Federal Communications Commission DA 08-1448 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of STATE OF WYOMING Request for Waiver Pursuant to Section 337(c) of the Communications Act of 1934, as amended ) ) ) ) ) ) File No. 0002910742 ORDER Adopted: June 19, 2008 Released: June 19, 2008 By the Chief, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. The State of Wyoming (“Wyoming” or “the State”) filed an application1 for authority to use eleven Part 222 frequency pairs in the 150 MHz band in varying combinations at eleven locations as part of a statewide narrowband digital trunked P-25 radio communications system called “WyoLink.”3 Wyoming seeks waiver of Sections 20.9(a)(6), 22.561, and 22.565(f) of the Commission’s rules,4 to use frequencies not designated for public safety use, pursuant to Section 337(c) of the Communications Act of 1934, as amended (the Act).5 By this Order, we grant Wyoming’s request as conditioned herein. II. BACKGROUND 2. Wyoming states that it needs to construct a new communications system (“Wyolink”) because its existing communications system is aging and has limited radio facilities.6 Wyoming adds that it “currently relies on significantly limited and outdated radio facilities to meet its public safety-related communications requirements.”7 Wyoming explains that “[i]ncreased communications demands on these facilities often cause congestion that adversely affect Wyoming’s ability to process critical public safety transmissions.”8 Furthermore, Wyoming states that “the technology underlying these legacy facilities is 1 See File No. 0002910742 (filed Feb. 12, 2007, as amended May 1, 2007; Aug. 24, 2007; Nov. 21, 2007; Jan. 18, 2008; and Apr. 16, 2008) and associated Clarifying Amendment and Exhibit A to Form 601(Amended) - Description of FCC Applications and Request for Waiver at 1, 22 (Amended Waiver Request) (filed April 16, 2008), Response to Return Notice and Amendment (filed May 1, 2007), Response to Second Return Notice and Amendment (filed Nov. 21, 2007), Supplemental Information and Amendment (filed Jan. 18, 2008, amended April 15, 2008). 2 47 C.F.R. Part 22. 3 See Clarifying Amendment at 1. The instant Application and Waiver Request are part of twenty-nine applications filed by Wyoming to use certain frequencies governed under Parts 22, 80 and 90 of the Commission’s rules as part of its proposed WyoLink system. See, e.g., File Nos. 0002947551, 0003029378. 4 47 C.F.R. §§ 20.9(a)(6), 22.561, and 22.565(f). 5 47 U.S.C. § 337(c). Alternatively, Wyoming seeks a waiver pursuant to Section 1.925 of the Commission’s rules, 47 C.F.R. § 1.925. See Waiver Request at 3. 6 See Amended Waiver Request at 1. 7 Id. at 2. 8 Id. Federal Communications Commission DA 08-1448 2 obsolete, which hinders or precludes the implementation of enhancements that could accommodate the State’s requirement for advanced voice and mobile data communications capabilities or for improved and innovative features and functionalities to support first responders.”9 According to Wyoming, the existing system “is difficult to maintain and repair” because some of the equipment has been discontinued or can no longer be maintained by the manufacturer.10 Finally, Wyoming states that “operational and technical disparities in radio facilities deployed by the State’s various agencies make interoperability difficult—and sometimes impossible.”11 3. According to Wyoming, “the WyoLink system will offer advanced features and functionalities, greatly increase transmission capacity, serve to fill in coverage gaps, and allow for seamless, wide-area roaming.”12 Wyoming states that the proposed system “will be used by participating local, state, and federal agencies to support critical public safety activities benefiting Wyoming’s population of over 500,000 and its more than 11 million annual visitors and tourists.”13 Furthermore, the system “will provide users with a variety of mobile data features including, among other things, the ability to query various state and national databases, provide short messaging capabilities, and connect with the State’s computer-aided dispatch (“CAD”) system.”14 In addition, the system “will support automatic vehicle identification (“AVI”) or automatic vehicle location (“AVL”) services.”15 4. The WyoLink system will utilize approximately fifty-seven mountain-top repeater sites and twenty-three low-level repeater sites dispersed throughout Wyoming’s twenty-three county seats, and seven channel pairs (which includes a control channel) per site.16 Seven duplex channels at fifty-seven high-level and twenty-three low-level sites translate to the equivalent of 1,120 frequencies (eighty sites multiplied by seven channel pairs), although Wyoming plans extensive reuse of channels.17 The State plans to interconnect these repeater sites using its existing 6 GHz digital microwave backbone in south Wyoming, and an identical system in north Wyoming.18 Wyoming states that the system will be divided into two zones with separate controllers, one located in Cheyenne and the other located ninety miles away in Casper to ensure sufficient network capacity as well as provide dispatch center connectivity.19 Furthermore, Wyoming states that “the system is designed to provide mobile radio coverage to 95% of the State and support approximately 12,000 subscriber units (handheld/portable) to be deployed by State agencies as well as participating local agencies, including law enforcement departments, fire departments, hospitals, ambulance services and emergency medical teams.”20 Wyoming states that WyoLink is “fully compatible with the Integrated Wireless Network (“IWN”) envisioned for national Federal 9 Id. 10 See id. 11 Id. at 3. 12 Id. at 5. 13 Id. at 1. 14 Id. at 5. 15 Id. 16 See id. at 4. 17 See id. at 8. 18 See id. at 4. 19 See id. 20 Id. at 5. Federal Communications Commission DA 08-1448 3 implementation, and the State recently signed a Memorandum of Understanding (“MOU”) to accommodate interoperable communications with the Department of Interior.”21 5. Wyoming also states that the “needed spectrum from the Public Safety Pool is either unavailable or unsuitable to meet its requirements.”22 In the instant application, Wyoming seeks eleven frequency pairs allocated for Part 22 one-way or two-way public land mobile service.23 Since these frequencies are not allocated for public safety use, Wyoming seeks waiver of Section 22.561.24 The frequencies would be assigned in varying combinations to eleven locations spread over Basic Economic Area (BEA) Nos. 143, 144, and 152.25 Operations on these frequencies are treated as commercial mobile radio services (CMRS) pursuant to Section 20.9(a)(6),26 but Wyoming would use these frequencies to support public safety operations that are not offered on a CMRS basis.27 Therefore, Wyoming seeks waiver of Section 20.9(a)(6).28 Finally, because Wyoming seeks to use 100-watt mobile transmitters, it requests waiver of the sixty-watt mobile power limitation specified in Section 22.565(f).29 6. On April 3, 2008, the Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice30 seeking comment on the application and waiver request. The Bureau also sought comment on whether the 700 MHz public safety band would provide a viable alternative, in light of the approaching February 17, 2009, digital television transition date and the Commission’s recent actions in facilitating a nationwide, interoperable broadband public safety network.31 While we received no comments addressing the merits of the application and waiver request, we received one comment from the Association of Public-Safety Communications Officials-International, Inc. (“APCO”) pertaining to the availability of the 700 MHz band.32 7. APCO states that “the 700 MHz band has never been viewed as a replacement for existing public safety spectrum allocations, and availability of 700 MHz spectrum should not in any way prevent public safety agencies licensed in VHF and UHF from obtaining additional channels to expand their operations in their existing bands when circumstances warrant.”33 APCO further states that the large embedded base of existing VHF public safety systems often require additional VHF spectrum to fill 21 Id. 22 Id. at 1. 23 See 47 C.F.R. § 22.561. 24 See Amended Waiver Request at 10. 25 See Supplemental Information and Amendment. 26 See 47 C.F.R. § 20.9(a)(6). 27 See Amended Waiver Request at 9. 28 See id. 29 See id. at 9-10. See also 47 C.F.R. § 22.565. 30 See Public Safety and Homeland Security Bureau Seeks Comment on Request for Waiver Filed By the State of Wyoming to Use Frequencies Governed Under Part 22 of the Commission Rules, Public Notice, 23 FCC Rcd 5630 (PSHSB 2008) (Public Notice). 31 Id. at 2, citing Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229; Development of Operational, Technical and Spectrum Requirements for Meeting Federal State and Local Public Safety Communications Requirements through the Year 2010, WT Docket No. 96- 86, Second Report and Order, 22 FCC Rcd 15289 (2007) (700 MHz Second Report and Order). 32 See Comments of APCO dated April 16, 2008 (APCO Comments). 33 APCO Comments at 2. Federal Communications Commission DA 08-1448 4 coverage gaps, accommodate additional users, reduce interference, expand services areas, or improve interoperability.34 In this regard, APCO states that “interoperability could suffer if few agencies move to 700 MHz while others remain at VHF.”35 Next, APCO argues that the Commission’s recent actions to facilitate a 700 MHz band public safety broadband network will not address the immediate demand for narrowband voice capacity because such a network will take many years to deploy, and may never provide nationwide mission-critical voice communications.36 APCO adds that the Commission’s consideration of waiver requests must take into account that “public safety agencies often have specific requirements for radio frequencies in their current spectrum bands that justify waivers of the Commission’s rules, notwithstanding the potential availability of channels in the new 700 MHz band.”37 III. DISCUSSION 8. Section 337(c) of the Act provides that the Commission shall waive any rules necessary to authorize entities providing public safety services to operate on unassigned non-public safety spectrum, if the Commission makes five specific findings: · no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use; · 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; · 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; · the unassigned frequency was allocated for its present use not less than 2 years prior to the date on which the application is granted; and · granting such application is consistent with the public interest.38 9. When considering requests under Section 337(c) of the Act, we must first determine whether the applicant is “an entity seeking to provide public safety services.”39 The statute describes public safety services as services that are provided by state or local government entities or by non- governmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services.40 Wyoming seeks to deploy a statewide radio communications system to 34 See id. 35 Id. at 2-3. 36 Id. at 3. 37 Id. 38 See 47 U.S.C. § 337(c). 39 Id. 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.” Id. 40 Id. Federal Communications Commission DA 08-1448 5 support critical public safety activities.41 Accordingly, based on the record, we conclude that Wyoming is an entity providing public safety services. Next, we turn to whether Wyoming satisfies the other statutory requirements supporting a waiver under Section 337(c) of the Act. 10. No other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use. Wyoming states that two years prior to filing its application, it initiated discussions with APCO to assess available spectrum in the VHF, UHF, 700 MHz, and 800 MHz bands to fulfill its requirements.42 The State concluded that the VHF band would be most practicable for several reasons. First, the VHF band is the only band with sufficient channels state-wide.43 Second, compared to other bands, the VHF propagation characteristics provide wider coverage, provide better signal penetration in buildings, and suffer less attenuation from variable terrain, trees, foliage, hills, and other obstacles.44 Wyoming asserts that the optimal propagation characteristics of the VHF band would enable it to operate the fewest number of base station transmitters, while three or four times the number of sites would be required to cover the same area using 700 MHz or 800 MHz band technology.45 Third, it offers backward compatibility with the State’s current VHF infrastructure and would facilitate migration to the new system for most of Wyoming’s agencies that already operate on VHF frequencies.46 For example, Wyoming’s decision to deploy VHF channels will allow it to reuse its existing base station sites, rather than construct new or more sites to accommodate a different portion of spectrum.47 Wyoming notes that all but two public safety agencies in Wyoming use VHF radio systems.48 Fourth, the VHF band promotes partnerships with Federal agencies due to compatibility of VHF public safety equipment with the 163-174 MHz Federal band.49 However, Wyoming was not able to coordinate a sufficient number of VHF frequencies from the Part 90 Public Safety Pool due to interference concerns.50 11. Wyoming states that VHF-band spectrum from the Public Safety Pool is either unavailable or unsuitable to meet its requirements.51 Wyoming acknowledges that “a limited number of VHF Part 90 Public Safety Pool channels remain available in certain areas of Wyoming.”52 However, Wyoming states that it has not requested use of these channels because they are (1) “subject to interference from co-channel operators,” (2) “inadequate or inappropriate to support the State’s needs,” or (3) “needed by smaller local public safety providers in Wyoming that also are upgrading their communications systems now that new technology is available.”53 Furthermore, Wyoming states that VHF Part 90 Public Safety Pool channels “are not readily compatible with VHF trunked systems because they are traditionally assigned on a shared basis and are subject to regulatory obligations that effectively 41 See Amended Waiver Request at 1. 42 See id. at 5, 14. 43 See id. at 5, 14. 44 See id. at 6, 14. 45 See id. at 6. 46 See id. at 6-7, 14. 47 See id. at 7. 48 See id. at 5. 49 See id. at 5, 7-8, 15. 50 See id. at 8, 15. 51 See id. at 8-9. 52 Id. at 8 n.25. 53 Id. Federal Communications Commission DA 08-1448 6 preclude their use in a system such as WyoLink.”54 Thus, Wyoming asserts that “the Part 90 channels should be deemed exhausted” for purposes of the instant request.55 12. Wyoming states that it was not able to coordinate a sufficient number of VHF Part 90 Public Safety Pool channels needed to meet the spectrum needs of the proposed statewide system.56 This assessment is supported by FCC-certified public safety frequency coordinator Forestry Conservation Communications Association (FCCA).57 FCCA states that it received fourteen Wyoming applications for coordination of VHF Part 90 Public Safety Pool channels that Wyoming had believed were available and usable.58 However, FCCA’s review determined that Wyoming’s operation on many frequencies would cause interference to incumbent licensees.59 Specifically, FCCA states that its review: “exhausted all available Public Safety pool frequencies that would meet the State’s channel configuration requirements, its spectrum needs, and the obligation to ensure that operation on the selected frequencies would not adversely interact with co-channel or adjacent channel operations or causes it intermodulation distortion that would render the receivers at the proposed Wyolink sites unusable.”60 13. Based on the totality of facts presented above, we find that the first prong of Section 337(c) of the Act is satisfied. We find that no other spectrum band besides VHF is “immediately available” to meet the following requirements. First, no other band has a sufficient number of channels immediately available to satisfy Wyoming’s proposal to implement a state-wide system requiring “seven duplex channels at 57 high-level and 23 low-level sites,” translating to “the equivalent of 1,120 frequencies.”61 Second, no other band is immediately available to meet the terrain, coverage, and building penetration challenges with the fewest number of base stations. Because the state is “comprised of almost 100,000 square miles of territory and a variety of terrain,” Wyoming avers that the propagation characteristics of VHF frequencies will enable it “to provide mobile radio coverage to 95% of the State.”62 By comparison, Wyoming estimates that “3 to 4 times more sites would be required to provide comparable coverage using 700 MHz or 800 MHz technology.”63 Third, no other band is immediately available to allow for reuse of Wyoming’s existing VHF infrastructure. Wyoming states that, given the “significant number of additional channels to upgrade its facilities,” it concluded that the VHF band would be the most practicable spectrum.64 Because Wyoming found that most of the VHF channels allocated to the Part 90 Public Safety Pool within its jurisdiction had been licensed or “are in the process of being frequency coordinated,” it concluded that channels allocated under Part 22 could meet its 54 Id. at 8. 55 Id. at 8-9. 56 See Response to Second Return and Amendment at 2. 57 See Response to Second Return and Amendment, attached Letter dated November 21, 2007 from James Kelly, FCCA Public Safety Frequency Coordinator, to the Federal Communications Commission (FCCA Letter). 58 See FCCA Letter at 1. 59 Id. 60 Id. 61 Amended Waiver Request at 8. 62 Id. at 6. 63 Id. 64 See id. at 14. Federal Communications Commission DA 08-1448 7 channel requirements.65 Finally, no other band would have interoperability capability with a majority of Wyoming’s public safety agencies operating on VHF frequencies, or Federal agencies operating in the 163-174 MHz band “to satisfy the requested public safety service use.” In noting that “half of the land in Wyoming is controlled by Federal agencies,” Wyoming states that its decision to operate on 150-160 MHz VHF spectrum compatible with the 163-174 MHz VHF spectrum used by Federal agencies “helps enhance the State’s continuing relationship with the Federal Government and creates new opportunities to establish or expand other relationships.”66 14. 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. Wyoming submitted an engineering analysis report stating that its proposed operation will not cause harmful interference to incumbent site-based and geographic area-based co-channel licensees.67 Specifically, Wyoming performed a contour analysis with respect to co-channel incumbent licensees as directed by Section 22.567(a)(1).68 Wyoming provided contour plots to demonstrate that the interfering contours for the eleven base station transmitters covered in this application do not overlap any service contours of co-channel incumbent licensees.69 We have verified Wyoming’s findings and find that its proposed operations would not cause harmful interference to incumbent co-channel licensees. However, we note that Section 22.567(a)(2) also requires either a reverse contour study or a statement from the applicant agreeing to accept any interference that may result from operation of a protected co-channel transmitter.70 Since Wyoming provided neither, we condition Wyoming’s operation on accepting any interference from existing co-channel licensees. Should Wyoming subsequently file a satisfactory contour study pursuant to Section 22.567(a)(2), we may consider modifying this condition. 15. Regarding the waiver of power limits, Section 22.565(f) limits the transmitter output power of mobiles to sixty watts.71 Wyoming plans to deploy mobiles with 100 watts transmitter output power to enhance coverage.72 Wyoming claims that these operations will not cause any greater potential for interference than under allowable levels.73 For example, Wyoming’s mobiles will use zero gain antennas so as to limit the effective radiated power to 100 watts.74 Wyoming also states that it “will designate a single point-of-contact to handle interference complaints and will provide all potentially affected licensees with the contact information for that person.”75 In light of these technical parameters and representations, we therefore find that a waiver of Section 22.565(f) is warranted. 65 Id. at 14-15. 66 Id. at 7. In light of these considerations and APCO’s comments discussed above, we thus also conclude that the 700 MHz public safety spectrum would not be immediately available to satisfy the State’s particular circumstances and needs. See supra ¶¶ 6-7. 67 See Supplemental Information and Amendment at 1. 68 47 C.F.R. § 22.567(a)(1). 69 See Supplemental Information and Amendment. 70 47 C.F.R. § 22.567(a)(2). 71 47 C.F.R. § 22.565(f). 72 See Amended Waiver Request at 10. 73 See id. 74 See id. 75 Id. Federal Communications Commission DA 08-1448 8 16. Wyoming’s proposed operation is technically feasible because the requested frequencies are already allocated for a land mobile service.76 In this respect, the use proposed by Wyoming with the caveat that Wyoming would use the frequencies for private land mobile service rather than public land mobile service, is consistent with existing uses in this spectrum.77 In light of these facts and our conclusions above related to interference and power, we conclude that 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. 17. 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. As Wyoming notes, “the proposed system is being implemented specifically to enhance interoperability among state, local, and federal public safety agencies within Wyoming.”78 Wyoming states that it “is seeking to acquire and utilize channels that coincide and are compatible with its current configuration and use.”79 Given that “other allocations” of the VHF band include the private land mobile radio services and the subset of public safety,80 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 for which the application is made. 18. The unassigned frequency was allocated for its present use not less than 2 years prior the date on which the application is granted. Wyoming states that the requested Part 22 frequencies were allocated for paging and radiotelephone services for over two years.81 Wyoming also notes that the Commission attempted to auction these frequencies in 2001 (Auction 40) and again in 2003 (Auction 48).82 In some cases, no entity bid in the relevant Economic Areas affecting Wyoming. In other cases, licenses were awarded but have since terminated. We agree that the subject frequencies have been allocated under Part 22 for their present use for more than over two years. 19. Granting such application is consistent with the public interest. Based upon the record in this proceeding, we believe Wyoming has demonstrated that access to additional VHF spectrum is needed in this instance to promote effective public safety communications. Wyoming states that the public interest will be served as a grant “will allow otherwise vacant spectrum to be used by State to support essential communications needed to protect the safety of life, health, and property.”83 Wyoming states that “[f]ailure to construct the proposed system would result in continued communications inefficiencies and could jeopardize public safety” in the state.84 We find that it would further the public interest by affording Wyoming’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 76 See 47 C.F.R. § 22.561. 77 See Amended Waiver Request at 11. 78 Id. at 15. 79 Id. 80 See 47 C.F.R. § 90.20. 81 See Amended Waiver Request at 15. 82 See id. at 15-16. See also Lower and Upper Paging Bands Auction Closes, Public Notice, Report No. AUC-01- 40-N (Auction No. 40), 16 FCC Rcd 21821 (2001); and Upper Paging Bands Auction Closes, Public Notice, Report No. AUC-03-48-E (Auction No. 48), 18 FCC Rcd 11154 (2003). 83 Amended Waiver Request at 16. 84 Id. Federal Communications Commission DA 08-1448 9 purposes as “promoting safety of life and property through the use of radio communication.”85 Additionally, we find it significant that granting the instant request will promote interoperability capability among the public safety community in Wyoming. Therefore, we conclude that granting the instant application is consistent with the public interest. Because we find that all five prongs of Section 337(c) of the Act are satisfied, we shall waive rule Sections 20.9(a)(6) so that Wyoming’s communications would not be treated as common carriage services and regulated as commercial mobile radio services; 22.561 to permit public safety, private land mobile radio service on the frequencies allocated to public land mobile radio service; and Section 22.565(f) to permit mobile operation above sixty watts and up to 100 watts. IV. CONCLUSION 20. Based on the record before us, we conclude that Wyoming’s waiver request satisfies the criteria set forth under Section 337(c) of the Act to warrant grant of the waiver of Sections 20.9(a)(6), 22.561, and 22.565(f) to operate a public safety communications system on Part 22 frequencies in the 150 MHz band. Accordingly, we grant the Waiver Request with the following special condition: Wyoming must accept any interference that may result from operation of co-channel transmitters authorized to incumbent licensees. V. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED 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 the Request for Waiver, as amended, associated with File No. 0002910742 filed by the State of Wyoming IS GRANTED, AS conditioned herein. 22. IT IS FURTHER ORDERED that File No. 0002910742 SHALL BE PROCESSED consistent with this Order and the Commission’s rules. 23. 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 Derek K. Poarch Chief Public Safety and Homeland Security Bureau 85 47 U.S.C. § 151.