Federal Communications Commission DA 08-684 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of COUNTY OF YORK, PENNSYLVANIA To Modify a County-wide Public Safety Radio System Utilizing UHF Television Frequencies ) ) ) ) ) ) ) ) ) ) File Nos. 0003146572, 0003146578, 0003146590, 0003146594, 0003146602, 0003146605, 0003146618, 0003146622, 0003146623, 0003348963, 0003348964, 0003348966, 0003348967, 0003348968, 0003348970, 0003348971, 0003348973, 0003348974, 0003348976, 0003348977, 0003348979, 0003348981, 0003348982 ORDER Adopted: March 24, 2008 Released: March 25, 2008 By the Chief, Policy Division, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. The County of York, Pennsylvania (York) filed nine applications and request for continued waiver of Section 90.305(a) of the Commission’s rules1 to modify its public safety land mobile radio system2 and fourteen applications for control stations to be associated with the same radio system.3 For the reasons stated herein, we grant York’s request subject to certain conditions set forth below. II. BACKGROUND 2. In 2004, the Wireless Telecommunications Bureau’s former Public Safety and Critical Infrastructure Division (PSCID) granted York a conditional waiver of Section 90.305(a) to operate fifty- eight frequency pairs over ten sites in the television (TV) channel 19 band, 500-506 MHz.4 Section 1 47 C.F.R. § 90.305(a). 2 See File Nos. 0003146572, 0003146578, 0003146590, 0003146594, 0003146602, 0003146605, 0003146622, 0003146623, (filed August 22, 2007); File No. 0003146618 (filed August 22, 2007, amended February 26, 2008) and associated Request for Continued Waivers of Sections 2.106, 90.303, 90.305(a), and 90.311 of the Commission’s Rules and Regulations to Permit Public Safety Land Mobile Operation in the 500-506 MHz Band in York County, Pennsylvania (Waiver Request); see also System Description and Request for Extended Implementation and Shared Infrastructure. 3 See File Nos. 0003348963, 0003348964, 0003348967, 0003348968, 0003348970, 0003348974, 0003348977, 0003348979, 0003348981 (filed on March 7, 2008); File Nos. 0003348971, 0003348976, 0003348982,(filed March 7, 2008, amended March 17, 2008); File No. 0003348973 (filed March 7, 2008, amended March 18, 2008); File No. 0003348966(filed March 7, 2008, amended March 19, 2008) and associated Supplemental Statement in Support of 83 Control Stations (Control Station Supplement) and Control Station Contour Studies (Control Station Contour Studies). 4 See County of York, Order, 19 FCC Rcd 24425 (WTB PSCID 2004) (2004 Order). The resulting licenses are Stations WQBV472, WQBV473, WQBV573, WQBV579, WQBV581, WQBV583, WQBV584, WQBV598, WQBV599, WQBV600 and WQDJ694. Federal Communications Commission DA 08-684 2 90.305(a) provides that land mobile base stations operating in the 470-512 MHz band (which also constitutes TV channels 14 through 20) may be located only within eighty kilometers (fifty miles) of the geographic centers of the cities listed in Section 90.303.5 3. Although York is located more than eighty kilometers from Philadelphia, Pennsylvania, PSCID determined that a waiver was warranted because the underlying purpose of the rule would not be served by application in that instance. Specifically, based upon a review of York’s engineering analysis and, given that “TV channel 19 spectrum in this particular geographic area is unusable by TV stations due to the current environment of TV channel assignments,” PSCID concluded that York’s proposed base station operations “would provide the requisite interference protection to the service contours of incumbent TV stations.”6 4. Under Section 90.309(d), the minimum distance between a land mobile base station that has associated mobile units and a protected adjacent channel television station is 145 km (ninety miles).7 In the 2004 Order, PSCID noted that the purpose of the ninety-mile spacing requirement is to protect adjacent channel TV stations from interference caused by mobile units operating in or near the TV station’s coverage area.8 Combined with Section 90.305(b),9 which restricts mobile operation to an area within thirty miles of associated base stations, the base station spacing of ninety miles restricts mobile operations to at least sixty miles from an adjacent-channel TV station. PSCID noted that, because a portion of southwestern York County intersects a sixty-mile circle around adjacent TV channel 20, Station WDCA, Washington, D.C., York’s proposed mobile units operating on a day-to-day basis in this portion of York County would be operating within sixty miles of Station WDCA.10 5. PSCID also observed that, with York’s desire to operate in neighboring counties in response to “emergency incidents or mutual aid situations,” such operations could bring York’s mobile units inside the protected Grade B contour of Station WDCA, which extends approximately forty-seven miles in the direction of York but does not overlap York County.11 Based on these facts, PSCID implemented special conditions (i) imposing secondary status, (ii) requiring York to take necessary steps to prevent its mobile units outside the county from operating within sixty miles of Station WDCA, except in emergency situations, and (iii) requiring York to notify Station WDCA of the operating parameters of 5 47 C.F.R. §§ 90.303, 90.305(a). The Commission permitted land mobile sharing of TV channels 14-21 within certain urban areas in order to alleviate shortfalls of land mobile radio spectrum in those cities. 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, 338 ¶ 30 (1970). The Commission also imposed restrictions to protect over-the-air broadcast operations from harmful interference by land mobile systems operating in the 470-512 MHz band. See id.; Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communication Requirements Through the Year 2010, WT Docket No. 96-86, First Report and Order and Third Notice of Proposed Rulemaking, 14 FCC Rcd 152, 218-219 ¶ 148 (1998). 6 2004 Order, 19 FCC Rcd at 24427 ¶ 6. 7 47 C.F.R. § 90.307(d). 8 See 2004 Order, 19 FCC Rcd at 24427 ¶ 7. 9 See 47 C.F.R. § 90.305(b). 10 Id. at 24427 ¶ 7. 11 Id. Federal Communications Commission DA 08-684 3 its base and mobile stations before commencing operation or before altering its operation in any fashion that could increase the risk of interference.12 6. While the original design used ten fixed repeater sites, York now seeks to redesign its system by authorizing twenty-two new sites that were not covered by the 2004 Order, employing simulcast technology in five zones throughout the county.13 York would be using the same fifty-eight frequency pairs already on the existing licenses, and York seeks no new spectrum.14 York requests a waiver of Section 90.305(a) to operate at the new sites beyond eighty kilometers of Philadelphia, Pennsylvania pursuant to Section 1.925 of the Commission’s rules, or, alternatively, Section 337(c) of the Communications Act of 1934, as amended (“the Act”).15 In addition, York requests to license individually eighty-three control stations to be associated with the twenty-two-site system.16 All control stations would be located within York County except for one that would be 0.5 kilometers into adjacent Adams County, Pennsylvania.17 York notes that all would be within the currently authorized mobile area of operation,18 thus meeting the requirement of Section 90.305(c).19 Although York does not require a waiver for the proposed control stations, we consider them in this Order as a matter of administrative efficiency, given that the subject control stations comprise an integral part of York’s radio system. III. DISCUSSION 7. As an initial matter, we note that York is not seeking use of unassigned frequencies, but rather modification of its use of existing frequencies licensed per the 2004 Order. Accordingly, we proceed under the Commission’s Section 1.925 waiver criteria, rather than under Section 337(c) of the Act. To obtain a waiver of the Commission’s rules, a petitioner must demonstrate that either: (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 waiver would be in the public interest;20 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, or the applicant has no reasonable alternative.21 An applicant seeking a waiver faces a high hurdle and must plead with particularity the facts and 12 2004 Order, 19 FCC Rcd at 24429 ¶ 12. 13 Waiver Request at 2. Our analysis shows that the redesign would not employ the ten sites from the original design. See id. at Attachment One. While York does not explicitly request to delete the ten sites from its existing licenses, we anticipate that they would cancel automatically due to failure to construct facilities by the listed construction deadlines. See 47 C.F.R. § 90.155. 14 Waiver Request at 6. 15 See 47 C.F.R. § 1.925, 47 U.S.C. § 337(c); Waiver Request at 6-8. 16 See Control Station Supplement at 2. York is requesting individual licensing of control stations because Section 90.119(b), 47 C.F.R. § 90.119(b), requires that applicants in the 470-512 MHz band must furnish “relevant information” for all control stations. 17 See Control Station Supplement at 2. 18 Id. The mobile area of operation extends forty kilometers from York County. See license for Station WQDJ694. 19 See 47 C.F.R. § 90.305(c). Control stations must be located within the area of operation of the mobile units. Id. 20 47 C.F.R. § 1.925(b)(3)(i). 21 47 C.F.R. § 1.925(b)(3)(ii). Federal Communications Commission DA 08-684 4 circumstances that warrant a waiver.22 For the reasons stated below, we conclude that grant of the requested waiver is warranted, and the applications should be granted, subject to condition. 8. York states that the proposed land mobile operations would not affect any incumbent TV station’s use of TV channel 19.23 In this connection, York states that the conditions surrounding the potential use of TV channel 19 remain unchanged since release of the 2004 Order, thus making TV channel 19 unusable to other television stations in the general geographic area without causing potential interference to incumbent TV stations operating on TV channels 18, 19, and 20.24 9. We first address the fact that York’s composite interference contour would expand should we grant its proposed modification. As a result, York’s engineering analysis indicates that co- channel TV Stations W19CI, Berwick, Pennsylvania and WPCW, Jeannette, Pennsylvania, would not be afforded fifty dB protection at each station’s sixty-four dBu Grade B contours as required by Section 90.309, Table A.25 However, TV Stations W19CI and WPCW provide letters of concurrence and agree to accept the lower forty-three dB level of protection offered by York.26 Although these concurrence letters precede York’s fourteen applications for control stations, we note that York has provided contour studies for the eighty-three control stations to show that their interference contours fall within the composite interference contour of the twenty-two base station sites.27 Based on our review of these contours, we are persuaded that the control stations would provide forty-three dB or greater protection to TV Stations W19CI and WPCW, because the control stations would not expand the base station composite interference contour to which these TV stations consented. Thus, provided York maintains no less than forty-three dB protection to TV Stations W19CI and WPCW, we are not concerned by its expanded contour for purposes of Section 90.309 Table A. 10. We next turn to analyzing whether the proposed modification would impact other incumbent TV stations. Due to PSCID’s concerns regarding TV channel 20 Station WDCA in the 2004 Order,28 we believe that the conditions from the 2004 Order should continue to apply. Based on our review of York’s engineering analysis and the contour studies for the control stations, we find that all other incumbent full service, Class A, and low power TV (both analog and DTV) stations would receive greater protection than required by our rules.29 Based on these facts and, given that York’s proposal would allow it to continue use of TV channel 19 spectrum without causing interference to any other user, we conclude that the underlying purpose of the rules would not be served or would be frustrated by application to the present case. 22 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 Radio 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). 23 See Waiver Request at 6. 24 See id. 25 See id. at 3-4 and Attachment Three; 47 C.F.R. § 90.309, Table A. The protected contour for a TV station operating on TV channels 14-69 is the Grade B, 64 dBu, F(50,50) contour. See 47 C.F.R. §§ 73.683(a), 90.307. 26 See Letter from James Brennan, Manager, Catholic Television, to Public Safety and Homeland Security Bureau, Federal Communications Commission (dated June 18, 2007); Letter from Christopher Pike, Vice President and General Manager for KDKA and WPCW, to Public Safety and Homeland Security Bureau, Federal Communications Commission (dated July 13, 2007). 27 See Control Station Contour Studies. 28 2004 Order, 19 FCC Rcd at 24427-8 ¶ 7. 29 See Waiver Request at 3-5. Federal Communications Commission DA 08-684 5 11. Although York states that “conditions leading to the granting of the original waivers remain,”30 we point out that the regulatory landscape with respect to the 700 MHz and 800 MHz bands has changed considerably since 2004.31 With respect to the 700 MHz band, for example, we no longer believe that “television stations will remain in operation on Channels 60-69 for some time to come” as speculated in the 2004 Order.32 Congress decided to accelerate the DTV transition by providing a date certain, February 17, 2009, for the end of the transition,33 and, on January 16, 2008, the Commission commenced the auction of licenses in the 700 MHz band.34 Notwithstanding the recent developments in the 700 MHz and 800 MHz bands, we find that grant of the instant request for continued waiver relief is warranted, especially because York will still afford the requisite interference protection to incumbent TV stations, seeks no new spectrum, and agrees to the conditions established in the 2004 Order to protect Station WDCA.35 For these reasons, we conclude that grant of the instant request is warranted. 12. We also conclude that grant of the instant request would serve the public interest by affording York’s public safety community continued and improved access to radio spectrum. Specifically, based on the record before us, we find that York’s proposed redesign of its system would optimize its public safety communications, improve coverage throughout the county,36 and further support the safety of life and property.37 Accordingly, we grant the Waiver Request and apply by incorporation the conditions of the 2004 Order. IV. CONCLUSION 13. Based on the record before us, we conclude that York’s request continues to satisfy the waiver criteria set forth by Section 1.925(b)(3). We therefore grant York’s continued request for waiver and will process its applications, as conditioned herein, thus enabling York to redistribute its existing frequency pairs over the new sites specified in its applications. V. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that, pursuant to Section 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, the request for waiver associated with the captioned applications filed by York IS GRANTED ON THE CONDITION THAT · Operations are secondary to existing and future full power, Class A, and low power TV stations. 30 See id. at 2. 31 See 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). See also Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, Report and Order, 19 FCC Rcd 14969 (2005). 32 See 2004 Order, 19 FCC Rcd at 24428 ¶ 9. 33 See Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006). 34 See Auction of 700 MHz Band Licenses Scheduled for January 16, 2008, Public Notice, 22 FCC Rcd 15004 (2007). 35 See 2004 Order, 19 FCC Rcd at 24429 ¶ 12. 36 See Waiver Request at 2. 37 See id. at 8. Federal Communications Commission DA 08-684 6 · Licensee must take steps to prevent its mobile units operating outside of York County from operating within sixty miles of TV Station WDCA, channel 20, Washington, DC, except in emergency situations.38 Before commencing operation, and before altering its operation in any fashion that could increase the risk of interference, licensee must notify Station WDCA of the operating parameters of its base and mobile stations. This condition shall remain in effect for the duration of Station WDCA’s operations on TV channel 20.39 15. IT IS FURTHER ORDERED that, pursuant to Section 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 File Nos. 0003146572, 0003146578, 0003146590, 0003146594, 0003146602, 0003146605, 0003146618, 0003146622, 0003146623, 0003348963, 0003348964, 0003348966, 0003348967, 0003348968, 0003348970, 0003348971, 0003348973, 0003348974, 0003348976, 0003348977, 0003348979, 0003348981, and 0003348982 SHALL BE PROCESSED consistent with this Order and the Commission’s rules. 16. 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 Thomas J. Beers Chief, Policy Division Public Safety and Homeland Security Bureau 38 We anticipate that York’s mobile excursions during emergency situations would be limited to small areas and only in exigent circumstances where calls for mutual aid demand York’s response. 39 In the Washington DC market, analog TV operations on TV channel 20 are set to cease after the DTV transition completes on February 17, 2009. Corresponding DTV operations on TV channel 35 will continue. See Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, Seventh Report and Order and Eighth Further Notice of Proposed Rulemaking, 22 FCC Rcd 15581, 15651 Appendix A (2007).