ) ) ) File Nos. 0001845877, 0001973268, 0001973296, 0002096719 MEMORANDUM OPINION AND ORDER Adopted: January 25, 2006 Released: January 27, 2006 By the Chief, Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us four applications and associated requests for waiver 1 filed by the Syosset, New York, Fire District (“ Syosset” or “the District”) for authority to modify its public safety radio Station WPYJ816, Syosset, New York, and operate a new public safety radio station in the New York metropolitan area. Syosset seeks waivers, pursuant to Section 337( c) of the Communications Act of 1934, as amended (the Act), 2 of certain provisions in Parts 22 and 90 of the Commission’s Rules to add eight UHF frequencies 3 allotted for non- public safety use. For the reasons stated herein, we grant Syosset’s Waiver Requests. 1 See FCC File No. 0001845877 (filed August 19, 2004, as amended on May 4, 2005); FCC File No. 0001973268 (filed December 16, 2004, as amended May 2, 2005, May 4, 2005, and October 3, 2005); FCC File No. 0001973296 (filed December 16, 2004, as amended on May 4, 2005); and FCC File No. 0002096719 (filed March 23, 2004, as amended on May 4, 2005). Each application included an attached Description of Application and Request for Waiver (Waiver Requests). Syosset amended its applications on May 4, 2005 to provide frequency coordinator analyses performed by the Forestry Conservation Communications Association (FCCA), a Commission- certified frequency coordinator in the Public Safety Pool. See Letters from Ralph Haller, Executive Manager, Forestry Conservation Communications Association to Tracy Simmons, Chief, Licensing Branch, Public Safety and Critical Infrastructure Division (dated Apr. 29, 2005 for FCC File No. 0001845877; May 4, 2005 for FCC File No. 0001973268; May 3, 2005 for FCC File No. 0001973296; and May 2, 2005 for FCC File No. 0002096719) (Frequency Coordination Amendments). 2 47 U. S. C. § 337( c). 3 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 referred to as the land mobile “UHF band.” In this Memorandum Opinion and 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, WT Docket No. 99- 87, Notice of Proposed Rule Making, 14 FCC Rcd 5206, 5215 ¶¶ 11- 12 (1999). 1 Federal Communications Commission DA 06- 158 2 II. BACKGROUND 2. Syosset is the parent agency to the all- volunteer Syosset Fire Department. 4 The District, which is located near the north shore of Long Island, New York, serves the communities of Syosset, Woodbury, part of Jericho, and the villages of Oyster Bay Cove, Laurel Hollow, and Muttontown. 5 Syosset is authorized to operate on certain Part 22 frequencies 6 for private land mobile radio operations, pursuant to previous waivers granted under Section 337( c) of the Act by the Public Safety and Critical Infrastructure Division. 7 Section 337( c) of the Act directs the Commission to waive any rules necessary to authorize public safety entities to utilize unassigned spectrum when certain criteria are satisfied. 8 The District contends that the circumstances underlying its previous waiver grant have not changed and therefore a waiver is warranted here. 9 As the frequencies in question are not designated for public safety use, Syosset requires a waiver of Sections 22.7, 22.501, 22.651, 90.303, 90.305( a), 90.307( d), and 90.311 of the Commission’s Rules. 10 3. The first two pending applications request modification of the license for Station WPYJ816. 11 Syosset seeks to make more intensive use of Station WPYJ816 in the congested New York metropolitan area and to implement a plan to improve communications in the region. 12 In FCC File No. 0001845877, Syosset seeks to (a) change the mode of operation from trunked to conventional and (b) relocate two base 4 See FCC File No. 0001314863, Syosset Fire District (filed May 16, 2003) (Original Request) at 2. 5 Id. 6 Part 22 frequencies, 47 C. F. R. Part 22, are generally reserved for Public Mobile Services in which common carriers are authorized to offer and provide mobile and related fixed radio telecommunications services to the public for hire. See 47 C. F. R. § 22.99. 7 See Syosset Fire District, Memorandum Opinion and Order, 18 FCC Rcd 16635 (WTB PSPWD 2003) (Syosset Order). We note that subsequent to the Syosset Order, we granted Syosset an extension of its construction deadline and a request to convert certain frequencies to wideband operation. See Letter to Russell Fox, Esq., from Michael J. Wilhelm, Chief, Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau, Federal Communications Commission (Nov. 26, 2004) (granting extension); see also Seven Public Safety Agencies in the New York Metropolitan Area, Order, 19 FCC Rcd 15355 (WTB PSCID 2004). 8 See 47 U. S. C. § 337( c)( 1). 9 FCC File No. 0001973268, Waiver Request at 2. 10 47 C. F. R. §§ 22.7, 22.501, 22.651, 90.303, 90.305( a), 90.307( d), 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 22.651 requires the use of trunked mobile operations on three of the frequencies requested by Syosset. But see 47 C. F. R. § 22.655 (FCC is redesignating public mobile channels in the 470- 512 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, and references 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. Section 90.305( a) limits the location of base stations to within eighty kilometers (fifty miles) from the geographic center of specified urban areas. In this case, the geographic center is located in Philadelphia, Pennsylvania. Section 90.307( d) specifies that the minimum distance between a land mobile base station which has associated mobile units and a protected adjacent channel TV station is 145 kilometers (ninety miles). 11 See FCC File Nos. 0001845877 and 0001973268. 12 See FCC File No. 0001973268, Waiver Request at 1- 2. 2 Federal Communications Commission DA 06- 158 3 station sites from Roslyn Harbor and East Meadow to Jericho and Syosset, respectively. 13 The base station relocations would alter the service contours of Station WPYJ816 on frequencies allocated to paging services in Part 22 of the Commission’s Rules. In FCC File No. 0001973268, Syosset seeks to (a) increase power levels on frequencies 476.1875 MHz, 476.2375 MHz, and 476.2875 MHz at base station location 1 in Syosset, New York; (b) add two Part 22 frequencies (479.0625 MHz and 473.2000 MHz) for simplex fireground operations; and (c) add a Part 22 frequency (473.0250 MHz) for wide area dispatch operations. 14 Syosset requests a waiver pursuant to Section 337( c) of the Act because the new frequencies are allocated for paging use under Part 22 of the Commission’s Rules. 15 4. The third and fourth pending applications request frequencies in the Channel 19 television (TV) band. 16 In FCC File No. 0001973296, Syosset requests frequency pairs 500/ 503.6125 MHz and 501/ 504.2375 MHz for mobile data use throughout Nassau County, New York. 17 In FCC File No. 0002096719, Syosset requests frequency 502.5250 MHz for on- site repeaters throughout Nassau County. 18 These five frequencies are allocated for public safety and other private land mobile radio use within fifty miles of Philadelphia, but not in the New York metropolitan area. 19 Syosset proposes to utilize base stations located 172.1 kilometers (107 miles) and 171.8 kilometers (106.7 miles) from the geographic center coordinates of Philadelphia. 20 As discussed in further detail below, Syosset also requires a waiver of the TV protection criteria. 21 Therefore, Syosset requests a waiver pursuant to Section 337( c) of the Act. 5. On August 31, 2005, the Wireless Telecommunications Bureau (“ Bureau”) placed Syosset’s applications and waiver requests on public notice. 22 The Bureau received ten comments in support, 23 one 13 FCC File No. 0001845877. 14 See FCC File No. 0001973268. 15 See FCC File No. 0001973268, Waiver Request at 1. 16 See FCC File Nos. 0001973296 and 0002096719. 17 See FCC File No. 0001973296, Waiver Request at 1. 18 See FCC File No. 0002096719, Waiver Request at 1. 19 See 47 C. F. R. §§ 90.303, 90.305( a). 20 See FCC File No. 0001973268. 21 See para. 10 infra. 22 See Wireless Telecommunications Bureau Seeks Comment on Requests for Waiver by Syosset, New York, Fire District, to Utilize Part 22 and Television Channel 19 Band Frequencies in Its Public Safety Communications System, Public Notice, 20 FCC Rcd 14423 (WTB PSCID 2005). 23 See Letters to the Office of the Secretary, Federal Communications Commission received September 21, 2005 from Judith A. Jacobs, Presiding Officer, Legislator, District 16, Nassau County, New York Legislature (dated Sept. 7, 2005); Thomas A. Raphaelli, Program Coordinator- Radio, County of Westchester, New York (dated May 26, 2005); John F. Shoemaker, Chief, East Norwich, New York Volunteer Fire Co. No. 1 Inc. (dated Aug. 26, 2005); Edward P. Mangano, Legislator, District 17, Nassau County, New York Legislature (dated May 23, 2005); Christian J. Mercadante, 1 st Assistant Chief, Atlantic Steamer Fire Co. No. 1 Inc. (dated May 20, 2005); Jonathan B. Kohan, Chief, Atlantic Beach Rescue Unit, Inc. (dated Sept. 5, 2005); Patrick J. Moore, Captain, Wantagh-Levittown Volunteer Ambulance Corps (dated Sept. 6, 200[ 5]); Robert Gobbo, Chief, Glen Cove, New York Volunteer Emergency Medical Services Corps (dated Sept. 23, 2005); Sean O’Donnell, Chief, Sea Cliff, New York Fire Department (dated Sept. 23, 2005); and Myles P. Quinn, Chief of Operations, Communications Bureau, County of Suffolk, New York (dated Sept. 22, 2005). 3 Federal Communications Commission DA 06- 158 5 entity providing public safety services. 34 We therefore move to examining whether Syosset meets the statutory requirements supporting a waiver under Section 337( c) of the Act. 8. Immediate availability of public safety spectrum. In the previous Order, we found that public safety spectrum is not immediately available to Syosset. 35 Based on the record before us and Syosset’s contention that the circumstances underlying its previous waiver grant have not changed, 36 we concur and find that no other public safety spectrum is immediately available to satisfy the requested public safety service use. 9. Technical feasibility of requested use without causing harmful interference. FCC File Nos. 0001845877 and 0001973268. Syosset’s proposed frequencies are in the 470- 480 MHz band, which is allocated on a geographically- shared basis with television broadcast stations. 37 Syosset predicts that its operations will not cause harmful interference to broadcast stations operating on TV Channels 14, 15, and 16, including Channel 16 Station WNEP, Scranton, Pennsylvania, and Channel 15 Station WLYH, Lancaster, Pennsylvania. 38 In the New York metropolitan area, the Commission regulates frequencies 473.0250 MHz, 473.2000 MHz, and 479.0625 MHz under Part 22 of its Rules. 39 According to the Commission’s licensing records, the Commission has not authorized Part 22 stations in the geographic area in question, and thus there is no issue of co- channel interference to Part 22 stations before us. We note, however, that there are co- channel and adjacent channel public safety land mobile radio stations operating as a result of prior waivers issued pursuant to Section 337 of the Act. 40 Syosset’s interference analyses show that its proposed modifications would not result in harmful interference to those other licensed public safety systems. 41 Furthermore, the Forestry Conservation Communications Association (FCCA) conducted an interference analysis and reached the same conclusion. 42 10. FCC File Nos. 0001973296 and 0002096719. Frequencies 501/ 504.2375 MHz, 500/ 503.6125 MHz, and 502.5250 MHz are in the TV Channel 19 band, which is allocated for TV use in the New York metropolitan area. Syosset notes that the Nassau County Police Department (“ Nassau”) is currently authorized to operate a public safety system on TV Channel 19 spectrum (Station WPVS875). 43 Previously, we found that Nassau’s operations would not cause harmful interference to broadcast stations 34 See Nassau County Police Department, Memorandum Opinion and Order, 17 FCC Rcd 14252, 14258 ¶ 11 (WTB PSPWD 2002) (Nassau Order). 35 See Syosset Order, 18 FCC Rcd at 16640 ¶ 8. 36 See FCC File No. 0001973268, Waiver Request at 2. 37 Frequencies in the 470- 512 MHz band, normally assigned to UHF Television channels 14 through 20, were made available for land mobile radio use in eleven cities in the early 1970s in the “UHF- TV Sharing” proceeding. See Land Mobile Use of TV Channels 14 through 20, Docket No. 18261, Report and Order, 23 F. C. C. 2d 325 (1970). 38 See FCC File No. 0001973268, Engineering Analysis at 1; FCC File No. 0001845877 Frequency Coordinator Amendment at 2; FCC File No. 0001973268, Frequency Coordination Amendment at 2. 39 47 C. F. R. § 22.1 et. seq. 40 The co- channel licensees include Summit and the County of Somerset, New Jersey. Adjacent channel licensees include the Borough of Fort Lee, New Jersey; the Jersey City, New Jersey Police Department; the City of Bayonne, New Jersey; Summit; the County of Somerset, New Jersey; and the County of Westchester, New York. 41 See FCC File Nos. 0001845877 and 0001973268, Engineering Analyses. 42 See FCC File Nos. 0001845877 and 0001973268, Frequency Coordination Amendments. 43 FCC File No. 0001973296, Waiver Request at 2. 5 Federal Communications Commission DA 06- 158 6 operating on TV Channels 18, 19, and 20. 44 Syosset states that it is located in Nassau County and that its use of TV Channel 19 spectrum will not exceed the use of TV Channel 19 spectrum already approved for Nassau. 45 Therefore, Syosset states that both the analysis performed by Nassau and our resulting conclusion from Nassau’s Memorandum Opinion and Order are equally applicable to Syosset. 46 FCCA notes that Syosset’s proposal complies with the television protection rules 47 and protects Channel 18 Station WHCT, Hartford, Connecticut, and Channel 19 Station WCDC, Adams, Massachusetts. 48 However, a contour study was required to demonstrate protection to Channel 20 Station WTXX, Waterbury, Connecticut, because it is less than 145 kilometers (ninety miles) away. 49 In a Public Notice dated October 22, 1991, the Commission specified that an alternate analysis for adjacent channel operation would be to show 0 dB protection at the television station’s Grade B contour (64 dBµV/ m). 50 The FCCA determined that Syosset’s contours would make a de minimis excursion into the Grade B contour of Station WTXX. 51 Given that we allowed Nassau’s contours to make a similar excursion into the same TV station’s Grade B contour and given Nassau’s successful operation without reported interference to Station WTXX, FCCA recommends granting Syosset’s applications conditioned on not causing interference to Station WTXX. 52 Next, Syosset has analyzed the potential effects to land mobile operations in the TV Channel 19 band and determined that there is a minimum of 20 dB carrier- to-interference ratio to a co- channel or adjacent channel mobile unit operating within its area of operation, 53 as recommended by TSB- 88. 54 11. Based on the record before us, our analysis thereof, and the implementation of special conditions specified above, we conclude that Syosset’s proposed system would protect existing public safety land mobile licensees and television stations from harmful interference. Accordingly, we believe the operational and technical parameters of Syosset’s proposed system meet the Commission’s requirements for interference protection to incumbent public safety licensees. We therefore find that Syosset’s proposed system is technically feasible and will not cause harmful interference to protected spectrum users. 44 Nassau Order, 17 FCC Rcd at 14260 ¶¶ 17- 18. 45 FCC File No. 0001973296, Waiver Request at 2. 46 FCC File No. 0001973296, Waiver Request at 2- 3. 47 See 47 C. F. R. Part 90, Subpart L. 48 See FCC File No. 0001973296, Frequency Coordination Amendment at 2; FCC File No. 0002096719 Frequency Coordinator Amendment at 2. 49 See 47 C. F. R. § 90.307( d). Syosset’s proposed base stations are located 86.5 and 88.4 kilometers from Station WTXX, or less than the minimum spacing of 145 kilometers. 50 See Private Land Mobile Operations in the 470- 512 MHz Band, Public Notice, No. 20291 (rel. Oct. 22, 1991). 51 See FCC File No. 0001973296, Frequency Coordination Amendment at 2; FCC File No. 0002096719, Frequency Coordination Amendment at 2. 52 See FCC File No. 0001973296, Frequency Coordination Amendment at 2; FCC File No. 0002096719, Frequency Coordination Amendment at 2. 53 See FCC File No. 0001973296, Engineering Analysis at 1 and Frequency Coordination Amendment at 1- 2; FCC File No. 0002096719, Frequency Coordination Amendment at 1. 54 See Telecommunications Industry Association / Electronics Industry Association Telecommunications Systems Bulletin 88 (TIA/ EIA TSB- 88), Wireline Communications System - Performance in Noise and Interference-Limited Situation - Recommended Methods for Technology- Independent Modeling, Simulation, and Verification (June 1999) at 22. 6 Federal Communications Commission DA 06- 158 7 12. Public safety use of the frequencies is consistent with other public safety spectrum allocations in the geographic area. We found that the District met this criterion in the previous Syosset Order. 55 The frequencies it proposes to use in the instant requests are within the same frequency band (470- 512 MHz) where public safety land mobile radio operations are authorized, and are currently being used by other public safety agencies in the New York metropolitan area (e. g., Nassau and the Borough of Fort Lee, New Jersey). 56 We therefore find that the use of the unassigned frequencies for the provision of the proposed public safety services and the requested modifications of Syosset’s existing station are consistent with other allocations for the provision of such services in the geographic area for which the applications are made. 13. The frequencies have been allocated for non- public safety use for more than two years. The Commission allocated these frequencies for paging use in 1994. 57 Thus, these frequencies have been allotted for their present use for more than two years. 14. Granting the applications is consistent with the public interest. Based upon the record in this proceeding, we believe Syosset’s filings demonstrate that it and the neighboring communities it serves need access to additional spectrum in order to promote effective public safety communications. In this regard, we note that Syosset is responsible for providing emergency communications to twelve fire departments during a state of emergency. 58 We believe that it would further the public interest by affording Syosset’s public safety community access to additional radio spectrum in order 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.” 59 Moreover, because other public safety agencies in the New York metropolitan area are using frequencies in the same frequency band, we believe that granting the requests will promote interoperability capability among the public safety community in this area. IV. CONCLUSION 15. We find that Syosset’s Waiver Requests satisfy the criteria set forth under Section 337( c) of the Act to obtain a grant of its applications to modify its public safety communications system and add frequencies in the 470- 512 MHz band. We therefore grant Syosset’s Waiver Requests. Syosset’s operations on TV channel 19 spectrum will be secondary to broadcast TV and digital television (DTV) operations. 60 Accordingly, the applications will be processed and the license grants will reflect the special conditions listed in the following table: 55 See Syosset Order, 19 FCC Rcd at 15340 ¶ 10. 56 Original Request at 7; FCC File No. 0001973296, Waiver Request at 2- 3. 57 See Revision of Part 22 of the Commission’s Rules Governing the Public Mobile Services, CC Docket 92- 115, Report and Order, 9 FCC Rcd 6513 (1994). 58 Original Request at 4. Twelve departments comprise the Fifth Battalion. The District, as the Fifth Battalion’s Emergency Operations Center, has a responsibility to provide for adequate radio coverage across the entire Fifth Battalion. 59 47 U. S. C. § 151. 60 We note that Syosset may experience interference due to an anomalous propagation phenomenon called tropospheric ducting from distant TV and DTV stations. Tropospheric ducting is a phenomenon in which a signal, in certain frequency ranges and under certain conditions, travels within the troposphere and propagates with much lower attenuation than would be obtained in a homogeneous atmosphere. Under these conditions, the signal can travel farther than is usual. See Allocation of the 219- 220 MHz Band for Use by the Amateur Radio Service, (continued….) 7 Federal Communications Commission DA 06- 158 8 FCC File Nos. Call Sign( s) Special Conditions 0001845877 & 0001973268 WPYJ816 Syosset will: (a) employ power levels not to exceed 100 watts ERP on frequencies 476.0375, 476.1375, and 476.1875 MHz; (b) employ a six degree downtilt antenna on these channels; (c) not extend the footprint established in its current license for these channels; and (d) protect the co-channel operations of Station WQDR764, Summit, New Jersey. 0001973296 & 0002096719 (To be determined) The licensee will resolve any interference it causes to broadcast television Channel 19 Station WTXX-TV, Waterbury, Connecticut. Operations on this station are secondary to broadcast TV and DTV operations. V. ORDERING CLAUSES 16. 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 requests for waiver associated with the captioned applications filed by the Syosset Fire District, as amended, to modify Station WPYJ816 and use frequencies 473.0250, 473.2000, 479.0625, 501/ 504.2375, 500/ 503.6125, and 502.5250 MHz for public safety services ARE GRANTED. 17. 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 Nos. 0001845877, 0001973268, 0001973296, and 0002096719 SHALL BE PROCESSED consistent with this Memorandum Opinion and Order and the Commission’s Rules. 18. 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 Michael J. Wilhelm Chief, Public Safety and Critical Infrastructure Division Wireless Telecommunications Bureau (Continued from previous page) Memorandum Opinion and Order, RM- 7747, 11 FCC Rcd. 3522, 3523 n. 16 (1996). 8