Federal Communications Commission	DA 19-406


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554


In the Matter of

BIT/State Radio Communications Engineering’s Requests for Extension/Waiver of Time to Construct
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File Nos. 0003081467 et al.

ORDER OF MODIFICATION

Adopted:  May 24, 2019	Released:  May 24, 2019

By the Chief, Mobility Division, Wireless Telecommunications Bureau:

I.  INTRODUCTION
1. In this Order of Modification (Order), the Mobility Division (Division) of the Wireless Telecommunications Bureau (Bureau) modifies certain Part 22 VHF/UHF paging licenses operated by BIT/State Radio Communications Engineering (South Dakota or the State) In the Commission’s Universal Licensing System (ULS), South Dakota’s paging licenses are listed under “BIT/State Radio Communications Engineering” which is a reference to the Bureau of Information & Telecommunications of the State of South Dakota.
 to facilitate implementation of the South Dakota Interagency Communications System (SDICS or the System) – a statewide, interoperable, digital trunked public safety radio system.  This action will enable South Dakota to keep portions of the license areas where it was operating as of the applicable construction deadlines and maintain the functionality of its statewide public safety network.
II. BACKGROUND
2. SDICS supports a variety of public safety operations, including Police and Fire Departments, as well as all ambulance/EMS and emergency care medical facilities through the State of South Dakota Department of Health. See Amended Statement in Support of Substantial Service/Request for Extension of Time to Construct by BIT/State Radio Communications Engineering, State of South Dakota, Bureau of Information & Tel (filed, Oct. 30, 2007) (2007 Extension/Waiver Request) at 1; Statement in Support of Substantial Service/Request for Extension of Time to Construct by BIT/State Radio Communications Engineering (filed, May 11, 2009) (2009 Extension/Waiver Request) at 1.
  The radios on the System allow for inter-agency interoperability, as well as enabling individual agencies to maintain private communications. 2007 Extension/Waiver Request at 2.
  In 2007 and 2009, facing the expiration of the license terms for some of its Part 22 VHF/UHF Paging licenses, South Dakota sought a determination from the Commission that it met the Commission’s substantial service requirement or, alternatively, requested that the Commission waive and/or extend the construction deadlines. Id. at 1.
  
3. Order and Proposed Order of Modification (Order and POM). BIT/State Radio Communications Engineering’s Requests for Extension/Waiver of Time to Construct, Order and Proposed Order of Modification, DA 19-41, 2019 WL 458018 (F.C.C. Feb. 4, 2019), Erratum Order (rel. Feb. 19, 2019) (Order and POM).
  On February 4, 2019, the Division issued an Order and Proposed Order of Modification pursuant to Section 316 of the Communications Act, proposing in the public interest to modify certain licenses to permit the State to keep the areas it had constructed by the applicable construction deadlines, rather than terminate the licenses in their entirety. Id. at 2. 
  The Order and POM also dismissed the State’s construction notifications that failed to show construction, but granted a partial waiver of the construction requirements for certain authorizations. Id. at 1-2.  Section 316(a)(1) of the Communications Act authorizes the Commission to modify a station license if, in its judgment, “such action will promote the public interest, convenience, and necessity, or the provisions of this chapter.”
  The Division found that the proposed modification of South Dakota’s authorizations would be consistent with the Commission’s “fundamental obligation to promote safety of life and property through the use of wire and radio communications.” Id. at 8, citing 47 U.S.C. § 151.  
   
4. In the Order and POM, the Division identified the following Part 22 Paging licenses for modification: WPVF200, WPVF202, WPVF203, WPVF204, WPVF205, WPVF207, WPVF208, WPVG844, WPVG846, WPVG847, WPVG848, WPVG992, WQAD635, WQAD643, WQAD650, WQAD652, WQAD653, WQAD654, WQAD656, WQAD657, and WQAD659. Id. at 8, para. 18.
  In doing so, the Division recognized South Dakota’s legitimate interest in continuing to operate its statewide public safety network.  The Division also granted limited extensions of time (until September 30, 2013, and November 30, 2014) with respect to three authorizations (WQAD650, WQAD653, and WQAD672). Id. at 10, para. 27.
  
5. Finally, the Division noted that pursuant to Section 316(a)(1) of the Act, no proposed order of modification becomes final until the license holder has been provided at least 30 days to protest the proposed order. The Division prescribed a 30-day period to file protests of the proposed license modifications, commencing on February 4, 2019 (the public release date of the Order and POM).  Id. at 9, para. 23.  
  The Period for filing protests to the Order and POM closed on March 6, 2019, and no party protested any of the proposed modifications. Although South Dakota filed a Petition for Reconsideration of the Order and POM on March 6, 2019, its petition does not challenge any of the 21 licenses modified by today’s Order.  Rather, it seeks restoration of 17 different licenses (Call Signs WPVG879, WPVG880, WPVG881, WPVG882, WPVG988, WPVH584, WPVH586, WPVF209, WPVF212, WPVF213, WPVF214, WQAD658, WQAD664, WQAD674, WQAD675, WQAD676, WQAD677) that the Division found had automatically terminated, as a matter of law, by their respective construction deadlines because the State failed to show any construction for these authorizations.  See Petition for Reconsideration by BIT/State Radio Communications Engineering Radio Service CP, DA 19-41 (filed Mar. 6, 2019).  This Order does not address the terminated authorizations or the State’s arguments to reinstate them.    
  Accordingly, South Dakota is deemed to have consented to the proposed modifications. See 47 CFR § 1.87(h).

III. DISCUSSION
6. The authority to modify licenses under Section 316(a)(1) is well established and courts have recognized the Commission’s “broad power” to do so, explaining that the Commission “need only find that the proposed modification serves the public interest, convenience and necessity.” California Metro Mobile Communications v. FCC, 365 F.3d 38, 45 (D.C. Cir. 2004); see also Establishing Rules and Policies for the Use of Spectrum for Mobile Satellite Services in the Upper and Lower L-Band, Report and Order, IB Docket 96-132, FCC 02-24, 17 FCC Rcd 2704, 2714, ¶ 25 (2002) (citing Rainbow Broadcasting Co. v. FCC, 949 F.2d 405 (D.C. Cir. 1991) (“the Commission is afforded significant latitude when it exercises its Section 316 authority”) (subsequent history omitted).  
  In light of the overriding public interest in maintaining the functionality of South Dakota’s public safety network, we find it in the public interest to modify South Dakota’s authorizations consistent with the Proposed Order of Modification.  Accordingly, we hereby modify 21 of South Dakota’s paging licenses (WPVF200, WPVF202, WPVF203, WPVF204, WPVF205, WPVF207, WPVF208, WPVG844, WPVG846, WPVG847, WPVG848, WPVG992, WQAD635, WQAD643, WQAD650, WQAD652, WQAD653, WQAD654, WQAD656, WQAD657, and WQAD659) as follows: 
· For each license listed above, we authorize South Dakota to retain the areas in which it is using its Part 22 Paging frequencies as described herein, with the modified boundaries of the license determined by the formula in the Part 22 rules. 47 CFR § 22.567(d).
  The remainder of these specific licensed market areas are hereby terminated and, as such, revert to the Commission.    
· Section 22.567(d) of our rules describes the formula to be used in determining a VHF channel transmitter’s interfering contour (the area beyond which signals from the transmitter are deemed not to be causing interference to another transmitter).  Using the technical parameters of South Dakota’s operations as of the respective construction deadlines applicable to each license, we have calculated an interfering contour using 22.567(d), The technical criteria found in Section 22.567(d) are specific to paired frequencies identified in Section 22.561.  Accordingly, the interfering contours in this case have been calculated using the technical criteria associated with the applicable licensed channel block.
 and modified the license boundary for each license at issue based on the interfering contour.  These modified license boundaries are shown in the Appendix attached hereto.  
· The interfering contour as calculated above defines the modified license boundary for each call sign listed, except where that contour reaches beyond the geographic market boundary.  In those cases, the modified license area ends at the market boundary.  
7. Pursuant to the Order and Proposed Order of Modification, we also require South Dakota, as a condition of our modification of these licenses and the technical waivers that were necessary to bring South Dakota’s operations into compliance with our rules, See Order and POM at 6-7, paras. 14-15.
 to notify the Division by August 5, 2019 (within six months of the effective date of the Order and POM) that it has obtained concurrences from neighboring licensees that South Dakota’s modified licenses do not harmfully interfere with their operations. Order and POM at 7, para. 15.
  Alternatively, South Dakota may forgo the waiver, and either implement an alternative solution that complies with our current rules or cease operation.
8. Any licenses that do not comply with the Part 22 rules or with the waiver conditions set forth in the Order and POM by August 5, 2019, will automatically terminate as of that date.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) and 316(a) of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 316(a) and Section 1.87 of the Commission’s rules, 47 CFR § 1.87, the licenses listed in the Appendix, ARE MODIFIED as specified in Section III of this Order of Modification, effective upon release of this Order.
10. IT IS FURTHER ORDERED that, pursuant to Section 316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C. § 316(a)(1), the Wireless Telecommunications Bureau SHALL SEND this Order of Modification by certified mail, return receipt requested, to the State of South Dakota.
11. These actions are taken under delegated authority pursuant to sections 0.131 and 0.331 of the Commission’s rules, 47 CFR §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION




						Roger S. Noel												Chief, Mobility Division
						Wireless Telecommunications Bureau
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APPENDIX

Call Signs

WPVF200, WPVF202, WPVF203, WPVF204, WPVF205, WPVF207, WPVF208, WPVG844, WPVG846, WPVG847, WPVG848, WPVG992, WQAD635, WQAD643, WQAD650, WQAD652, WQAD653, WQAD654, WQAD656, WQAD657, and WQAD659.

Modified License Areas

The modified boundaries of each license area are defined by the interference contour(s) of its base transmitter(s) as calculated pursuant to Section 22.567(d).  The following maps depicting the modified license areas of each call sign were derived using technical information provided by the State of South Dakota. See Order and POM at p. 21, n. 61.  
 The tables below detail the base transmitter information provided by South Dakota, including location(s) of the base transmitter(s) being used for the call sign, effective radiated power (ERP), antenna height, and height above average terrain (HAAT) data. The tables also specify the distances from each base transmitter to its interfering contour along the eight radials that were calculated using South Dakota’s technical data.

Contour Information for Call Signs subject to Section 22.567(d)



Call Sign
Location
Latitude, Longitude
Elevation(m)
Antenna Height(m)
HAAT(m)
ERP (W)
WQAD635
Corson
N 45 44 43.26, W 100 48 46.91
627.2
50.9
82.9
200
WQAD643
Corson
N 45 44 43.26, W 100 48 46.91
627.2
50.9
82.9
200
WQAD650
McPherson
N 45-43-40.04 N, W 99 05 47.40
606.6
56.7
109.1
160
WQAD652
Herreid
N 45 49 26.33, W 100 01 46.13
529.1
23.5
6.1
270
WQAD653
McPherson
N 45-43-40.04 N, W 99 05 47.40
606.6
56.7
109.1
160
WQAD654
Herreid
N 45 49 26.33, W 100 01 46.13
529.1
23.5
6.1
270
WQAD656
Herreid
N 45 49 26.33, W 100 01 46.13
529.1
23.5
6.1
270
WQAD657
Herreid
N 45 49 26.33, W 100 01 46.13
529.1
23.5
6.1
270
WQAD659
Herreid
N 45 49 26.33, W 100 01 46.13
529.1
23.5
6.1
270
WPVG844
N Minnehaha
N 43 31 56.5, W 96 59 20.11
493.4
25.9
49.1
100
Orient Hills
N 44 52 27.44, W 99 16 4.51
612.0
21.3
82.9
145
Winner 
N 43 17 46.14, W 99 52 5.02
694.5
25.0
50.9
250
WPVG846
Sioux Falls
N 43 31 49.91, W 96 45 27.25
455.2
18.3
29.9
41
WPVG847
Sioux Falls
N 43 31 49.91, W 96 45 27.25
455.2
18.3
29.9
41
WPVG848
Watertown
N 44 50 52.15, W 97 6 18.72
550.1
23.8
10.1
250
WPVG992
Turkey Ridge
N 43 14 35.88, W 97 22 39.00
520.4
28.3
103.1
170
WPVF200
Sioux Falls
N 43 31 49.91, W 96 45 27.25
455.2
18.3
29.9
41
WPVF202
Yanktown
N 42 50 31.81, W 97 29 4.24
416.3
62.5
74.1
160
Watertown
N 44 50 52.15, W 97 6 18.72
550.1
23.8
10.1
250
WPVF203
Winner 
N 43 17 46.14, W 99 52 5.02
694.5
25.0
50.9
250
WPVF204
Brookings
N 44 20 49.78, W 96 43 46.63
513.9
64.0
72.0
150
Radar Hill
N 43 04 49.04, W 98 28 59.09
565.8
32.0
135.9
60
WPVF205
Yanktown
N 42 50 31.81, W 97 29 4.24
416.3
62.5
74.1
160
Watertown
N 44 50 52.15, W 97 6 18.72
550.1
23.8
10.1
250
WPVF207
Brookings
N 44 20 49.78, W 96 43 46.63
513.9
64.0
72.0
150
Sioux Falls 
N 43 31 49.91, W 96 45 27.25
455.2
18.3
29.9
41
WPVF208
Beresford
N 43 03 01.48, W 96 47 02.26
460
85.3
135
75



Transmitter Radial Values – per Section 22.567(d)
Location
Azimuth
HAAT (m)
ERP (W)
Distance (km)
Corson
0
59.6
200
62.6

45
66.8
200
64.3

90
95.6
200
70.1

135
123.0
200
74.5

180
136.0
200
76.3

225
95.4
200
70.1

270
48.8
200
59.7

315
40.9
200
57.2
McPherson
0
64.6
160
61.2

45
102.7
160
68.4

90
157.4
160
80.2

135
156.0
160
80.0

180
115.4
160
70.3

225
74.9
160
63.4

270
72.1
160
62.8

315
71.6
160
62.7
Herreid
0
             3.4
270
56.2

45
-23.0
270
56.2

90
-12.6
270
56.2

135
6.4
270
56.2

180
33.8
270
57.8

225
18.1
270
56.2

270
27.9
270
56.2

315
25.2
270
56.2
N Minnehaha
0
27.7
100
46.5

45
42.4
100
50.6

90
60.1
100
55.0

135
59.5
100
54.9

180
70.9
100
57.2

225
82.1
100
59.3

270
61.4
100
55.3

315
30.9
100
46.9
Orient Hills
0
68.6
145
60.9

45
54.9
145
57.7

90
96.0
145
66.0

135
104.3
145
67.4

180
98.5
145
66.4

225
80.9
145
63.4

270
48.2
145
56.0

315
57.2
145
58.3
Winner
0
117.3
250
76.8

45
97.2
250
73.4

90
48.6
250
62.2

135
18.0
250
55.4

180
4.9
250
55.4

225
5.2
250
55.4

270
30.8
250
55.7

315
83.3
250
70.8
Sioux Falls
0
21.3
41
39.3

45
53.7
41
45.2

90
41.5
41
42.5

135
38.6
41
41.7

180
28.9
41
39.3

225
20.9
41
39.3

270
13.1
41
39.3

315
18.7
41
39.3
Watertown
0
42.4
250
60.2

45
26.1
250
55.4

90
11.6
250
55.4

135
41.6
250
59.9

180
43.0
250
60.4

225
30.8
250
55.7

270
42.6
250
60.3

315
46.4
250
61.5
Turkey Ridge
0
85.7
170
66.2

45
113.1
170
70.8

90
111.9
170
70.6

135
57.7
170
60.2

180
107.8
170
70.0

225
125.7
170
72.6

270
111.5
170
70.5

315
81.1
170
65.4
Yanktown
0
60.3
160
60.2

45
102.4
160
68.3

90
116.6
160
70.5

135
64.5
160
61.2

180
50.0
160
57.5

225
26.2
160
50.9

270
111.8
160
69.8

315
33.8
160
52.4
Brookings
0
57.3
150
58.7

45
37.0
150
52.9

90
55.1
150
58.2

135
73.5
150
62.3

180
85.5
150
64.6

225
84.6
150
64.5

270
83.1
150
64.2

315
67.8
150
61.1
Radar Hill
0
122.6
60
59.2

45
139.8
60
61.1

90
133.4
60
60.4

135
106.2
60
57.2

180
166.8
60
70.8

225
128.1
60
59.8

270
178.9
60
72.0

315
95.0
60
55.7
Beresford
0
108.5
75
60.0

45
95.1
75
58.1

90
128.2
75
62.4

135
129.2
75
62.6

180
136.1
75
63.3

225
151.0
75
71.4

270
152.9
75
71.6

315
149.6
75
64.8