Federal Communications Commission DA 15-659
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
UTAH, STATE OF
Request for Waiver of Section 90.529(b)(1) of the 
Commission’s Rules 
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FCC File No. 0006641049
ORDER
Adopted: June 04, 2015 Released:  June 04, 2015
By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:  
I. INTRODUCTION 
1. In this Order, we grant the State of Utah (Utah or State) a waiver of Section 
90.529(b)(1)
1
of the Commission’s rules to permit the acceptance of its late-filed interim “substantial 
service” showing for its license for 700 MHz state channels under call sign WPTZ788.
2
  Section 
90.529(b)(1) requires licensees on state channels to certify that they were providing or prepared to 
provide substantial service to one-third of their population or territory by June 13, 2014.        
II. BACKGROUND
2. Utah holds a license permitting it to operate on state channels in the 700 MHz band under 
call sign WPTZ788.
3
  The state channels consist of ninety-six channel pairs (12.5 kHz bandwidth) from 
the public safety narrowband segment of the 700 MHz band that are reserved for use by each state, 
territory, district or possession (state licensees).
4
  In order to ensure efficient use of the state channels, the 
Commission established a five-year interim and a ten-year final benchmark for state licensees to provide 
specified levels of “substantial service” within their statewide license areas.
5
3. Section 90.529(b)(1) of the Commission’s rules specifies June 13, 2014 as the due date 
for state licensees to file their interim five-year benchmark showing.
6
  By this date, state licensees were to 
                                                     
1
47 C.F.R. § 90.529(b)(1).  
2
See ULS File No. 0006641049 (Utah’s Schedule K Filing) and associated attachments.  
3
See call sign WPTZ788.
4
47 C.F.R. § 90.531(b)(5).  
5
“Substantial service” is defined as the construction and operation of facilities on state channels which is “sound, 
favorable, and substantially above a level of mediocre service which just might minimally warrant renewal.” See 47 
C.F.R. § 90.529(c).
6
47 C.F.R. § 90.529(b)(1).  See also Service Rules Governing Public Safety Narrowband Operations in the 769-
775/799-805 MHz Bands, WT Docket 96-86, Declaratory Ruling, 26 FCC Rcd 10895, 10896 ¶ 5 (2011) 
(Declaratory Ruling); Order, 27 FCC Rcd 15010 (PSHSB 2012) (conforming section 90.529(b) of the FCC’s rules 
regarding the substantial service deadlines for state-licensed 700 MHz public safety narrowband channels to 
comport with the deadlines specified in the Commission’s Declaratory Ruling).  
Federal Communications Commission DA 15-659
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certify that they were providing or prepared to provide substantial service to one-third of their population 
or territory.
7
  
4. Prior to the June 13, 2014 deadline, the Public Safety and Homeland Security Bureau 
(Bureau) issued a Public Notice providing state licensees guidance on how to demonstrate compliance 
with the interim substantial service benchmark.
8
  To facilitate staff review of substantial service 
showings, the Bureau provided examples of specific information to submit for review, including the type 
of public safety service being provided, a list of which state channels are used in the state system, and the 
percentage of population or territory served by the composite footprint of the state system.
9
  On January 
29, 2015, Utah filed its interim substantial service certification along with a request for waiver of the June 
13, 2014 deadline.
10
  In its request for waiver, Utah states it missed the filing deadline because it did not 
receive the Bureau’s reminder public notice due to a “total reorganization” of its public safety 
communications department.
11
    
5. Nonetheless, Utah indicates it deployed an “IP Series mobile data system” on its state 
channels consisting of forty-five sites and more than 300 vehicles from the Utah Highway Patrol and 
other state and local government agencies.
12
  Furthermore, Utah certifies that its IP-based mobile data 
network serves seventy-five percent of the State’s population and did so by October 2004, well before the 
interim substantial service deadline.
13
      
III. DISCUSSION
6. 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
  An 
applicant seeking a waiver faces a high hurdle and must plead with particularity the facts and 
circumstances that warrant a waiver.
16
  Based on the record before us, we find that the Utah has shown 
that its request should be granted under the first prong of the waiver standard.    
                                                     
7
See 47 C.F.R. § 90.529(b)(1).  For the ten-year benchmark, state licensees must certify that they are providing or 
are prepared to provide substantial service to two-thirds of their population or territory.  The due date for the ten-
year benchmark showing is June 13, 2019.  See 47 C.F.R. § 90.529(b)(2).
8
Public Safety and Homeland Security Bureau Provides Guidance to 700 MHz Narrowband State Licensees 
Regarding Interim Substantial Service Benchmark Showing Due on June 13, 2014, Public Notice, 29 FCC Rcd 3706 
(PSHSB 2014).
9
Id.  For purposes of reviewing interim benchmark showings by state licensees, the Bureau stated that it “will 
consider coverage on any state channel in a state licensee’s system sufficient to establish coverage for purposes of 
defining the licensee’s composite footprint.”  Id. at note 9.  
10
See attachment to Utah’s Schedule K Filing labeled “Request for Waiver” (Waiver Request).
11
Id.  
12
See attachment to Utah’s Schedule K Filing labeled “Supporting Documents” (Utah Certification).      
13
Id.
14
47 C.F.R. § 1.925(b)(3)(i).
15
47 C.F.R. § 1.925(b)(3)(ii).
16
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).
Federal Communications Commission DA 15-659
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7. The underlying purpose of the substantial service requirement is to ensure efficient use of 
state channels including service to “rural, remote and insular areas.”
17
To this end, Section 90.529(b)(1)
establishes a deadline for state licensees to certify that they are meeting the interim benchmark by 
providing or being prepared to provide substantial service to one third of their population or territory.
18
  A
state licensee is deemed “prepared” to provide substantial service if it certifies that a radio system has 
been approved and funded by the deadline date.
19
  The Commission’s rules also recognize that state 
licensees that do not meet the interim substantial service benchmark, e.g., because they have failed to 
construct or receive funding for any facilities by the deadline, will be subject to license cancelation or 
modification.
20
  As noted above, the Bureau provided state licensees guidance on how to demonstrate that 
they met the interim substantial service showing.
21
  
8. Consistent with the Commission’s rules and policies as well as the Bureau’s guidance, 
Commission staff confirmed that Utah satisfied the interim substantial service benchmark.  Prior to the 
June 13, 2014 deadline, Utah deployed an IP-based mobile data system on state channels serving seventy-
percent of its population.
22
  Thus, Utah needs a waiver solely because it failed to file its certification prior 
to the deadline.  
9. The Commission has previously explained that for certain Wireless Radio Services, 
including the Private Land Mobile Radio Service, the purpose of our construction notification 
requirements is to “verify whether licensees have in fact met their construction and coverage obligations, 
not to terminate licenses for legitimately operating facilities based on a failure to notify by the 
licensee…..”
23
  Furthermore, the Commission has advised any licensee missing a construction notification 
deadline that it may seek a waiver of the Commission’s rules but must certify that “it did meet the 
construction or coverage requirement and provide the date by which the licensee met that requirement.”
24
10. Consequently, under the circumstances presented, we find that granting Utah a waiver of 
Section 90.529(b)(1) would not frustrate the underlying purpose of the rule, because it satisfied the 
interim benchmark by providing substantial service to more than one-third of its population and it did so 
prior to the deadline.
25
  
11. Finally, we find that the public interest is served by granting Utah a waiver of Section 
90.529(b)(1) and allowing it to retain its license for the state channels.  The Commission established a 
geographic area licensing scheme for all state licensees so that each state or territory would have latitude 
                                                     
17
See Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local 
Public Safety Agency Communications Requirements Through the Year 2010, WT Docket No. 96-86, Third 
Memorandum Opinion and Order and Third Report and Order, 15 FCC Rcd 19844, 19869 ¶ 62 (2000) (Third 
R&O).  See also State of Iowa, Order, 29 FCC Rcd 11899, 11900 ¶ 7 (granting Iowa a conditional waiver of the 
substantial service requirement). 
18
See 47 C.F.R. § 90.529(b)(1).  
19
See 47 C.F.R. § 90.529(c).
20
See 47 C.F.R. §§ 90.529(d) and (e).  
21
See supra ¶ 4.
22
Utah Certification.  
23
See Biennial Regulatory Review – Amendment of Parts 0. 1, 13, 22, 24, 26, 27, 80, 87, 90, 95 and 101 of the 
Commission’s Rules to Facilitate the Development of the Universal Licensing System in the Wireless 
Telecommunications Services, Report and Order, 13 FCC Rcd 21027, 21076 ¶ 106 (1998).
24
SeeWireless Telecommunications Bureau Announces the Deployment of “Auto Term,” the Automated Feature in 
its Universal Licensing System that Identifies Unconstructed Stations Resulting in Automatic Termination of 
Licenses, Public Notice, 21 FCC Rcd 163, 167 (WTB 2006).
25
Waiver Request.
Federal Communications Commission DA 15-659
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to plan and develop shared wide-area networks under a substantially streamlined licensing process.
26
  
Absent a waiver of Section 90.529(b)(1), Utah would lose its geographic-area based state license.  
Consequently, we find it in the public interest to grant Utah’s request for a waiver of Section 90.529(b)(1) 
so that it can continue to deploy a wide-area network under a substantially streamlined licensing process 
thereby enhancing the safety of the Utah’s citizens and their property.  
IV. 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 of the Commission’s rules, 47 C.F.R. § 1.925, 
that the waiver request filed by the State of Utah IS GRANTED. We instruct staff to process the 
associated Schedule K application, ULS File number 0006641049, accordingly.
13. 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
Michael J. Wilhelm 
Deputy Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau
                                                     
26
Third R&O, 15 FCC Rcd at 19869 ¶ 57.