Federal Communications Commission DA 12-1812 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of PENNSYLVANIA STATE POLICE Request for Waiver of Section 90.209(b) of the Commission’s Rules ) ) ) ) ) ) WT Docket 99-87 ORDER Adopted: November 9, 2012 Released: November 9, 2012 By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. On January 25, 2012, the Pennsylvania State Police (PSP) submitted a request for waiver1 of the Commission’s VHF/UHF narrowbanding deadline, which requires private land mobile radio licenses 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 PSP seeks a one-year extension of the narrowbanding deadline until and including December 31, 2013.3 By this Order, we grant the request. II. BACKGROUND 2. PSP began its migration from a legacy VHF system to an 800 MHz system, known as the Pennsylvania Statewide Radio Network (PA-STARNET), in 2006 and completed a statewide upgrade to the 800 MHz system as its primary dispatch and communications system in 2010.4 According to PSP, however, site selection and acquisition issues, along with vendor 1 See Request for Waiver of Commission Rules, filed January 25, 2012, by the Pennsylvania State Police (Waiver Request). See also Update Regarding Request for Waiver of Commission Rules, filed August 17, 2012, by the Pennsylvania State Police (Update); 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 47 C.F.R. § 90.209(b)(5). Licensees in the T-Band (450-512 MHz) are exempt from the narrowbanding requirement, effective 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 Update at 1. PSP originally sought a two-year extension, but later amended its request to a one-year extension. 4 Id. at 2, 3. Federal Communications Commission DA 12-1812 2 hardware and software problems have prevented PSP from fully evaluating the performance of the new 800 MHz system by the Commission’s January 1, 2013 narrowbanding deadline.5 3. PSP states that its 800 MHz system is incomplete and experiences most outages in areas where rough terrain inhibits construction of fully hardened sites.6 PSP has added fully hardened 800 MHz sites over the past few years to increase interoperability, and 217 of such sites currently provide coverage to 85 percent of Pennsylvania’s total land area.7 PSP wishes to retain its legacy VHF system until the 800 MHz PA-STARNET system is fully tested.8 In 2011 PSP and the Pennsylvania Office of Public Radio Services (OPRS) evaluated the feasibility of maintaining the current VHF system on an interim basis.9 Because its existing VHF radio system consists of 2,500 mobile units, 1,200 portable units, 80 dispatch systems, and 109 VHF base stations,10 PSP and OPRS determined that it would be cost-prohibitive to completely narrowband the statewide VHF system, given that PSP plans to decommission this system once the 800 MHz PA-STARNET system is completed.11 Accordingly, PSP seeks a waiver to continue to use its existing VHF system beyond the Commission’s January 1, 2013 narrowbanding deadline, until its 800 MHz system is fully operable on December 31, 2013. 4. At the time PSP filed its Waiver Request, in January, 2012, PSP had already developed the fundamental system requirements for PA-STARNET, which consists of 248 high profile radio tower sites and 739 microcell sites, with 44 more sites in the design stage.12 Since then, PSP has improved its VHF system by purchasing some narrowband-compliant mobile radios and dispatch equipment, and has secured narrowband emission designators for its licenses. It estimates that these improvements to the VHF system will be complete by the end of 2012.13 PSP also included funding for narrowband-compliant equipment in its budget for Fiscal Year 2012-2013.14 5. PSP does not anticipate any negative effects on other licensees if its waiver request is granted.15 PSP argues that, absent the challenges it faced in implementing a complex, statewide 800 MHz system, it would not have required the requested waiver.16 PSP also argues that denying the waiver would punish a licensee that has made good-faith efforts to accomplish the Commission’s objectives.17 Lastly, PSP claims that denial of a waiver would be detrimental to its State Troopers and Pennsylvania citizens as a whole.18 5 Id. at 3. 6 Id. at 4. 7 Id. at 4. 8 Id. at 3-5. 9 Id. at 5. 10 Id. at 1. 11 Waiver Request at 2, 5. 12 Id. at 3. 13 Id. at 5; Update at 1. 14 Waiver Request at 6. 15 Id. at 7. 16 Id. at 9. 17 Id. 18 Id. Federal Communications Commission DA 12-1812 3 6. On January 27, 2012, the Public Safety and Homeland Security Bureau issued a Public Notice seeking comment on the Waiver Request.19 No party filed comments in support or opposition. III. DISCUSSION 7. PSP seeks relief pursuant to Section 1.925(b) of the Commission’s rules, which provides that, in order 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;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 8. The Wireless Telecommunications Bureau, the Public Safety and Homeland Security Bureau, and the Office of Engineering and Technology stated in the jointly issued Narrowbanding Waiver Guidance Notice, that “requests for waivers of the deadline (under § 1.925) will be subject to a high level of scrutiny.”22 The notice suggests factors for licensees to include in a request for a waiver.23 In addressing those factors, the notice specifically recommends that licensees explain how: (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 9. Based on the facts before us, we find that PSP warrants waiver relief because it has demonstrated that the underlying purpose of the narrowbanding rule—promoting efficient spectrum use—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.27 In reaching this decision, we find that PSP has exercised due diligence and shown good faith in its effort to migrate from its VHF system to the 800 MHz PA-STARNET system.25 We also recognize that this transition was hindered by hardware and software issues with the 800 MHz system and that geographic constraints have hindered its overall migration efforts, thus justifying a temporary extension of the narrowbanding deadline.26 19 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. 430 (PSHSB 2012). 20 47 C.F.R. § 1.925(b)(3)(i). 21 § 1.925(b)(3)(ii). 22 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, 9648 (PSHSB, OET, WTB 2011) (Reminder and Guidance Notice). 23 Id. at 9649. 24 Id. 27 See 47 C.F.R. § 1.925(b)(3)(i). 25 Waiver Request at 3. 26 Id. at 4. Federal Communications Commission DA 12-1812 4 10. We also find that grant of the waiver is in the public interest, as it will provide PSP with a reasonable amount of time to complete its ongoing narrowbanding process via migration to the 800 MHz PA-STARNET system, while allowing the existing VHF system to maintain interoperability without adversely affecting other licensees.27 We also find that PSP’s request for an extension of the deadline by one year is warranted because it is no longer than is reasonably necessary to complete the transition to its 800 MHz system.28 IV. CONCLUSION 11. Based on the foregoing, we conclude that granting the requested waiver is in the public interest. Accordingly, we grant PSP a waiver of the Commission’s January 1, 2013 VHF/UHF narrowbanding deadline, until and including December 31, 2013, for the call signs set forth in Appendix A. V. ORDERING CLAUSES 12. 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)(i) of the Commission’s rules, 47 C.F.R. § 1.925(b)(3)(i), that the Request for Waiver of Commission Rules filed by the Pennsylvania State Police IS GRANTED. 13. 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 and 0.392. FEDERAL COMMUNICATIONS COMMISSION Zenji Nakazawa Deputy Chief, Policy and Licensing Division Public Safety and Homeland Security Bureau 27 Waiver Request at 7. 28 Update at 1. Federal Communications Commission DA 12-1812 5 Appendix A: List of Affected Call Signs Pennsylvania State Police VHF Call Signs KAP963 KXH325 KXH355 KXH385 WPAR858 WYF420 KB46156 KXH326 KXH356 KXH386 WPDI891 WYF421 KDN501 KXH328 KXH361 KXH387 WPDM594 WYF422 KLE766 KXH329 KXH362 KXH388 WPDX281 WYF423 KM2926 KXH330 KXH363 KXH389 WPFA965 WYF424 KN6259 KXH331 KXH364 KXH390 WPGX918 WYF426 KN9796 KXH332 KXH365 KXM889 WPJP607 WYF427 KNNG311 KXH333 KXH366 KXM890 WPJP609 WYF428 KNNG312 KXH334 KXH367 KXM891 WPKU625 KNNG313 KXH335 KXH368 KXM893 WPTB419 KNNG314 KXH336 KXH370 KXO901 WQGL628 KSK964 KXH337 KXH371 KXO903 WQGL629 KSO688 KXH338 KXH372 KXO906 WQGL632 KSO710 KXH339 KXH373 KXO915 WQGL634 KSO727 KXH340 KXH375 KXO921 WQGL635 KXH312 KXH342 KXH376 KXO922 WQGL636 KXH315 KXH343 KXH377 KXO932 WQGL638 KXH316 KXH344 KXH378 KXU261 WQGN636 KXH317 KXH345 KXH379 KZC557 WQHA456 KXH318 KXH346 KXH380 KZC686 WQHX837 KXH319 KXH348 KXH381 WDQ898 WQIE564 KXH320 KXH351 KXH382 WNWP460 WQJS621 KXH321 KXH352 KXH383 WNYZ968 WQKR950 KXH322 KXH353 KXH384 WNZN651 WYE866