Federal Communications Commission DA 07-2033 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of COUNTY OF DAUPHIN, PENNSYLVANIA Request for Waiver of Sections 90.305(a), 90.307(d) and 90.309 of the Commission’s Rules ) ) ) ) ) ) File Nos. 0002669118, 0002669119 ORDER Adopted: May 8, 2007 Released: May 9, 2007 By the Chief, Policy Division, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. We have before us two applications filed by the County of Dauphin, Pennsylvania (Dauphin) for frequencies in the 470-512 MHz band.1 Specifically, Dauphin requests the use of ten channel pairs (channels or frequencies) in the 500-506 MHz frequency band (Television (TV) Channel 19).2 Dauphin requests a waiver of Section 90.305(a) of the Commission’s rules3 to permit it to operate base stations on channels in this band at locations more than fifty miles from the geographic center of the Philadelphia, Pennsylvania urbanized area. It also requests waiver of Section 90.307(d)4 specifying the minimum distance between Dauphin’s proposed sites and an adjacent-channel TV station. Finally, Dauphin requests a waiver of Section 90.309, Table C to allow its mobile units to operate with more power than permitted and requests a waiver of Section 90.309, Table A to allow its base stations to be short-spaced to co-channel TV stations.5 Dauphin contends that the waivers are justified under both Section 1.9256 and Section 337(c) of the Communications Act of 1934, as amended.7 For the reasons stated below, we grant Dauphin’s Waiver Request, subject to the conditions specified herein. 1 FCC File Nos. 0002669118 and 0002669119 (filed Jan. 23, 2007) and accompanying waiver requests. Because the waiver requests filed with each application are identically-worded, for purposes of clarity, we address the waiver requests collectively as “Waiver Request.” Dauphin originally filed applications requesting waiver of the Commission’s rules on June 30, 2006. The applications were returned and amended to correct errors related to frequency coordination and location address. See Notice of Return Letters (July 27, 2006). Dauphin filed amended applications on August 14, 2006. The Public Safety and Homeland Security Bureau (Bureau) returned the amended applications, requesting Dauphin to supplement the record regarding potential harmful interference caused by Dauphin’s mobile operations. See Notice of Return Letters (Dec. 12, 2006). The Bureau subsequently dismissed the August 14, 2006 applications for reasons related to regulatory fees. See Notice of Dismissal (Jan. 20, 2007). On January 23, 2007, Dauphin submitted new applications, renewed its requests for waiver and provided additional information requested by the Bureau. 2 Frequencies in the 470-512 MHz band are available for assignment to private land mobile radio users with base stations located within fifty miles of the center of certain urbanized areas. See 47 C.F.R. §§ 90.303, 90.305. 3 47 C.F.R. § 90.305(a). 4 See 47 C.F.R. § 90.307(d). We note that Dauphin incorrectly cites to Section “90.309(d)” in its request for waiver. The correct rule section is Section 90.307(d). 5 See 47 C.F.R. § 90.309, Table C; 47 C.F.R. § 90.309, Table A. 6 47 C.F.R. § 1.925. Federal Communications Commission DA 07-2033 2 II. BACKGROUND 2. Dauphin states that it is upgrading its public safety radio communication system. According to Dauphin, the new radio system will provide first responders with a county-wide communications capability along with interoperability with other jurisdictions. Dauphin states that the new system is a UHF centralized trunked system that operates in both the simulcast and non-simulcast modes.8 Dauphin notes that the majority of the channels used in its new system will be in the public safety 450-470 MHz band. Dauphin contends, however, that in the southern portion of the county the 450-470 MHz channels are heavily used and thus cannot be utilized for centralized trunked (FB8) mode operations.9 According to Dauphin, the only reasonable alternative available to it to use UHF frequencies in the 470-512 MHz band in the southern portion of the county.10 3. The Commission’s rules provide that frequencies allocated in the 470-512 MHz band (TV Channels 14-20) are available for assignment to private land mobile radio service (PLMRS) stations, including public safety stations, on a geographically-shared basis with TV broadcast stations in eleven urbanized areas of the United States.11 The frequencies sought for use by Dauphin are part of TV channel 19 (500-506 MHz). TV channel 19 spectrum is available for PLMR use in the Philadelphia, Pennsylvania urbanized area.12 4. Under the rules governing PLMR-TV sharing in the 470-512 MHz band, PLMR base stations must be located within eighty kilometers (fifty miles) of the geographic centers of the urbanized areas listed in Section 90.303.13 Because Dauphin’s proposed base stations would be located more than eighty kilometers (fifty miles) from Philadelphia, Pennsylvania urbanized area, Dauphin requires a waiver of Section 90.305(a). In addition, because Dauphin’s proposed operations do not meet other required mileage separation requirements to existing co-channel and adjacent channel TV stations, Dauphin requires a waiver of Sections 90.307 and 90.309. III. DISCUSSION 5. Section 1.925 states that to obtain a waiver of the Commission’s rules, a petitioner must demonstrate either that: (i) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the present case, and that a grant of the requested waiver would be in the public interest; or (ii) in view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest,14 or the applicant has no reasonable alternative.15 An applicant seeking a waiver faces a high hurdle and must (...continued from previous page) 7 47 U.S.C. § 337(c). 8 Waiver Request at 1. 9 Id. at 1, 9. 10 Id. at 2, 9. Dauphin also maintains that, because the remainder of the county operates on UHF channels, other frequency bands such as Very High Frequency (VHF), 700 MHz, and 800 MHz are not viable alternatives because end users would be required to carry two separate radios. Id. at 9. 11 47 C.F.R. Part 90, Subpart L. A list of the urbanized areas is provided in § 90.303. 12 47 C.F.R. §§ 2.106 n.NG66, 90.301, 90.303, 90.311. 13 47 C.F.R. §§ 90.303, 90.305(a). 14 47 C.F.R. § 1.925(b)(3)(i). 15 47 C.F.R. § 1.925(b)(3)(ii). Federal Communications Commission DA 07-2033 3 plead with particularity the facts and circumstances that warrant a waiver.16 Based on the information before us, we conclude that a grant of the Waiver Request is warranted, subject to certain conditions. 6. The purpose of the Commission’s Part 90, Subpart L rules is to protect over-the-air broadcast operations on TV channels 14-21 from harmful interference by PLMRS systems operating in the 470-512 MHz band.17 Without such rules in place, TV receivers could experience interference from PLMRS users. Thus, applicants requesting a waiver of these rules must demonstrate that no interference will be caused to full power co-channel and adjacent channel TV stations. Also, in cases where the applicant proposes an area of operation further than 128 kilometers (eighty miles) from the geographic center of the urbanized area (i.e., outside the area where PLMRS operations are primary), the applicant also must demonstrate that it would provide full protection to existing Class A and low power TV stations, including allotments and pending applications for such stations at the time the waiver was filed.18 We examine each rule section that needs to be waived below. 7. Section 90.305. Section 90.305 requires PLMRS base stations operating in the 470-512 MHz band to be located within eighty kilometers (fifty miles) of the geographic centers of urbanized areas listed in Section 90.303, and requires associated mobile units to restrict their operations to an area within 48 kilometers (thirty miles) of the base station, thus creating a circular area with a radius of 128 kilometers (eighty miles) where PLMRS stations may operate on a primary basis.19 Dauphin requires a waiver of Section 90.305(a) because its proposed base stations are all located more than eighty kilometers (fifty miles) from the center of the Philadelphia, Pennsylvania urbanized area. 8. In support of the Waiver Request, Dauphin argues that its proposed operation will have no impact on broadcast operations.20 Dauphin provides engineering studies purporting to show that all incumbent full service, Class A and LPTV stations on TV Channels 18-20 will receive greater protection than required under the rules.21 Further, Dauphin points out that the Commission granted a waiver of Section 90.305(a) to use 470-512 MHz frequencies to the County of York, Pennsylvania, a neighboring county on Dauphin’s southern border.22 Finally, Dauphin states that it is willing to operate on a secondary basis to television operations in accordance with the Commission’s Goosetown decision.23 9. We have reviewed Dauphin’s engineering analysis and find that Dauphin’s proposed base station operations would provide the requisite interference protection to incumbent full power TV 16 WAIT Radio v. FCC, 413 F.2d 1153, 1157 (D.C. Cir. 1969)(WAIT Radio), aff’d, 459 F.2d 1203 (1973), cert. denied, 409 U.S. 1027 (1972) (citing Rio Grande Family Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968)); Birach Broad Corp., Memorandum Opinion and Order, 18 FCC Rcd 1414, 1415 (2003). 17 See Geographic Reallocation of UHF-TV Channels 14 Through 20 to the Land Mobile Radio Services for Use Within the 25 Largest Urbanized Areas of the United States, Gen. Docket No. 18261, First Report and Order, 23 FCC 2d 325, 347 ¶¶ 42-43 (1970). 18 See Goosetown Enterprises, Inc., Memorandum Opinion and Order, 16 FCC Rcd 12792, 12797-98 ¶ 13 (2001) (Goosetown). 19 47 C.F.R. §§ 90.305(a), (b). 20 Waiver Request at 6. 21 Id. at 5. 22 Id. at 3. Dauphin contends that its proposed use of television channels in southern Dauphin County would constitute only a slight expansion of the relief previously authorized to County of York. Id. at 3 (citing County of York, Pennsylvania, Order, 19 FCC Rcd 24425 (2004) (WTB PSCID) (County of York) (granting County of York’s applications and waiver request to operate a public safety communications system on frequencies in the 500-506 MHz band subject to certain conditions). 23 Waiver Request at 11. Federal Communications Commission DA 07-2033 4 stations. Therefore, we agree with Dauphin that granting a waiver of Section 90.305(a) in this case would not undermine the purpose of the rule. Moreover, because a waiver will permit Dauphin to improve public safety communications and allow use of unassigned spectrum without causing interference to any existing user, we believe the public interest is served. We further note that to the extent Dauphin’s base stations are located more than 128 kilometers (eighty miles) from the center of the Philadelphia, Pennsylvania urbanized area (i.e., outside the PLMRS “primary zone”), its operation under this waiver is on a secondary basis to current and future full power and low power TV stations.24 10. Section 90.307. Dauphin also requests a waiver of Section 90.307(d), which requires PLMRS base stations to be separated from adjacent channel television stations by at least 145 kilometers (ninety miles). The purpose of Section 90.307(d) is to protect adjacent channel TV stations from interference caused by PLMRS mobile units operating in or near the TV station’s coverage area. Given a minimum distance separation of 145 kilometers (ninety miles) and the fact that mobile units must operate within forty-eight kilometers (thirty miles) of associated PLMRS base stations,25 mobile units must be located at least ninety-six kilometers (sixty miles) from an adjacent channel TV station. 11. According to Dauphin, three of its ten proposed base stations would not meet the minimum distance requirement specified in Section 90.307(d) with respect to adjacent channel TV Station WDCA, Washington, DC, operating on TV Channel 20.26 In support of its waiver request, Dauphin notes that the Commission encountered a similar situation in County of York, where the Commission granted a waiver on the condition that the County of York prevent its mobile units from operating within sixty miles of WDCA, TV Channel 20.27 Dauphin indicates that it would accept a similar condition to limit its mobile area of operation to within the county.28 Dauphin states that with such a limitation, the closest a mobile would operate to WDCA is approximately sixty-six miles.29 Dauphin also notes that, consistent with the criteria for obtaining a 470-512 MHz waiver specified in a 1991 Commission Public Notice, it notified WDCA of its application and associated waiver request.30 12. In County of York, we found that granting a waiver with a condition to restrict the area of mobile operation would not undermine the purpose of the rules because the condition would prevent mobile units from routinely entering the protected contour of TV station WDCA and it would protect receivers within the protected contour of WDCA from harmful interference.31 For similar reasons, we find a waiver here would not undermine the purpose of Section 90.307(d). We also conclude that waiving this rule would further the public interest because it would permit Dauphin to upgrade its communications system county-wide and, thereby, allow it to better protect lives and property. We therefore grant 24 Dauphin has agreed to operate the proposed base stations that are located more than 128 kilometers (80 miles) on a secondary basis. Waiver Request at 11. See Goosetown, 16 FCC Rcd at 12797-12798 ¶ 13. 25 See 47 C.F.R. § 90.305(b). 26 Waiver Request at 7. The closest base station with associated mobile units at Location 1C-TMI would be located 136.2 kilometers from Station WDCA. Id. 27 Waiver Request at 7, citing County of York, supra note 22. 28 Waiver Request at 7. 29 Id. 30 See Private Land Mobile Operations in the 470-512 MHz band, Public Notice No. 20291 (rel. Oct. 22, 1991) at 1 (Public Notice No. 20291). See also File Nos. 0002669118 and 0002669119, attached Certificate of Service dated March 1, 2007 and Certificate of Service dated March 2, 2007. Both FCC No. 0002669118 and 0002669119 contain copies of the same Certificates of Service. 31 County of York, 19 FCC Rcd at 24425 at ¶ 7. Federal Communications Commission DA 07-2033 5 Dauphin a waiver of Section 90.307(d), subject to the condition that Dauphin must take the necessary precautions to prevent its mobile units from operating outside the county. 13. Section 90.309. Dauphin also requests a waiver of Section 90.309, Table C regarding co- channel full power TV stations. Table C limits the power of a PLMRS mobile unit to ensure fifty dB protection at the Grade B contour of protected co-channel TV stations. According to Dauphin, it plans to deploy mobile units operating at twenty-five watts effective radiated power (ERP).32 A mobile power of twenty-five watts ERP requires Dauphin’s base stations to be separated from co-channel TV stations by at least 201 kilometers (125 miles). Dauphin states that six of its proposed base station sites are between 190 and 200 kilometers from co-channel TV Station WNPA, Jeannette, Pennsylvania (now WPCW).33 Where the base station is separated from a co-channel TV station by a distance between 190 and 200 kilometers, as proposed by Dauphin, Section 90.309, Table C limits the ERP of mobile units to ten watts.34 Because Dauphin seeks to operate its mobile radios at an ERP of twenty-five watts, a waiver of Section 90.309, Table C is required.35 14. Because Dauphin states that it would accept a condition to limit the proposed area of mobile operation to thirty-two kilometers around the “short-spaced” base stations, we believe that a waiver of Section 309, Table C is warranted.36 Our independent engineering analysis finds that when a mobile unit is placed at the edge of the thirty-two kilometer radius closest to Station WPCW, the 14 dBu interfering contour does not overlap the 64 dBu Grade B contour of Station WPCW. We therefore believe that the condition would protect receivers within the protected contour of WPCW from harmful interference and thus would compensate for the fact that the sites are not at least 201 kilometers from station WPCW. Accordingly, with respect to Station WPCW, we conclude that granting Dauphin’s request for a waiver of Table C of Section 90.309 to operate with twenty-five watt mobiles will not frustrate the underlying purpose of this rule and will promote the public interest.37 15. Our independent engineering analysis also finds that Dauphin’s Waiver Request fails to take into account co-channel Class A TV Station W19CI, serving Berwick, Pennsylvania.38 In order for Dauphin to use mobile units operating at twenty-five watts ERP throughout its proposed operating area, its base stations also must meet the 201 kilometer separation requirement from W19CI. Our analysis indicates that Dauphin’s base stations are as close as 104.6 kilometers to Class A TV station W19CI. Thus, a waiver of Table C of Section 90.309 is required due to the proximity of Dauphin’s base stations to Station W19CI.39 We also find that Dauphin’s base stations do not meet the required separation 32 Waiver Request at 8. 33 Id. WNPA was renamed WPCW in 2006. 34 Id. 35 See 47 C.F.R. § 90.309, Table C, which requires a minimum distance of 201 kilometers (125 miles) from a co- channel TV station to the associated base station, i.e., mobile center of operation, for an ERP of 25 watts. Dauphin’s center of mobile operations is located at its Fairview Township base station, which is 196.2 kilometers from Station WPCW. Therefore, because the location of Fairview Township would be closer than the minimum 201 kilometers permitted by Table C for a requested mobile unit ERP of 25 watts, Dauphin requires a waiver of Table C. 36 Waiver Request at 8. 37 As noted previously, Dauphin must take the necessary steps to prevent its mobile units from operating outside the county. 38 Under the Goosetown case, public safety entities requesting a waiver and located outside the eighty-mile “primary” area must also protect Class A operations. See Goosetown, 16 FCC Rcd at 12797 ¶ 13. 39 47 C.F.R. § 90.309, Table A & C. Our engineering analysis finds that Station W19CI is located 91.9 kilometers from Dauphin’s closest base station, which does not meet the minimum distance of 193 kilometers, as required by Table A. Similarly, our analysis indicates that the center of Dauphin’s mobile operation is 104.6 kilometers from (continued....) Federal Communications Commission DA 07-2033 6 requirements of Section 90.309, Table A with respect to W19CI (i.e., the base stations are “short-spaced” to W19CI). Under Section 90.309, Table A, Dauphin’s base stations must be at least 193 kilometers (120 miles) from co-channel TV stations.40 Our analysis shows that Dauphin’s base stations are as close as 91.9 kilometers. Consequently, a waiver of Section 90.309, Table A is required with respect to Dauphin’s proposed base stations. 16. For Class A station W19CI, we note, however, that on January 11, 2007, Catholic Broadcasting of Scranton, Inc. (Catholic Broadcasting), the licensee of Station W19CI, submitted a letter of concurrence to the Bureau.41 In the letter of concurrence, Catholic Broadcasting states that Dauphin’s proposed operations - which would use directional antennas and limit effective radiated power to ensure protection of W19CI – will pose no harmful interference to Station W19CI.42 Catholic Broadcasting therefore states that it has no objection to a grant of the applications.43 In light of Catholic Broadcasting’s letter of concurrence, we believe that granting a waiver of Tables A and C of Section 90.309 would not frustrate the underlying purpose of the Commission’s rules. We also conclude that grant of a waiver would be in the public interest. IV. CONCLUSION 17. Based on the record before us, we conclude that Dauphin has made an adequate showing that grant of its applications and Waiver Request would not frustrate the underlying purpose of the relevant Commission rules, and would be consistent with the public interest. We therefore grant Dauphin’s Waiver Request and associated applications to operate a public safety communications system on frequencies in the 500-506 MHz band, subject to the conditions stated herein. V. ORDERING CLAUSE 18. Accordingly, IT IS ORDERED pursuant to Sections 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Section 1.925 of the Commission’s rules, 47 C.F.R. § 1.925, that the waiver requests associated with applications FCC File Nos. 0002669118 and 0002669119, filed by the County of Dauphin on January 23, 2007, ARE GRANTED, subject to the conditions stated herein. 19. IT IS FURTHER ORDERED that grant of the waiver requests and associated applications, FCC File Nos. 0002669118 and 0002669119, are subject to the following conditions: (i) Dauphin’s operations are secondary to current and future full power and low power TV stations; (ii) Dauphin must prevent its mobiles from operating outside Dauphin County, and (iii) Dauphin must limit the area of mobile operation around the “short-spaced” base stations to a circular radius not to exceed thirty-two kilometers. 20. IT IS FURTHER ORDERED that the applications FCC File Nos. 0002669118 and 0002669119 SHALL BE PROCESSED consistent with this Order and the Commission’s rules. (...continued from previous page) Station W19CI, which does not meet the minimum distance of 201 kilometers between a co-channel TV station and a mobile center of operation for an effective radiated power (ERP) of 25 watts, as required by Table C. 40 47 C.F.R. § 90.309, Table A. 41 See FCC File Nos. 0002669118 and 0002669119, attached letter from James Brennan, Catholic Television to Andra Cunningham, Wireless Telecommunications Bureau, FCC (filed Jan. 11, 2007). 42 Id. 43 Id. Federal Communications Commission DA 07-2033 7 21. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the Commission’s rules, 47 C.F.R. §§ 0.191, 0.392. FEDERAL COMMUNICATIONS COMMISSION Dana Shaffer Chief, Policy Division Public Safety and Homeland Security Bureau