Federal Communications Commission FCC 11-113
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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Service Rules for the 698-746, 747-762 and 777-
792 MHz Bands
WT Docket No. 06-150
Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band
Amendment of Part 90 of the Commission's Rules
Request for Declaratory Ruling filed by the City of
Charlotte, North Carolina
PS Docket No. 06-229
WP Docket No. 07-100
FOURTH REPORT AND ORDER
Adopted: July 20, 2011
By the Commission: Commissioner McDowell issuing a statement.
Released: July 21, 2011
TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION 1
II. BACKGROUND 2
III. DISCUSSION 9
A. OVERVIEW OF SECTION 337 12
B. GOVERNMENT USE 16
IV. CONCLUSION 30
V. PROCEDURAL MATTERS 31
A. Regulatory Flexibility Act 31
B. Paperwork Reduction Act of 1995 32
VI. ORDERING CLAUSES 33
I. INTRODUCTION
1. In this Fourth Report and Order, we consider a Request for Declaratory Ruling ("Request")
filed by the City of Charlotte, North Carolina ("Charlotte" or "the City"), seeking guidance on the scope
of permissible operations under Section 337 of the Communications Act as undertaken by state, local, and
other governmental entities in the public safety broadband spectrum of the 700 MHz band.' While we
See Request for Declaratory Ruling filed by the City of Charlotte, North Carolina, PS Docket No, 06-229 (filed
Mar. 7, 2011) (Request); see also 47 U.S.C. § 337(f).
Federal Communications Commission FCC 11-113
decline to issue the requested declaratory ruling and accordingly dismiss the Request, we find ample
notice and record to consider Charlotte's request in the context of the pending rulemaking in this docket.
While we disagree with Charlotte's interpretation of the statute, we find that a reasonably broad
interpretation of the definition of "public safety services" under Section 337 of the Act would allow some
of the uses proposed by Charlotte and other commenters.
II. BACKGROUND
2. The public safety spectrum band at issue in this proceeding is designated for public safety
broadband communications (763-768 MHz and 793-798 MHz).2 This band is licensed on a nationwide
basis to the Public Safety Broadband Licensee ("PSBL").3 In 2007, the Commission, recognizing the
need for a nationwide, broadband, interoperable public safety network and difficulties in funding the build
out of the network, created a mandatory public-private partnership to facilitate these goals.4 The
implementation of the Commission's plans, however, faced an immediate obstacle when Auction 73
failed to produce a winning bidder to participate in the partnership.5 The Commission subsequently
issued both a Seconct and Third Further Notice of Proposed Rulemaking7 seeking comment on options to
achieve the goal of a nationwide, broadband, interoperable public safety network after the failed auction.
3. After the Commission adopted the Third Further Notice, a number of public safety
jurisdictions filed petitions for waiver of the Commission's rules to allow them to deploy broadband
networks in the public safety broadband spectrum.8 On May 11, 2010, the Commission adopted an order
granting twenty-one conditional waivers for some of these applicants to pursue early deployment of
statewide or regional broadband networks within their jurisdictions . Charlotte, North Carolina, was
among the waiver recipients.'° Since the Commission issued the Waiver Order, a number of additional
states and localities have filed waiver requests,1' and the Bureau has granted one additional waiver.'2
2 See Service Rules for the 698-746, 747-762 and 777-792 Bands; Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket No. 06-229, Second
Report and Order, 22 FCC Rcd 15289, 15406 ¶ 322 (Second Report and Order).
See id.
41d. at l5428[ 386.
See id.; see also Auction of 700 MHz Band Licenses Closes, Public Notice, DA 08-595 (rel. Mar. 20, 2008) (700
MHz Auction Closing Public Notice). htto://wireless.fcc.gov/auctions/default.htm?iob=auction summary&id=73;
Auction of the D Block License in the 758-763 and 788-793 Bands, AU Docket No. 07-157, Order, 23 FCC Rcd
5421, ¶ 5 (2008) (D Block Post-Auction Order).
6 See Service Rules for the 698-746, 747-762 and 777-792 Bands; Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket No. 06-229, Second
Further Notice of Proposed Rulemaking, 23 FCC Rcd 8047 (2008) (Second Further Notice).
Service Rules for the 698-746, 747-762 and 777-792 Bands; Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket No. 06-229, Third
Further Notice of Proposed Rulemaking, 23 FCC Rcd 14301 (2008) (Third Further Notice).
8 See Public Safety and Homeland Security Bureau Seeks Comment on Petitions for Waiver to Deploy 700 MHz
Public Safety Broadband Networks, 24 FCC Rcd 10814 (PSHSB 2009) (First Waiver Public Notice).
See Requests for Waiver of Various Petitioners to Allow the Establishment of 700 MHz Interoperable Public
Safety Wireless Broadband Networks, PS Docket 06-229, Order, 25 FCC Rcd 5145, 5147 ¶ 7 (2010) (Waiver
Order).
'°Id. at5171, app. A.
"See, e.g., Public Safety and Homeland Security Bureau Seeks Comment on Petitions For Waiver to Deploy 700
MHz Public Safety Broadband Networks, PS Docket No., 06-229, Public Notice, 25 FCC Rcd 13155 (Sept. 15,
2010); Public Safety and Homeland Security Bureau Seeks Comment on Additional Petition for Waiver to Deploy
(Continued...)
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Federal Communications Commission FCC 11-113
4. Several of the more-recently filed petitions for waivers include signatories such as electric
utilities. In the Waiver Order, the Commission limited use of the networks built pursuant to a waiver to
traditional public safety entities, pending resolution of the open question in the Third Further Notice
addressing the scope of permissible use and users of the nationwide, broadband, interoperable public
safety network under Section 337 of the Communications Act.'3 In seeking comment on these additional
waivers, the Public Safety and Homeland Security Bureau ("Bureau") sought further input on this issue in
light of the utility and other signatories to the new waiver requests.'4 Commenters to these Public Notices
largely argue that policy favors the inclusion of these users on the network to promote shared disaster
response, cost and infrastructure sharing, and funding opportunities.'5
5. In light of this record of support, the Commission again sought comment on this issue in its
January 2011 Fourth Further Notice of Proposed Rulemaking.16 Commenters in the rulemaking on this
issue generally favor allowing entities like utilities to access the network, assuming that there is sufficient
network capacity. Parties differ, however, on the level of access that should be allowed and the legal
theory under which such access would or could be permitted. Some utility interests argue that they
already satisfy the definition of public safety services and should be afforded primary status as a licensee
or lessee in the 700 MHz band.'7 Other utilities and public safety community commenters urge that
utilities should have secondary, preemptible access over a shared network, with traditional public safety
entities retaining control over the spectrum.'8 Other commenters argue that access by utilities on a
700 MHz Public Safety Broadband Network, PS Docket No. 06-229, Public Notice, 25 FCC Rcd 13364 (Sept. 22,
2010); Public Safety and Homeland Security Bureau Seeks Comment on Petitions For Waiver to Deploy 700 MHz
Public Safety Broadband Networks, PS Docket No., 06-229, Public Notice, 25 FCC Rcd 16932 (Dec. 1, 2010);
Request for Waiver filed by the North Central Pennsylvania Regional Task Force, PS Docket No. 06-229 (Nov. 30,
2010); Request for Waiver filed by the City of LaGrange, Troup County, Columbus Consolidated Government,
Muscogee County, Coweta County, Fayette County, Harris County, and Heard County, Georgia, PS Docket No. 06-
229 (filed Dec. 14, 2010); Request for Waiver filed by the Nashville-Davidson-Murfreesboro-Franklin MSA,
Nashville Electric Service, City of Belle Meade, City of Berry Hill, City of LaVergne and Metro Nashville Airport
Authority, PS Docket No. 06-229 (filed Dec. 14, 2010); Request for Waiver filed by the Tennessee Valley Regional
Communications System, PS Docket No. 06-229 (filed Mar. 18, 2011); Request for Waiver filed by the State of
Arkansas, PS Docket No. 06-229 (filed Apr. 5, 2011).
12 Request for Waiver of Various Petitioners to Allow the Establishment of 700 MHz Interoperable Public Safety
Broadband Networks, PS Docket No. 06-229, Order, DA 11-863 (PSHSB May 12, 2011).
' Waiver Order at ¶ 34, 5155.
'4See, e.g., supra n.J.
' See, e.g., State of New Mexico PN Comments (filed Oct. 15, 2010); Utilities Telecom Council PN Comments
(filed Oct. 18, 2010); State of Florida Department of Management Services PN Comments at 3 (filed Oct. 18, 2010);
Great River Energy PN Comments at 2 (filed Oct. 18, 2010); City of Seattle PN Comments at 2-6 (filed Oct. 18,
2010); State of Nevada Department of Transportation PN Comments (filed Oct. 15, 2010). Unless noted otherwise,
all comments referenced in this Order were filed in PS Docket No. 06-229.
Service Rules for the 698-746, 747-762 and 777-792 Bands; Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket No. 06-229, Third
Report and Order and Fourth Further Notice of Proposed Rulemaking, 26 FCC Rcd 733 (2011) (Third Report and
Order and Fourth Further Notice, respectively).
' See generally Utilities Telecom Council FNPRM Comments (filed April 7, 2011).
' Scana Communications FNPRM Comments (filed Apr. 11, 2011); Southern Company Services FNPRM
Comments (filed Apr. 22, 2011); Harris Corporation FNPRM Comments at 31-42 (filed Apr. Il, 2011); LA-RICS
FNPRM Comments at 5-6 (filed Apr. 11, 2011); NPSTC FNPRM Comments at 22 (filed Apr. 11, 2011); NYPD
FNPRM Reply Comments at 28-29 (filed May 10, 2011); Edison Electric Institute FNPRM Reply Comments (filed
May 10, 2011).
Federal Communications Commission FCC 11-113
primary basis is contrary to the plain language of the statute.'9
6. Following the issuance of the Fourth Further Notice, Charlotte filed a Request for
Declaratory Ruling seeking clarification of the scope of government use or users under Section 33720
Charlotte argues that state and local governments have "presumptively as their sole or principal purpose
the protection of safety of life, health, and property and are permitted to use the 700 MHz broadband
spectrum for activities conducted by their personnel including, but not limited to, activities of police, fire,
and medical emergency first responders."2' Charlotte further argues that Section 337 addresses only
eligible entities, and not the scope of activities undertaken by such entities using the spectrum, and
suggests that once eligibility is met, the actual use of that spectrum by an eligible entity becomes
irrelevant.22 Charlotte states that it is not seeking Commission action on the larger issue related to use of
the 700 MHz spectrum by utilities or other secondary users.23
7. Charlotte states that it needs certainty with respect to who is eligible to use the network
before it expends any funds on constructing a network pursuant to its waiver, including funds awarded
under the Broadband Technology Opportunities Program ("BTOP") administered by the National
Telecommunications and Information Administration ("NTIA") as a part of the American Recovery and
Reinvestment Act ("ARRA"). Charlotte was awarded approximately $16.7 million for its CharMeck
Connect project to deploy an interoperable 700 MHz wireless, broadband public safety network for the
city and the greater Mecklenburg County area.24 In explaining the need for a Declaratory Ruling,
Charlotte particularly notes two conditions in its BTOP grant. First, Charlotte's BTOP grant is
conditioned on its compliance with the Commission's requirements and orders in this docket, PS Docket
No. 06229.25 Second, its BTOP grant requires that any BTOP funded assets be limited to use by public
safety entities.26 Because the BTOP grant does not specifically define what constitutes a "public safety
entity," Charlotte asserts that Commission guidance is accordingly necessary.27 Charlotte notes in its
Request, for example, that it would like to include the City of Charlotte Department of Transportation, as
well as the Charlotte/Mecklenburg International Airport, as users, thereby enhancing their ability to serve
the public in emergency and day-to-day situations.28 Primary use of this network, however, would
remain focused on those government uses that directly support the safety of life, health, and property.29
8. Commenters addressing Charlotte's Request, including the NTIA, were largely supportive.
They support Charlotte's legal argument that government entities presumptively satisfy the requirements
' APCO FNPRM Comments at 9-11 (filed Apr. 11, 2011).
20 Request; see also Public Safety and Homeland Security Bureau Seeks Comment on Petition for Declaratory
Ruling Asking to Clarify the Scope of Section 337 Regarding the Use by State or Local Government Entities of the
700 MHz Public Safety Spectrum, Public Notice, PS Docket No, 06-229, 26 FCC Rcd 4040 (PSHSB 2011).
21 Request at 3.
221d at5.
23 Id. at 11.
24 See National Telecommunications and Information Administration, Broadband Technology Opportunities
Program, City of Charlotte Grant Award, http:/Jwww2.ntia.doc.gov/grantee/city-ot'-charlotte (last visited June 14,
2011).
25 Request at 2.
261d
27
28 Id. at 12.
291d at 11-12.
4
Federal Communications Commission FCC 11-113
of Section 337 and offer a variety of policy arguments that also support Charlotte's Request, including the
need for public safety flexibility and interoperability and a better ability to meet network costs should the
Commission grant the request. Several utilities also filed in support of Charlotte, arguing that their
interpretation of Section 337 and the same policies support inclusion of investor-owned utilities on these
networks.
III. DISCUSSION
9. Under Section 1.2 of its rules, the Commission "may. . . issue a declaratory ruling
terminating a controversy or removing uncertainty."30 The Commission has broad discretion whether to
issue such a ruling.3'
10. Charlotte, however, seeks a declaratory ruling on a matter of statutory interpretation
(specifically, Section 337) that has already been raised and remains an open issue in the above-captioned
rulemaking. Issuing a declaratory ruling apart from this rulemaking - without taking into account the
portions of the rulemaking record relevant to Charlotte's request - would unnecessarily and
inappropriately truncate the rulemaking process governed by the Administrative Procedure Act.32
Accordingly, we dismiss the request. While Charlotte attempts to segregate its request from the larger
statutory interpretation issue under review in the Fourth Further Notice, Charlotte's request is in fact a
subset of this issue that is being considered in the pending rulemaking. While we are not prepared to
resolve all of the questions raised in the rulemaking related to the interpretation of Section 337(f), we
believe that Charlotte's concerns can and should be resolved in the rulemaking at this time. As discussed
below, we find that a variety of governmental uses of the public safety network are appropriate and
permissible under Section 337, as long as each of the prongs of the statute is met. We also conclude that
many of the uses proposed by Charlotte and other commenters would satisfy the terms of the statute. We
find it inappropriate and contrary to the statute, however, to apply a presumption that all governmental
uses satisfy the terms of Section 337. Rather, use is a vital element of the test under Section 337(f)(1)(A)
and must be considered as a factual matter.
11. Finally, while we recognize the importance of addressing the matter of the scope of non-
governmental uses, such as by some utilities, we limit our conclusions today to governmental uses under
Section 337(f)(l)(B)(i). In this respect, we find that the record compiled on the issue of permissible non-
governmental use of the network requires more detailed analysis to fully consider the variety of legal
theories and practical considerations at issue, including the factual basis for the assertion that such uses
satisfy the statute, primary versus secondary access, how such access or authorization would be
implemented, and the policy considerations associated with any permitted access to the network.
A. OVERVIEW OF SECTION 337
12. Section 337 of the Communications Act governs the use of the 700 MHz band of spectrum.
Section 337(f)(1) defines what constitutes "public safety services" for which the 700 MHz public safety
spectrum is allocated:
(f) Definitions:
For purposes of this section:
3047 C.F.R. § 1.2.
' See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir. 1973), cert, denied, 414 U.S. 914 (1973);
Telephone Number Portability; BellSouth Corporation Petition for Declaratory Ruling and/or Waiver, CC Docket
No. 95-116, Order, 19 FCC Rcd 6800, 68109120(2004).
32 U.S.C. § 553.
Federal Communications Commission FCC 11-113
(1) Public safety services
The term "public safety services" means services-
(A) the sole or principal purpose of which is to protect the safety of life, health, or
property;
(B) that are provided-
(i) by State or local government entities; or
(ii) by nongovernmental organizations that are authorized by a governmental
entity whose primary mission is the provision of such services; and
(C) that are not made commercially available to the public by the provider.
13. In the Fourth Further Notice, we sought comment on each element of this definition, to
supplement the record regarding similar questions posed in the Second and Third Further Notices.
14. In the first instance, we find that while Section 337 does not speak directly to the issue, the
best interpretation of the statute provides that the term "public safety services" is directed towards the
communications service being provided by the entity in question, rather than the underlying service
provided by the entity, in determining the use of the spectrum. That is, the entity making the
communications need not be a police, fire, or emergency medical entity, but the communications
undertaken must solely or principally be used to protect the safety of life, health, or property.34 In this
respect, and as illustrated by the remainder of Section 337(0(1), public safety services may be provided
by a variety of entities, including governmental and authorized non-governmental entities.35 Section
337(a) also supports the reading that the "service" in question is a communications service, given that the
contrasting point made with respect to statutory allocation of spectrum is spectrum for "commercial use"
assigned by competitive bidding.36
15. With this base interpretation of Section 337(f)( 1), we turn to the specific elements under
Section 337(0(1 )(A)-(C) and Charlotte's proposed interpretation of the statute.
B. GOVERNMENT USE
16. In its Petition, Charlotte argues that government users satisfy the definition of public safety
services regardless of the actual use to which such users put the network and that such users are, by their
nature, using the network solely or primarily to protect the safety of life, health, and property. In this
respect, Charlotte contends that the definition addresses the eligibility of entities to use the 700 MHz
spectrum and not the scope of activities they may undertake on 700 MHz spectrum.37 Charlotte states that
this conclusion is implicit in the Commission's prior treatment of licensing in the 700 MHz band, as
47 U.S.C. § 337(f).
By the same token, an entity (governmental or non-governmental) that devotes its non-communications operations
principally to protecting the safety of life, health, or property will not be considered to be using its license for
Section 337(1) public safety services if it is not using its licensed spectrum solely or principally in support of the
protection of the safety of life, health, or property.
Id. at § 337(f)(l)(B).
36 Id. at § 337(a) (providing that the Commission allocate 24 MHz of 700 MHz spectrum to "public safety services"
and 36 MHz for "commercial use" to be assigned by competitive bidding pursuant to Section 309(j)).
Request at 5.
6
Federal Communications Commission FCC 11-113
embodied in Section 90.523 of the Commission's rules. To this end, Charlotte cites a number of entities
licensed for use in the 700 MHz narrowband spectrum as examples of entities that would not normally
fall under the rubric of police, fire, or emergency medical services. Accordingly, Charlotte asks "the
FCC to confirm explicitly what the rulings in PS Docket No. 06-229 and the processing of 700 MHz
narrowband applications indicate implicitly: Territories, possessions, states, counties, towns or similar
State or local governmental entities that qualify as 700 MHz lessees/users have as their sole or principal
purpose the protection of the safety of life, health and property and are permitted to use 700 MHz
broadband spectrum for activities conducted by their personnel including, but not limited to, activities of
police, fire and medical emergency first responders."38 Charlotte asserts that it is "axiomatic that the
'principal purpose' of governmental entities is the protection of the lives, health and property of their
citizens."39
17. The majority of commenters addressing the Charlotte petition support the city's request.
APCO; the City of McAllen, Tex.; and others urge the Commission to retain the licensing eligibility rules
contained in Sections 90.523 and 90.20 of its rules and allow governmental entities to hold 700 MHz
licenses without any additional restrictions as to the use of this spectrum.4° In this respect, the relevant
portion of Section 90.523 addressing government licensing states:
This section implements the definition of public safety services contained in 47 U.S .C.
337(f)(1). The following are eligible to hold Commission authorizations for systems
operating in the 763-775 MHz and 793-805 MHz frequency bands:
(a) State or local government entities. Any territory, possession, state, city, county, town,
or similar State or local governmental entity is eligible to hold authorizations in the 764-
776 MHz and 794-806 MHz frequency bands.4'
18. The state of New Mexico similarly argues that the Commission's prior determination not to
require any showing beyond the identity of the party as a governmental entity was correct, suggesting that
local government entities are entitled to the presumption Charlotte seeks. In this respect, so long as the
entity in question is a governmental entity, all official governmental communications would be permitted
under the statute. Specifically, New Mexico cites the Commission's 1998 rulemaking addressing
eligibility for licensing in the 700 MHz band, in which the Commission stated, "[W]e conclude that state
or local governmental entities are eligible for licensing in the 700 MHz band without further showing as
to eligibility. We acknowledge, in this regard, our departure from the Second Notice's tentative
conclusion that certain state and local government entities would be ineligible for licensing under the
statutory definition of public safety services. We are adopting a more inclusive interpretation today
because, as suggested by many commenters, the more inclusive definition better reflects the statutory
intent."42
38 Id. at 3.
391d. at9.
40 APCO Declaratory Ruling Comments at 3 (filed Apr. 11, 2011); see also McAllen. Tex. Declaratory Ruling
Comments at 1-2 (filed Apr. 5, 2011); Iowa Statewide Interoperable Communications System Board Declaratory
Ruling Comments at 2 (filed Apr. 2, 2011); Seattle Declaratory Ruling Comments at 1-2 (filed Apr. 11, 2011).
' 47 C.F.R. § 90.253.
42 New Mexico Declaratory Ruling Comments at 5-6(citing The Development of Operational, Technical, and
Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communications Requirements
Through the Year 2010; Establishment of Rules and Requirements for Priority Access Services, WT Docket No. 96-
86, First Report and Order and Third Notice of Proposed Rulemaking, 14 FCC Rcd 152 at ¶ 54 (1998) ("1998
Order")).
7
Federal Communications Commission FCC 11-113
19. IMSA agrees, arguing that Section 337 applies to entities, not to activities conducted over the
spectrum, and accordingly governmental users inherently satisfy the statute's requirements.43 Motorola
also contends that Section 337 applies to the entity rather than the use of the spectrum, stating that
Charlotte's interpretation "properly embraces secondary responders associated with city or governmental
organizations," including public works and public uti1ities.' Motorola concedes, however, that the most
ideal solution would be for Congress to amend the statute to grant local governments the authority to
determine eligible users.45 NTIA further supports Charlotte's assertion that state and local government
entities presumptively satisfy Section 337's requirements and adds that such a determination by the
Commission would help ensure the viability of BTOP grant recipients' systems.46 Commenters also
support the policy of allowing diversified use of the spectrum by governmental entities, citing a greater
ability to spread the costs of the network among users, spectrum efficiency, enhanced interoperability and
coordination during disasters, and other logistical considerations.47
20. In responding to the Fourth Further Notice, commenters similarly urged the Commission to
be broadly inclusive in determining who may use the 700 MHz public safety spectrum. The Bay Area,
which is also part of a BTOP project, states that any governmental users with the sole or principal purpose
of protecting the safety of life, health, or property should be permitted to use the 700 MHz public safety
spectrum, as should "other users required for successful response and recovery event coordination."48 It
argues that government use qualifying under Section 337 would include "public hospitals and public
health agencies, housing inspectors, agencies that maintain streets and public rights-of-way, agencies that
enforce parking and traffic laws and transportation agencies."49 The New York Police Department urges
the Commission "to broaden its interpretation of Section 337 to include all government entities, local,
county, State, Tribal and Federal" as well as utilities.50
21. However, a number of commenters disagree with the idea that the identity of the user should
solely control who can use the spectrum, urging the Commission to consider the use, as well as the user,
in contemplating participation on the 700 MHz public safety broadband network. For example, while
APCO asserts that Section 337(O(1)(B), as embodied in Section 90.523, allows governmental entities and
authorized non-governmental entities such as volunteer fire departments and private ambulance services
to hold 700 MHz licenses, APCO further asserts that utilities could not be licensees or lessees because
they fail the "sole or principal purpose" test.51 In this respect, however, APCO fails to distinguish why
the sole or principal purpose requirement is operative with respect to non-governmental users but not with
respect to governmental users. Conversely, the Utilities Telecom Council argues that utilities satisfy the
u IMSA Declaratory Ruling Comments at 3 (filed Apr. 11, 2011); LA-RICS Declaratory Ruling Comments at 1-2
(filed Apr. 11,2011).
' Motorola Declaratory Ruling Comments at 2 (filed Apr. 11, 2011).
451d. at4.
NTIA Declaratory Ruling Comments at 2 (file Apr. 8, 2011).
APCO Declaratory Ruling Comments at 2 (filed Apr. 11,2011); Berks County, Pa. Declaratory Ruling Comments
at 1 (filed Apr. 11, 2011); IMSA Declaratory Ruling Comments at 4-5 (filed Apr. 11, 2011); Iowa Statewide
Interoperable Communications System Board Declaratory Ruling Comments at 2 (filed Apr. 11, 2011); McAllen,
Tex. Declaratory Ruling Comments at 2 (filed Apr. 11, 2011); New Mexico Declaratory Ruling Comments at 3
(filed Apr. 22, 2011); City of Tucson, Ariz, Declaratory Ruling Comments at 1-2 (filed Apr. 11, 2011); Virginia
Beach Declaratory Ruling Comments at 2 (filed Apr. 11, 2011).
48 San Francisco Bay Area FNPRM Comments at 29 (filed Apr. ii, 2011).
n Id.
50NYPD FNPRM Reply Comments at 29.
51 APCO FNPRM Comments at 10.
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Federal Communications Commission FCC 11-113
sole or principal purpose requirement, as well as the other elements of the statute.52 Here as well,
however, commenters fail to provide a rationale for distinguishing one class of Section 337(f)(1)(B) users
from another with respect to the need to also satisfy Section 337(f)(1)(A), and we believe there is none.
22. We find that Petitioner's and commenters' focus on user over use with respect to
governmental entities is inconsistent with the plain language of the statute, which defines "public safety
services." Rather, we must consider both use and user in the manner addressed by the components of the
definition. In particular, accepting Charlotte's reading of the statute would render Section 337(f)(1)(A)
superfluous with respect to governmental users, insofar as that section requires that public safety services
be services "the sole or principal purpose of which is to protect the safety of life, health, or property."53 If
Congress had intended to rely solely on the identity of the user as a governmental entity, there would have
been no need to specify that the sole or principal purpose of the service provided must be to protect the
safety of life, health, or property. Rather, Congress could simply have required that the user either be a
governmental entity or an authorized non-governmental entity, as specified in Section 337(f)( 1)(B),
whose sole or principal purpose for the service was to protect the safety of life, health, or property.
Instead, Congress structured the definition to require both a certain type of use (without any qualifier as to
the user (described in subsection (f)(1)(A))) and certain types of users (described in subsection (O(1)(B))
in order for the services to qualify as "public safety services."
23. Moreover, while Petitioner and several commenters focus on the Commission's earlier
determination declining to adopt a more rigorous test for licensing beyond the identity of the licensee as a
state or local government, the Commission specifically noted at that time that, once licensed, "the
spectrum must be used for services whose sole or principal purpose is to protect the safety of life, health
or property."54 Further, while Petitioner points out that a number of 700 MHz narrowband licensees
include governmental transit agencies and others under Section 90.523, which is consistent with the
licensing determination made in 1998, Petitioners and commenters fail to note the language cited above in
the 1998 Order specifically acknowledging the statute's "use" requirement. They also fail to note that the
Third Further Notice specifically proposed to amend Section 90.523 to clarify that use of the spectrum by
700 MHz licensees must conform to all of the prongs of Section 337, including the sole or principal
purpose restriction.55
24. In particular, the Third Further Notice considered revisions to Section 90.523 seeking to
ensure that the services provided by the PSBL conformed to all of the terms of Section 33756 There, the
Commission noted in particular that "the question of whether the [PSBL]'s service qualifies as a 'public
safety service' ... depends in part on the nature of the spectrum use by the entities to which it grants
access to the shared broadband network."57 In this regard, the Commission further expounded that, under
Section 337, in theory the PSBL could provide access to users for purposes that do not principally involve
safety of life, health, or property, so long as the principal use of the network remained for these purposes.
However, the Commission posited that such an approach appeared to be inconsistent with the statute, as
this could allow the existence of pockets of services or geographies wholly unrelated to public safety.58
The same logic would apply to Charlotte or to any other government use under the principal purpose
52 See generally Utilities Telecom Council FNPRM Comments.
47 U.S.C. § 337(f)(l)(A).
1998 Order, 14 FCC Rcd at 180-8 1, ¶ 54.
See id; see also Third Further Notice, 23 FCC Rcd at 14404-05 ¶ 322.
56 See Third Further Notice, 23 FCC Rcd at 14403 ¶ 316.
See id.
581d atI318.
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Federal Communications Commission FCC 11-113
analysis.
25. Thus, we find that even if the spectrum is licensed to a particular entity based on the identity
of the user under Section 337(f)(1)(B), such use must also conform to the terms of Section 337(f)(1)(A).
Accordingly, even though Charlotte and other governmental entities have access to the spectrum as an
eligible licensee or lessee, the uses by its personnel must also be restricted to those uses that conform to
the "sole or principal purpose" prong of Section 337(f)(1)(A).
26. However, we also find that we have discretion to determine, within the statute, what types of
activities the communications service must support in order to satisfy the requirement that the sole or
principal purpose of the service is the protection of the safety of life, health, or property. In this respect,
Charlotte notes that users of its network may include the City of Charlotte Department of Transportation
and the Charlotte/Mecklenburg International Airport, both for day-to-day and emergency
communications.59 With respect to uses by the Department of Transportation and the
Charlotte/Mecklenburg International Airport, any use by these entities must adhere to the "sole or primary
purpose" clause of Section 337(f)(1)(A). While emergency communications would clearly qualify as
having the requisite safety purpose, day-to-day communications may or may not. We would anticipate,
however, that many types of routine communications uses would qualify. Although Charlotte does not
expand on what these uses might be, transportation departments are generally responsible for the safety of
motorists and passengers on public transportation, the safety of public highways, and generally ensuring
the safety of travelers. Waiver recipient Seattle advocates for the inclusion of transportation departments
as well, stating that such governmental units "have a primary purpose of allowing traffic to flow freely
through cities and states. Over 30,000 lives are lost on the highways of the nation each year. A significant
number of those deaths directly relate to the design, construction and maintenance of traffic arteries."60
In this respect, Seattle argues that transportation departments among other things design and maintain
roadways and install and maintain traffic signals and signs, and accordingly "the work of these
departments has a direct relationship with the 'safety of life' and the 'safety of property' (e.g.
automobiles, property adjacent to roadways)."6' Safety and homeland security has become a prominent
issue within the purview of airport authorities since the attacks of September 11, 2001, requiring
heightened daily security at airports to guard against terrorism. Moreover, ensuring the routine safety of
airline passengers, crews, and airport personnel and property in a complex air transportation environment
requires vigilance and close coordination and communication. To the extent the spectrum covered by a
license is solely or primarily used for communications that support these types of activities, we agree that
the licensed communications services would meet the "sole or principal purpose" element of the Section
337 definition of "public safety services."
27. Other commenters also offered examples of governmental users and uses. LA-RICS, also a
BTOP recipient, describes uses by "secondary responders" in response to wildfires and flooding in 2009
as examples of uses that should be permitted on the 700 MHz spectrum. Secondary users in this instance
included the Department of Animal Control rescuing large animals from the fire and entities closing off
streets and directing evacuations from floods and determining when homes were safe for return by
residents.62 LA-RICS also cited coordinated efforts by the California Highway Patrol, City of Los
Angeles Fire, City of Los Angeles Department of Water and Power, Los Angeles County Public Works,
and the Los Angeles County Sheriff and Fire Departments to ensure resident safety and maintain access to
neighborhoods affected by flooding following the 2009 wildfires.63 These emergency response functions
Request at 12.
60 Seattle Declaratory Ruling Comments at 2.
61 ld.
62LARICS FNPRM Comments at 3-4.
63 Id. at 4.
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protect the safety of animals, homes, and city infrastructure, as well as that of residents in the path of an
impending wildfires and floods - all prime examples of the protection of life, health, and property.
Accordingly, a network that is solely or principally devoted to communications that support these
functions will be considered to provide services that meet the "sole or principal purpose" element of the
Section 337 definition of "public safety services."
28. In addition to the potential transportation uses discussed above, waiver recipient Seattle cites
a number of governmental functions that it argues protect the safety of life, health, or property that are not
provided by traditional "public safety" entities. For example, Seattle states that city planning and
development carried out by building departments "have a primary purpose of insuring building
construction complies with codes which protect the safety of the building's users and inhabitants."64
Seattle also notes that "[z]oning codes exist to separate uses of property, thereby protecting the health of
residents and workers."65 Seattle argues that recent events such as earthquakes in Japan, New Zealand,
and Haiti clearly indicate the direct relationship between the "safety of life," "safety of property," and the
work of such departments.66 We also find that in light of the clear-cut public safety character of the work
that is described as being performed by the Seattle departments, communications supporting this work
would similarly be treated as having the requisite protective safety character when considering whether
the overall purpose of the licensed use at issue is for "the sole or principal purpose" of "protect[ing]
the safety of life, health, or property" under Section 337(0's definition of "public safety services."
29. Finally, we address briefly the "not commercially available" requirement of Section
337(f)(1)(C) with respect to governmental uses of spectrum. As discussed above, the "service" in
question is the communications service offered by the governmental entity. We find this prong satisfied
as long as the communications services of a public safety broadband 700 MHz network are used for
internal communications purposes in support of the governmental mission.
IV. CONCLUSION
30. We find that the presumption that Charlotte seeks that any use of a public safety broadband
network in the 700 MHz band by a government entity is permissible is not supported by a plain reading of
the statute. However, we find that there is sufficient flexibility within the statute to encompass many of
the uses contemplated by Charlotte and many of the commenters. While we have not opined as to all of
the possible uses of the 700 MHz spectrum that would meet each of the prongs of the statute, we believe
we have provided an adequate structure for analyzing the statute that can provide guidance to government
entities seeking to determine who may use its systems in this spectrum and how those systems may be
used in order to qualify as "public safety services" under Section 337(f). To the extent that any doubt
remains as to a particular use, parties may seek a declaratory ruling pursuant to Section 1.2 of our rules.67
We delegate authority to the Public Safety and Homeland Security Bureau to consider specific uses
proposed by a government user and issue a ruling as appropriate.
V. PROCEDURAL MATTERS
A. Regulatory Flexibility Act
31. This Fourth Report and Order does not promulgate any "rule" as that term is defined in the
64 Seattle Declaratory Ruling Comments at 2.
Id. at 2.
66 Id. at 2-3. Seattle also argues that governmentrun utility departments have a primary purpose of providing
electricity, water and gas, and removing wastewater and solid waste from the properties in a city or county, and that
fouled water, failure to remove wastewater, and lack of electricity can each result in immediate damage to lives and
property. As noted herein, however, we are deferring a determination regarding utility use at this time.
67 C.F. R. § 1.2.
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Regulatory Flexibility Act,68 so the Commission is not required to prepare a Final Regulatory Flexibility
Analysis at this stage of this proceeding.
B. Paperwork Reduction Act of 1995
32. Paperwork Reduction Act of 1995. This document contains no new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.
VI. ORDERING CLAUSES
33. Accordingly, IT IS ORDERED that, pursuant to Sections 1, 4, 201(b), and 337 of the
Communications Act of 1934, as amended, 47 U.S.C. §151, 154, 201(b), 337, and Section 1.2 of the
Commission's mles, 47 C.F.R. § 1.2, the Request for Declaratory Ruling filed by the City of Charlotte,
North Carolina, IS DENIED.
34. IT IS FURTHER ORDERED that, pursuant to sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208,
214, 301, 302, 303(r), 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710
of the Communications Act of 1934, as amended, 47 U.S.C. § 151, 152, 154(i), 155(c), 157, 160, 201,
202, 208, 214, 301, 302, 303(r), 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, and 337, this
Fourth Report and Order in PS Docket No. 06-229 IS ADOPTED and shall become effective upon
publication in the Federal Register.69
35. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of the Fourth
Report and Order in a report to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
68 See 5 U.S.C. § 60(2),
69 Because the Fourth Report and Order imposes no immediate obligations on any party, we find that good cause
exists for making the Fourth Report and Order effective upon publication in the Federal Register.
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STATEMENT OF
COMMISSIONER ROBERT M. McDOWELL
RE: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150;
Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz
Band, PS Docket No. 06-229; Amendment of Part 90 of the Commission's Rules, WP Docket No.
07-100; Fourth Report and Order, FCC 11-113
I support this order and I thank the team in the Public Safety and Homeland Security Bureau for
their thorough and thoughtful analysis. Today, we affirm that local governmental entities may make their
own decisions about the users and uses permitted on their broadband networks within the bounds of the
statute. We provide flexibility and certainty for the city of Charlotte, North Carolina and all of the
jurisdictions moving ahead to construct broadband networks pursuant to Commission waiver.
I have long been a proponent of flexible spectrum use. As illustrated here, old-style "command
and control" policies would needlessly hamper those who are in the best position to understand and
satisfy their individual requirements. Moreover, on a practical level, allowing additional users to access
the network will provide these communities with needed revenue for build-out and maintenance.
Certainly Congress had these benefits in mind when defining "public safety services" broadly.
I look forward to continuing to work with Congress, my Commission colleagues and all
interested parties to improve the ability of public safety entities to achieve interoperability in an efficient,
timely manner.
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