Federal Communications Commission Washington, D.C. 20554 October 29, 2013 DA 13-2089 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mr. Darrell Buchbinder General Counsel Port Authority of New York and New Jersey 225 Park Avenue South, 15 th Floor New York, New York 10003 Re: In the Matter of the Port Authority of New York and New Jersey Request for Waiver of Sections 90.157 of the Commission’s Rules Dear Mr. Buchbinder: On behalf of the Port Authority of New York and New Jersey (Port Authority), you filed a request for waiver 1 of Section 90.157 of the Commission’s rules, 2 seeking a one-year extension to construct the stations listed in the attachment to this letter (collectively, World Trade Center Stations). 3 For the reasons stated below, we grant, nunc pro tunc, the request for extension of waiver, until September 10, 2014. Accordingly, the Port Authority will have until no later than September 10, 2014, 1 Request for Extension of Waiver of Sections 90.157 of the Commssion’s [sic] Rules (dated Aug. 4, 2013) (Waiver Request). 2 47 C.F.R. §§ 90.157, 101.65(b). Pursuant to Sections 90.157, any station which has not been operated for one year or more is considered to have been permanently discontinued and is therefore subject to cancellation. Id. 3 In ten prior instances, the former Public Safety and Private Wireless Division of the Wireless Telecommunications Bureau, the former Public Safety and Critical Infrastructure Division of the Wireless Telecommunications Bureau, the Policy Division of the Public Safety Homeland Security Bureau or the Policy and Licensing Division of the Public Safety Homeland Security Bureau (collectively, Division) granted similar Port Authority requests for waiver. See Port Authority of New York and New Jersey, Order, 17 FCC Rcd 16784 (WTB PSPWD 2002) (2002 Order); Port Authority of New York and New Jersey, Order, 18 FCC Rcd 19243 (WTB PSPWD 2003); Letter dated Nov. 10, 2004 from Michael J. Wilhelm, Chief, Public Safety and Critical Infrastructure Division, to Jeffrey S. Green, General Counsel, Port Authority of New York and New Jersey; Letter dated Aug. 10, 2006 from Michael J. Wilhelm, Chief, Public Safety and Critical Infrastructure Division, to Darrell Buchbinder, General Counsel, Port Authority of New York and New Jersey; Port Authority of New York and New Jersey, Letter Order, 23 FCC Rcd 1753 (PSHSB PD 2008); Port Authority of New York and New Jersey, Letter Order, 23 FCC Rcd 16622 (PSHSB PD 2008); Port Authority of New York and New Jersey, Letter Order, 24 FCC Rcd 14426 (PSHSB PD 2009); Port Authority of New York and New Jersey, Letter Order, 25 FCC Rcd 17555 (PSHSB PD 10) (Letter dated Nov. 16, 2011, from Thomas J. Beers, Chief, Policy and Licensing Division, to Darrell Buchbinder, General Counsel, Port Authority of New York and New Jersey); Letter dated September 7, 2012, from Thomas J. Beers, Chief, Policy and Licensing Division, to Darrell Buchbinder, General Counsel, Port Authority of New York and New Jersey (2012 Letter). In each instance, the Division granted the Port Authority an additional one-year period to complete construction of its World Trade Center Stations. Page 2 to construct and return the World Trade Center Stations to operational status without forfeiting the licenses for permanent discontinuance of operation, pursuant to Section 90.157. 4 Consistent with the Commission’s rules, the waiver request demonstrates that unique and unusual circumstances caused the discontinuance of operations of the World Trade Center Stations, namely, the terrorist attacks of September 11, 2001. 5 Moreover, given the fact that the World Trade Center Stations will continue to serve an integral role in the extensive network of transportation, terminal, and commercial facilities throughout the New York metropolitan area, especially for public safety communications, we find that grant of the waiver request is in the public interest. 6 Additionally, the Port Authority demonstrates not only that it will continue to require use of the World Trade Center Stations, but also that it continues to proceed diligently and at an accelerated pace to reconstitute its destroyed radio communication facilities located at the World Trade Center. 7 The remaining facilities for which the instant waiver extension is necessary concern Part 90 radio stations that the Port Authority plans to restore to operation pending reconstruction of the World Trade Center site. 8 The Part 101 stations that were included in previous waiver requests are not part of the instant waiver request or any similar request. 9 On September 27, 2013, Zenji Nakazawa and Tracy Simmons from the Commission’s staff spoke with principals from the Port Authority and confirmed that radio authorizations for call signs WNEE495, WNEE496, WNEE497, WNEK376, WNEK377, and WPNI363 will be allowed to lapse and the frequencies will reenter the pool of available frequencies. In light of these showings, we believe that grant of the waiver request is warranted. In the 2002 Order, we concluded that a fixed waiver term was appropriate to “avoid any ambiguity concerning the status of the licenses and to allow relicensing of any spectrum that the Port Authority may later decide is not necessary for its future operations.” 10 In the 2012 Letter we again concluded that, in balancing the Port Authority’s continued need for additional time to bring facilities back into operation and the need of other public safety entities for spectrum, a further extension of waiver originally granted in the 2002 Order, until September 10, 2013, was in the public interest. 11 4 The grant of this Waiver Request does not relieve the Port Authority from applying for a renewal of license for any World Trade Center Station listed in the attachment prior to the expiration date of the license. See 47 C.F.R. § 1.949(a). Moreover, any renewal application submitted for a World Trade Center Station subject to grant of this Waiver Request will be held in pending status until the extended construction period granted herein is expired. See County of Beaver, Memorandum Opinion and Order, 18 FCC Rcd 18754, 18758 ¶ 13 (WTB PSPWD 2003) (renewal application for unconstructed station held in pending status until the extended construction period grant is expired). 5 See 47 C.F.R. § 1.925(b)(3)(ii). 6 Id. 7 Waiver Request at 2-4, 6. The Port Authority states that its efforts have involved the relocation of certain facilities to other sites, on either a temporary or permanent basis, the establishment of new facilities, and planning for the reconstruction of facilities at the World Trade Center site when a suitable structure becomes available. Id. at 2. The Port Authority also states that it projects to restore radio communication facilities following completion of several component structures of the World Trade Center Site. Id. at 3-4. 8 Waiver Request at 3-4. 9 Id. at 4. 10 2002 Order, 17 FCC Rcd at 16786 ¶ 6. 11 2012 Letter at 2. Page 3 Similarly, we conclude here that, in balancing the Port Authority’s continued need for additional time to bring facilities back into operation and the need of other public safety entities for spectrum, a further extension of waiver originally granted in the 2002 Order, until September 10, 2014, is in the public interest. Grant of the waiver request will enable the Port Authority to plan, construct and place into operation its stations and, at the same time, ensure that scarce spectrum is utilized to enhance public safety radio communications at the World Trade Center site. We therefore conclude that the public interest would be served by granting the Port Authority an extension of time to complete construction of the World Trade Center Stations listed in the Attachment. 12 Accordingly, pursuant to Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 303(r), and Sections 1.925, 1.946(e), and 90.157, of the Commission’s rules, 47 C.F.R. §§ 1.925, 1.946(e), and 90.157, we GRANT, nunc pro tunc, to the extent indicated herein, the Request for Extension of Waiver of Section 90.157 of the Commission’s rules, filed by the Port Authority of New York and New Jersey. 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. Sincerely, Thomas J. Beers Chief, Policy and Licensing Division Public Safety and Homeland Security Bureau 12 Our action herein does not preclude the Port Authority from requesting additional time should circumstances so warrant. Page 4 ATTACHMENT Table 1: Tabulation of Affected Radio Stations Authorized Under FCC Part 90 Radio Authorization Call Sign Expiration Date Radio Service Code Affected Location Number Geographic Coordinates N.Lat/W.Long (NAD83) Frequency (MHz) KGU999 1/14/2012 PW 1 40-42-43.4 074-00-47.5 150.99500 KGU998 1/14/2012 PW 1 40-42-43.4 074-00-47.5 151.11500 KVN780 10/23/2014 PW 2 40-42-39.4 074-00-43.5 470.56250 470.58750 KVN779 10/23/2014 PW 1 40-42-39.4 074-00-43.5 470.61250 WPDU923 11/18/2013 PW 1 40-42-41.4 074-00-43.5 453.65000