Federal Communications Commission DA 12-1299 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Monterey County, California Request for Waiver of Section 90.209(b) of the Commission’s Rules ) ) ) ) ) ) ) WT Docket 99-87 ORDER Adopted: August 10, 2012 Released: August 10, 2012 By the Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. We have before us the request of Monterey County, California (the County),1 for a waiver until July 1, 2013, of the Commission’s January 1, 2013 VHF/UHF narrowbanding deadline, which requires private land mobile radio licensees in the 150-174 MHz and 450-512 MHz bands to operate using channel bandwidth of no more than 12.5 kHz or equivalent efficiency by January 1, 2013.2 The County seeks a waiver for itself and on behalf of all local agencies participating in the Next Generation (NGEN) radio system.3 By this Order, we grant the Waiver Request. II. BACKGROUND 2. The County and other members of the NGEN radio systems currently operate a number of separate conventional radio channels.4 In 2006, the County Board of Supervisors approved a plan recommending regionalization of all public radio systems.5 On May 22, 2007, the Board of Supervisors approved a Request For Proposal (RFP) to develop a regional system.6 Developing the system requirements, including getting a commitment from the member agencies to fund the system took over two years and on June 1, 2009 the County released an RFP soliciting turnkey proposals for the design and 1 See Request for FCC Narrowband Deadline Waiver, filed December 20, 2011 (Waiver Request). See also Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies, Third Memorandum Opinion and Order and Third Further Notice of Proposed Rule Making and Order, WT Docket No. 99-87, RM-9332, 19 FCC Rcd 25045 (2004). 2 47 C.F.R § 90.209(b). 3 Members of the NGEN radio system include the County of Monterey, Cities of Carmel-by-the-Sea, Del Rey Oaks, Gonzales, Greenfield, King City, Marina, Monterey, Pacific Grove, Salinas, Seaside, Sand City and Soledad, Monterey Regional Fire Protection District, North County Fire Protection Districts, Spreckels Volunteer Fire Company and Big Sur Volunteer Fire Brigade. Governance of the NGEN radio system is facilitated through the Emergency Communications User Advisory Council (ECUAC). Waiver Request at 1. 4 See Table 1, Waiver Request at 4-9. 5 Waiver Request at 1. 6 Waiver Request at 1-2. Federal Communications Commission DA 12-1299 2 implementation of the NGEN radio system.7 The County awarded the contract to Harris Corporation in 2010.8 The NGEN system, as currently designed, will have a P25 VHF trunked subsystem, a P25 700 MHz trunked subsystem and analog VHF conventional paging and overlay subsystem. The NGEN system is funded directly by member agencies with support from federal grants included the U.S. Department of Justice Community Oriented Policing (COPS) Technology Grant Program and the Assistance for Firefighters Grant (AFG) Program.9 3. The original plan was to complete and cutover to the NGEN system prior to January 1, 2013; but two of the essential radio sites are experiencing an extended regulatory review process including compliance with the California Environmental Quality Act (CEQA) and National Historic Preservation Act (NHPA).10 The current schedule has system cutover beginning in late May 2013 and a final acceptance date of August 5, 2013.11 The County recognizes that it may need to seek an additional extension, i.e., beyond August 5, 2013, of the waiver for some call signs.12 4. On January 27, 2012, the Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice seeking comment on the Waiver Request.13 No party filed comments specifically in support of or in opposition to the County’s request. III. DISCUSSION 5. The County seeks relief pursuant to Section 1.925 of the Commission’s rules, which provides 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 waiver would be in the public interest;14 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.15 Applying this standard to narrowbanding, we have stated in the Narrowbanding Waiver Guidance Notice, jointly issued by the Wireless Telecommunications Bureau, the Public Safety and Homeland Security Bureau, and the Office of Engineering and Technology, that narrowbanding waiver requests “will be subject to a high level of scrutiny” under the waiver standard.16 We have also provided recommended guidance on the factors that licensees should address in their requests and have recommended that in addressing these factors, licensees should seek to demonstrate that “(i) they have worked diligently and in good faith to narrowband their systems expeditiously; (ii) their specific circumstances warrant a temporary extension of 7 Id. 8 Id at 2. 9 Id. 10 Id. 11 Email, dated April 24, 2012 from Zack Sterngold, project manager NEGN to Roberto Mussenden, Federal Communications Commission. 12 Id. 13 See Public Safety and Homeland Security Bureau Seeks Comment on Requests for Waiver Of The January 1, 2013 VHF-UHF Narrowbanding Deadline, Public Notice, DA 12-90 (rel. Jan. 27, 2012). 14 47 C.F.R. § 1.925(b)(3)(i). 15 47 C.F.R. § 1.925(b)(3)(ii). 16 Wireless Telecommunications Bureau, Public Safety And Homeland Security Bureau, And Office Of Engineering And Technology Provide Reminder Of January 1, 2013 Deadline For Transition To Narrowband Operations In The 150-174 MHz And 421-512 MHz Bands And Guidance For Submission Of Requests For Waiver And Other Matters, Public Notice, 26 FCC Rcd 9647 (2011) (Narrowbanding Waiver Guidance Notice). Federal Communications Commission DA 12-1299 3 the deadline; and (iii) the amount of time for which a waiver is requested is no more than is reasonably necessary to complete the narrowbanding process.”17 6. Based on the record before us, we conclude that the County has presented sufficient facts to meet the high standard for grant of the requested waiver. The record shows that the County has planned since 2009 to upgrade its VHF system.18 Given the level of interference NGEN entities currently experience due to spectral congestion,19 the 2011 decision to migrate to the NGEN system will increase the reliability of public safety communications in the region20 7. We recognize that narrowbanding a public safety radio system is not an insignificant endeavor since it requires not only retuning or replacing all of a systems radios but also scheduling this work to ensure that the system remains operational during the transition. Given the number of discrete agencies, call signs, and frequencies that are the subject of this waiver,21 we recognize that strict application of the narrowband deadline would require the County and the NGEN agencies to expend significant financial and administrative resources to narrowband their existing VHF/UHF wideband facilities by January 1, 2013, even though they plan migrate to the NGEN system no more than seven months later. We conclude that strict enforcement of the narrowbanding deadline under these circumstances would not serve the underlying purpose of the rule and that a waiver would be in the public interest. In reaching this conclusion, we place significant weight on the showing that the County has made with respect to the factors identified in our Narrowbanding Waiver Guidance Notice.22 8. The County and the NGEN agencies have shown diligence in planning for and implementing their transition to the 700 MHz band, which will enable them to decommission their existing wideband facilities and vacate their VHF/UHF frequencies.23 Further, the system is fully funded.24 Under these circumstances, we conclude that the eight-month waiver period requested by the County is no more than is reasonably necessary.25 9. Moreover, the record does not indicate that grant of the waiver will harm neighboring systems or impair interoperability during the waiver period.26 No party opined that grant of the waiver will have any negative impact on co-channel or adjacent channel VHF/UHF operations. 17 Id. at 9649. 18 Waiver Request at 1. 19 Waiver Request at 2. 20 Id. at 1, 3. 21 See Table 1, Waiver Request at 4-9. 22 Waiver Request at 1-3. 23 See Waiver Request at 1. See also Narrowbanding Waiver Guidance Notice, 26 FCC Rcd 9647, 9649. 24 Waiver Request at 2. 25 See Narrowbanding Waiver Guidance Notice, 26 FCC Rcd at 9649 (waiver applicant should show that “the amount of time for which a waiver is requested is no more than is reasonably necessary to complete the narrowbanding process”). 26 See id (waiver applicant should show “[p]lans to minimize the negative impact of extended wideband operations on co-channel and adjacent channel operations”). The County contends that grant will have no impact on neighboring jurisdictions. Waiver Request at 4. Federal Communications Commission DA 12-1299 4 IV. CONCLUSION 10. Based on the foregoing, we conclude that grant of the waiver is in the public interest. Accordingly, we grant Monterey County a waiver of the Commission’s January 1, 2013 VHF/UHF narrowbanding deadline until July 31, 2013. We list the entities and call signs that are subject to this waiver in a table attached to this order. V. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Section 1.925(b)(3) of the Commission’s rules, 47 C.F.R. § 1.925(b)(3), that the Request for Waiver filed by Monterey County, California IS GRANTED. 12. 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 and Licensing Division Public Safety and Homeland Security Bureau Federal Communications Commission DA 12-1299 5 Table 1: Licenses Subject to Waiver Licensee FRN Call Sign Frequency (MHz) Monterey, County of 0004120390 KA5117 154.725 154.785 154.815 155.190 155.490 155.535 155.595 155.730 155.910 155.970 156.015 158.805 158.850 158.910 159.090 159.180 159.210 Monterey, County of 0004120390 KAQ361 KDK98 KHQ52 KJN825 KKO50 KMA600 KMH974 KNIS913 WAG42 WHL62 WNUA302 WQNJ481 WQNJ482 WQNJ484 WQNL864 WQNL866 155.730 159.090 Monterey, County of 0004120390 KMA393 155.730 159.090 453.5875 458.5875 Monterey, County of 0004120390 KMA809 155.595 155.670 155.730 158.850 159.090 Monterey, County of 0004120390 KNIS912 155.730 Monterey, County of 0004120390 WBF95 155.595 155.730 158.910 159.090 Federal Communications Commission DA 12-1299 6 Licensee FRN Call Sign Frequency (MHz) Monterey, County of 0004120390 WNKV646 154.725 154.785 154.815 155.595 155.730 158.910 159.090 King, City of 0004514824 WBM79 154.755 155.730 156.015 158.805 159.090 Monterey, County of 0004120390 WNCH891 452.225457.225 Monterey, County of 0004120390 KIJ495 WCM521 WGP788 155.595 158.910 Monterey, County of 0004120390 WGC325 154.725 154.785 154.815 155.595 Monterey, County of 0004120390 KIB393 155.190 155.970 159.210 Monterey, County of 0004120390 WQBB989 153.965155.085 Monterey, County of - DRO 0004513792 WNMC399 153.965 Monterey, County of 0004120390 WPGT646 453.750458.750 Monterey, County of 0004120390 KVP571 155.535 Monterey, County of 0004120390 KVP572KVR941 155.490 155.535 Monterey, City of 0001541234 WSZ35 WSZ29 WSZ31 154.785 154.815 Monterey, City of 0001541234 WPBS270 154.860 Monterey, City of 0001541234 WPJZ458 155.160 155.235 155.280 Monterey, City of 0001541234 WPWY867 453.2750 453.4500 453.4750 458.2750 458.4500 458.4750 Monterey, County of 0004120390 WAH323 154.725 154.785 154.815 Federal Communications Commission DA 12-1299 7 Licensee FRN Call Sign Frequency (MHz) Monterey, County of 0004513735 WSZ34 154.785154.815 Monterey, County of - DRO 0004513792 WSZ32 154.785 154.815 Pacific Grove, City of 0004514766 WSZ33 154.785154.815 Monterey, County of 0004120390 WRA487 155.490 Monterey, County of 0004513735 KEC559 155.685 Monterey, County of 0004120390 WQND440 154.025155.775 Marina, City of 0004518023 WPWX347 155.775158.835 Marina, City of 0004518023 WZT829 153.785 Monterey, County of 0004120390 KN2803 156.015 Monterey, County of 0004120390 KRJ837 154.755 156.015 158.805 453.6375 458.6375 Monterey, County of 0004120390 WPYH272 154.755 156.015 158.805 Soledad, City of 0004514576 WQG805 154.755 155.805 156.015 King, City of 0004514824 KDZ478 155.100 156.015 158.805 Gonzales, City of 0004514865 WBM78 154.755 156.015 158.805 Monterey, County of 0004120390 WNPO492 153.920155.805 Monterey, County of 0004120390 KNJE473 460.1750 Monterey, County of 0004120390 WPIH733 460.1750 460.3000 460.3500 460.3750 460.5000 465.1750 Monterey, County of 0004120390 KCT69KF2934 155.835 Monterey, County of 0004120390 KBJ220 153.815 City of Carmel-by-the-Sea Police Department 0001541945 KMA766 154.710 155.430 City of Carmel-by-the-Sea Police Department 0001541945 KJN869 154.025 Monterey, County of 0004120390 WCT336 453.6750458.6750 Federal Communications Commission DA 12-1299 8 Licensee FRN Call Sign Frequency (MHz) Monterey, County of 0004120390 KCI996 KNEY537 WNHG584 154.175 154.370 Monterey, County of 0004120390 KQR351 154.175 154.370 156.105 Monterey, County of 0004120390 WQGS653 WQNK516 WQNK517 WQNL863 WQNL867 154.370 156.105 Monterey, County of 0004120390 KDZ443 154.175 154.205 154.370 156.105 Monterey, County of 0004120390 KE3779 153.890 154.175 154.205 154.235 154.370 154.430 154.995 156.105 156.240 Monterey, County of 0004120390 KML267 WNLC257 WQJZ626 154.370 Carmel Valley Fire Protection District 0004513818 KMJ275 154.175 154.370 156.195 Monterey Regional Fire 0004514212 KJD923 154.370156.105 Salinas Rural Fire Protection District 0004514212 KNGE591 KNIK410 154.370 156.105 Soledad, City of 0004514576 KWV456 154.370156.105 Gonzales, City of 0004514865 KWE532 154.370156.105 Monterey, County of 0004513735 KMA696 154.175 154.235 154.370 Monterey, County of 0004514683 KL3141 154.175 154.205 154.370 Monterey, County of 0004514683 KLG552KNBR747 154.205 154.370 154.995 Federal Communications Commission DA 12-1299 9 Licensee FRN Call Sign Frequency (MHz) Monterey, County of 0004514683 WRE365 154.175 154.205 154.370 154.995 Pacific Grove, City of 0004514766 KMM520 154.175154.370 Pacific Grove, City of 0004514766 KET302 155.100 King, City of 0004514824 KNBF423 154.370 Marina, City of 0004518023 KCT203 154.175154.370 Spreckels Volunteer Fire Company 0004537288 KNEC873 154.370 Monterey, County of 0004120390 WPRJ595 153.890 154.205 155.205 155.325 155.895 158.895 Monterey, County of 0004120390 KNIK580 153.890 Monterey, County of 0004120390 KEC844 154.175 Monterey, County of 0004120390 KNIK576 154.175 Monterey, County of 0004120390 WPAU487 154.175156.240 Monterey, County of 0004120390 WPMK447 153.785 155.580 156.000 158.775 Monterey, County of 0004120390 WPRH533 156.160 154.100 155.955 156.000 Monterey, County of 0004120390 KJ3939 153.860 155.865 158.745 Monterey, County of 0004120390 KLU418 155.205155.325 Monterey, County of 0004120390 KQU301 155.325 Monterey, County of 0004120390 KFX278 KJZ979 KTO75 WAG41 WCG530 WNHI627 155.865 158.745 Monterey, County of 0004120390 KLU411 151.160 151.340 154.085 155.955 Monterey, County of 0004120390 KGR280 KGR281 KGR283 151.160 Federal Communications Commission DA 12-1299 10 Licensee FRN Call Sign Frequency (MHz) Monterey, County of 0004120390 KJ7114 151.160151.340 Monterey, County of 0004120390 KNDJ454 151.160 453.000 458.000 Monterey, County of 0004120390 KD9322 150.995 156.060 156.195 Monterey, County of 0004120390 KEQ78 KMZ69 KND41 KNHW909 KXZ61 WAU778 WNFD393 WNFD394 WSY83 156.060 Monterey, County of 0004120390 KMK328 KMK329 KMK330 150.995 Monterey, County of 0004514683 KCI552 KLG554 KNBU647 WRE532 154.040 Monterey, County of 0004514683 WNUS414 156.165 Monterey, County of 0004120390 KMK354 158.880 Monterey, City of 0001541234 WPPB873 158.880 Monterey, County of 0004513735 KCP542 158.940 Greenfield, City of 0010985125 WRE271 155.895