Federal Communications Commission DA 12-1357 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of OREGON, STATE OF Request for Waiver of Section 90.209(b) of the Commission’s Rules ) ) ) ) ) ) WT Docket 99-87 ORDER Adopted: August 20, 2012 Released: August 20, 2012 By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. The State of Oregon (Oregon or the State) submitted a request for waiver1 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 bands2 to operate using channel bandwidth of no more than 12.5 kHz or equivalent efficiency by January 1, 2013.3 Specifically, Oregon seeks a ten-month extension of the deadline until November 1, 2013.4 By this Order, we grant the request. II. BACKGROUND 2. Oregon operates a statewide VHF radio system used by the Oregon State Police (OSP) and Oregon Department of Transportation (ODOT). It also has a limited number of UHF radio systems and UHF links to VHF radio sites.5 Oregon began planning its narrowbanding transition in 2005 when the state legislature passed legislation creating the Oregon Wireless Interoperability Network (OWIN).6 The State established OWIN to consolidate and replace four 1 See Request for Waiver of Commission Rules, filed May 8, 2012, by the State of Oregon (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, 19 FCC Rcd 25045 (2004). 2 A suspension on applications in the T-Band (450-512 MHz) has been in effect since April 26, 2012. See Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau Suspend the Acceptance and Processing of Certain Part 22 and 90 Applications for 470-512 MHz (T-Band) Spectrum, Public Notice, 27 FCC Rcd 4218 (WTB/PSHSB 2012). 3 47 C.F.R § 90.209(b). 4 Waiver Request at 1. 5 See Waiver Request at 1. See Appendix A for a list of call signs for which Oregon is seeking a waiver. 6 See Waiver Request at 1. Federal Communications Commission DA 12-1357 2 existing state agencies’ radio systems into a single trunked radio system operating in the 700 MHz band by the January 1, 2013 narrowbanding deadline.7 However, in 2011 the governor restructured the plan in response to declining state revenue.8 Consequently, the Oregon state legislature limited the scope and funding of the project to narrowband the OSP and ODOT VHF systems, in addition to other upgrades, while continuing to slowly build out the state’s 700 MHz digital trunked system.9 3. The ODOT and OSP radio systems include 180 sites with 250 repeaters and “more than 3000 users on the radio system, as well as radios in the district and field offices.”10 Oregon notes that the majority of the existing infrastructure and subscriber equipment is not narrowband-capable and therefore must be replaced.11 To carry out the upgrades, Oregon issued a Request for Proposals on December 4, 2009,12 and entered into a contract with Harris Corporation in December 2010, for all necessary equipment.13 In June 2011, after Oregon began installing the 192 VHF repeaters it received from Harris Corporation, the State encountered technical difficulty that caused it to lose approximately two months of installation time.14 Although Oregon had installed eighty-two repeaters as of mid-March 2012, inclement weather conditions rendered several sites inaccessible for much of the year, causing further delay.15 4. In October 2011, the State began to install new narrowband-capable, multiband mobile radios in vehicles, issue new portable radios and train users.16 But, on January 19, 2012, the State halted these efforts because of technical problems.17 Harris Corporation corrected the problems with new software, and the State completed radio redeployment by June 2012.18 Oregon states that it can complete its upgrades, including field testing and deployment of narrowband-compliant equipment by November 1, 2013.19 7 See id. at 2. This plan included replacing the State’s UHF and VHF radio systems, thus eliminating the need to upgrade the systems to comply with the narrowbanding requirement. See id. 8 See letter dated June 21, 2012 from Thomas J. Lauer, manager of the Major Projects Branch to Federal Communications Commission, at 1 (Lauer Letter). See also Waiver Request at 2. The State plans to continue to build out its 700 MHz system as funding is appropriated. See Lauer Letter at 1. 9 See Lauer Letter at 2; Waiver Request at 2. The other upgrades that are part of the project include upgrading the State’s analog microwave network to digital, improving communications facilities, and constructing approximately 45 Project 25 700 MHz digital trunked radio systems to cover 70 percent of Oregon’s population. See Waiver Request at 2, 5. Oregon no longer plans to relinquish its VHF/UHF frequencies because the currently planned 700 MHz system will not cover the entire state. See id. at 6; see also Lauer Letter at 1. 10 See Waiver Request at 4. 11 Id. 12 See id. at 3, 5, Ex. 5. 13 Id. 14 See id. at 3. 15 See id. 16 Id. 17 Id. 18 See Lauer Letter at 2. 19 See Waiver Request at 6. Federal Communications Commission DA 12-1357 3 5. On May 10, 2012, the Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice seeking comment on the Waiver Request.20 No party filed comments in support or opposition. III. DISCUSSION 6. Oregon 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;21 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.22 7. Applying this standard to narrowbanding, we 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.23 We have also provided guidance on the factors that licensees should address in their waiver requests. Specifically, we stated that, when 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 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.”24 8. Based on the record before us, we find that Oregon warrants waiver relief because it has demonstrated that it faces unique or unusual factual circumstances such that application of the narrowbanding deadline would be inequitable, unduly burdensome, or contrary to the public interest. The record shows that Oregon has exercised due diligence and good faith in its efforts to timely comply with the narrowbanding requirements since 2005.25 The record also shows that Oregon had to abandon its original plan – by which the State was to migrate to a 700 MHz digital trunked system and relinquish its UHF and VHF frequencies, thus eliminating the need to upgrade the VHF/UHF systems – because of the State’s budgetary problems.26 In addition, the record shows that, notwithstanding its best efforts to comply with the narrowbanding deadline, Oregon encountered several technical and weather-related problems that substantially affected its ability to complete its revised plan to upgrade its aging UHF/VHF radio systems on 20 See Public Safety and Homeland Security Bureau Seeks Comment on Requests for Waiver of the January 1, 2013 VHF-UHF Narrowbanding Deadline, Public Notice, 27 FCC Rcd. 5101 (PSHSB 2012). 21 47 C.F.R. § 1.925(b)(3)(i). 22 47 C.F.R. § 1.925(b)(3)(ii). 23 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). 24 Id. at 9649. 25 See Waiver Request at 1-2. 26 See id. at 1-3. Federal Communications Commission DA 12-1357 4 schedule.27 We also find that waiver relief in this particular instance serves the public interest because it will provide the State a reasonable and sufficient amount of time necessary to complete the narrowbanding process; specifically, an additional ten months beyond the January 1, 2013 deadline. In reaching this public interest determination, we find persuasive Oregon’s assurance that it does not expect its narrowbanding schedule to affect neighboring systems, and that it will address any issues that do arise on a case-by-case basis.28 IV. CONCLUSION 9. Based on the foregoing, we conclude that grant of the waiver is in the public interest. Accordingly, we grant Oregon a waiver of the Commission’s January 1, 2013 VHF/UHF narrowbanding deadline, until November 1, 2013, for the call signs set forth in Appendix A. V. ORDERING CLAUSES 10. 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 the State of Oregon IS GRANTED. 11. We take this action 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 Zenji Nakazawa Deputy Chief, Policy and Licensing Division Public Safety and Homeland Security Bureau 27 See id. at 3-4. 28 See id. at 5. Federal Communications Commission DA 12-1357 5 Appendix A: List of Affected Call Signs Oregon State Police VHF Call Signs KA35549 KA77889 KA91086 KA96526 KB65128 KB79438 KFF659 KFF670 KJ9235 KJ9251 KNBN597 KNIC783 KNIC784 KNIC785 KNIJ820 KNIS797 KNIS798 KNIS799 KNIS801 KNIS802 KNIS805 KNIS806 KNIS906 KNIY683 KNIY684 KNIY685 KNNI941 KOL239 KQV430 WDF841 WDF842 WFR330 WGC604 WGC647 WNAQ586 WNAQ587 WNAQ588 WNAQ838 WNAQ839 WNAQ840 WNAQ841 WNAQ842 WNAQ845 WNAQ846 WNAQ847 WNAQ848 WNAQ849 WNAQ850 WNAQ851 WNAQ852 WNAU894 WNBC294 WNBL358 WNCQ867 WNDM948 WNEB887 WNFK355 WNFK876 WNFK877 WNFK878 WNFK879 WNFK880 WNFU411 WNFU419 WNFU423 WNID346 WNID350 WNID359 WNID363 WNIG952 WNJN920 WNK881 WNKH974 WNKW507 WNKX636 WNLA339 WNLB626 WNLB627 WNLB628 WNLH372 WNLH373 WNLN398 WNLP416 WNLS755 WNLS756 WNLX648 WNMU912 WNNG200 WNQH601 WNQH955 WNQH956 WNQH962 WNQJ379 WNQM529 WNQM905 WNQW392 WNXD389 WNXX334 WNYF874 WNYF878 WNYY221 WNZE909 WNZN460 WNZQ829 WNZW590 WPBW866 WPCB718 WPCD655 WPCG426 WPES398 WPES434 WPGZ916 WPHW992 WPHZ210 WPHZ476 WPIC236 WPIC670 WPIC970 WPIG468 WPIP294 WPIZ335 WPKA928 WPKF805 WPKG503 WPKJ419 WPKP566 WPYD870 WQDD261 WQEU699 WQEV595 WQEV658 WQEV664 WQEV665 WQEV766 WQEV794 WQFK762 WQFK968 WQHA415 WQIB432 WQJG401 WQJN250 WQLM462 WQMA926 WQNA876 WQOR253 WQOX755 WQOX981 WQU456 Federal Communications Commission DA 12-1357 6 WRG378 WYW974 WZX451 Oregon State Police UHF Call Signs KA77889 KB24483 KB43910 KB63508 KB66105 KB66106 KB66107 KB66108 KB94125 KD22720 KD23461 KR3287 WNKH974 WNKR365 WNLH373 WNMJ350 WNMU912 WPEZ327 WPHZ210 WQEV794 Oregon Department of Transportation VHF Call Signs KBM KC4319 KD27432 KNEN657 KOG981 KVF862 WHG913 WHG914 WNFE469 WNFE470 WNFN838 WNFQ363 WNFZ722 WNGP500 WNGP501 WNGP502 WNGP503 WNHE447 WNHE496 WNHT289 WNIC471 WNIF413 WNJC994 WNLF749 WNLF753 WNMJ737 WNMM405 WNPH920 WNXQ733 WPOJ274 WPEN729 WPEX803 WPHA283 WPIC742 WPJG822 WPJL218 WPJP226 WPJP227 WPKB709 WPKF587 WPKH249 WPLG712 WPLW670 WPMH560 WPPD905 WPPE571 WPPF433 WPQB984 WPQD846 WPQY807 WPSY290 WPTC998 WPTE878 WPTP997 WPTS564 WPUS740 WPVA881 WPVI702 WPVM219 WPVM656 WPVN948 WQAH869 WQAI427 WQAR649 WQAU334 WQBK392 WQDF230 WQEB436 WQEQ650 WQFA694 WQFF474 WQFH628 WQFS313 WQGB859 WQGD288 WQIB262 WQJI948 WQKR363 WQLF580 WRD615 Oregon Department of Transportation UHF Call Signs KB74700 KB80275 KB80276 KB86683 KD50990 WNHT289 WPCR930 WPEQ272 WPGY302 WPKQ444 WPPE571 WPQD961 WPRV803 WPSF961 WPUT390 WPVB925 WPWE576 WPZK773 WQAJ686 WQBP279 WQCT563 WQLP283