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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of STATE OF FLORIDA Request for Waiver of the Commission's Rules to Permit Licensing of Stations in 800 MHz General Category on Non-standard Channel Centers ) ) ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: January 18, 2001 Released: January 24, 2001 By the Deputy Chief, Wireless Telecommunications Bureau: I.Introduction 1.In this Memorandum Opinion and Order, we address the State of Florida's (Florida) Request for an Expedited Waiver of the Commission's Rules to enable Florida to obtain licenses on nineteen "off-set channels" associated with twenty contiguous 800 MHz General Category channels for which Florida is currently licensed. For the reasons discussed herein, we grant Florida's request. II.background 3.In 1994, the Commission proposed a new licensing framework for Specialized Mobile Radio (SMR) systems in the 800 MHz band. In its 800 MHz Further Notice, the Commission proposed revising its eligibility rules for General Category channels to prohibit SMR and non-SMR applicants from applying for the same channels in the future. The Commission also sought comment on how to structure competitive bidding procedures to choose among mutually exclusive initial SMR applications proposing operations in the Commercial Mobile Radio Services. 4.After the release of the 800 MHz Further Notice, there was a steep rise in the requests by SMR applicants and licensees for General Category channels. To ensure that the successful resolution of the spectrum allocation issues raised in the 800 MHz Further Notice would not be compromised, the Wireless Telecommunications Bureau (Bureau) placed a "freeze" on the filing of new applications for General Category channels. 5.In 1997, the Commission adopted final service and competitive bidding rules for the General Category channels. In doing so, the Commission reallocated the General Category channels exclusively to the 800 MHz SMR service. Further, it determined that the 800 MHz General Category channels would be licensed by channel block under a geographic area licensing approach with service areas based on Economic Areas (EAs) and that mutually exclusive initial applications would be subject to competitive bidding. In the 800 MHz SMR MO&O, the Commission reconsidered its final rules for the General Category channels and determined that private land mobile radio applicants would remain eligible for the General Category channels. The Commission, however, continued to subject General Category channels to competitive bidding procedures. The Commission partially lifted the freeze on General Category channels to permit potential EA applicants to relocate incumbents out of the upper 10 megahertz block of 800 MHz spectrum to the General Category channels. For situations other than this type of relocation, however, the Commission decided to maintain the freeze so as not to frustrate the future licensing of General Category channels under the new geographic licensing approach. 6.On August 8, 2000, Florida filed its 2000 Waiver Request seeking to become licensed on the nineteen offset frequencies within the twenty contiguous 800 MHz General Category channels for which it is the licensee. Florida contends that it is building a technically advanced, multi-million dollar 800 MHz digital trunked public safety statewide wireless communications system. According to Florida, the system, when completed, will provide interoperable communications capability among all statewide public safety agencies. Florida states that it has completed construction of two phases of its system and has taken steps to complete construction of the final three phases. In this regard, Florida asserts that significant public interest benefits would flow from it receiving licenses for the subject off-set channels at sites different from those at which it is currently using regularly assignable channels. Specifically, it states that such authorizations will allow it to ensure the best possible coverage performance, enhance the efficient use of its existing spectrum, and achieve greater communications capacity without having to utilize any more spectrum than currently authorized. 7.Florida argues that a waiver is warranted because application of the rule to its unique or unusual factual circumstances would yield a result contrary to the public interest. Florida asserts that the state, almost in its entirety, is covered by the composite footprint of its licensed stations; thus, according to Florida, another user could not gain access to the requested off-set frequencies. Without the requested waiver, Florida contends that it will be able to use only sixteen of the nineteen off-set channels at its currently licensed locations. 8.On August 21, 2000, we sought comment on Florida's 2000 Waiver Request. Motorola filed comments asserting that Florida (1) has other alternatives, and (2) has failed to adequately demonstrate that its proposed operations would not negatively impact the operations of any current or future Commission licensee. 9.After Florida submitted its waiver request, the Commission conducted an auction for 800 MHz General Category spectrum. The auction commenced on August 16, 2000 and closed on September 1, 2000. For the purposes of the auction, the 150 General Category channels were divided into six blocks or groups (D, DD, E, EE, F and FF) each containing twenty-five channels. The channels Florida is interested in are part of the spectrum in blocks F and FF. Eighteen EAs in Florida for Channel blocks F and FF received high bids in the auction. Three applicants were the high bidders for the relevant F and FF channel blocks in Florida. First, Nextel Spectrum Acquisition Corp. (Nextel) was the high bidder for eleven markets. Second, Southern Communications Services, Inc. (Southern) was the high bidder for six markets. Third, Motient Communications Company (Motient) was the high bidder for one market. None of these high bidders have filed comments opposing Florida's waiver request. III. DISCUSSION 10.A petitioner may obtain a waiver of the Commission's Rules by demonstrating that (1) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case and that grant of the requested waiver would be in the public interest; or (2) in view of unique or unusual factual circumstances, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest or no reasonable alternative exists. Based upon our review of the totality of the circumstances presented, we find that Florida has demonstrated that grant of the requested waiver is warranted here. 11.First, we find that the underlying purposes of both the Commission's Rules and the General Category freeze would not be frustrated by granting the requested waiver. In this regard, we conclude that grant of Florida's request to use the subject off-set channels would not frustrate the underlying purpose of Sections 90.613 and 90.615 of the Commission's Rules. We believe, as a general matter, that the underlying purpose of these Part 90 provisions is to further the Commission's goals of promoting technical flexibility and spectrum efficiency, while preventing harmful interference to licensed operations. For example, granting Florida a waiver to use the subject off-set channels would allow Florida to make more efficient use of its 800 MHz General Category spectrum. We believe that grant of the requested waiver also would facilitate more effective utilization of the General Category channels for which Florida is currently licensed, given that without the waiver the specific channels would not be licensed. Based on Florida's description of its licensed system, we are persuaded that the subject channels could not be used by another entity. Specifically, it is our understanding that Florida's statewide system comprises the channels in such a way that the EA licensee would not be able to operate on the subject channels in Blocks F and FF without causing harmful interference to Florida's operations. Against this backdrop, we believe that it would be contrary to the public interest to prohibit Florida from using the subject channels when it is the only entity in a position to do so, provided that such use would not adversely affect other licensees. 12.We also believe that grant of Florida's request would not result in harmful interference to other current or future licensees because Florida is the licensee of the regularly assignable channel on each side of each of the offset channels requested. Motorola argues that Florida failed to adequately demonstrate that its proposed operations would not negatively impact the operations of any current or future Commission licensee. Motorola, however, has not provided any engineering showings or other evidence indicating that there would be interference to other users, that the spectrum in question could be used by EA licensees, or that Florida's technical showings are flawed. Thus, based on the information before us, we are not persuaded that grant of Florida's request would adversely affect current or future licensees. 13.As to the General Category freeze, it was intended to prevent the filing of new applications for General Category channels in order to preserve the licensing landscape of the General Category spectrum so the Commission could implement competitive bidding procedures. In granting Florida a previous waiver concerning its General Category channels, the Bureau determined that the twenty regularly assignable channels licensed to Florida were used in such a significant portion of the state that they provided little use for EA licensees. We continue to believe that Florida's statewide system provides coverage to virtually the entire state as a result of the composite footprint of its stations thus providing little in terms of access to other users. As a result, we believe that licensing the off-set channels in question would have little impact on EA licensees. Moreover, the potentially affected bidders were on notice of Florida's request through the August Public Notice and the auction due diligence announcement, and the winning bidders did not oppose Florida's waiver request. 14.Second, we conclude that granting Florida's request is in the public interest. The Commission has stated on numerous occasions that two of its primary goals are to provide for the communications needs of the public safety community and promote interoperability among public safety entities. The waiver requested will allow Florida to expand and improve the coverage of its multi-million dollar statewide public safety communications system within its existing footprint. It will also allow public safety entities in Florida to communicate with one another. In sum, we believe that grant of a waiver here will allow Florida to perform its critical public safety responsibilities such as protection of life and property more effectively and efficiently. We nonetheless note that Motorola has suggested other alternatives to implement Florida's proposed operations that would not necessitate a waiver, such as use of Motorola's technical proposal for Florida's system. Given the record of this proceeding, we believe that this proposition alone is an insufficient basis upon which to deny the requested waiver. Further, we note that several factors are considered when a licensee evaluates competing proposals and, under the circumstances presented, we do not believe that it would be appropriate for us to question that decision. We believe that such decisions are most appropriately left to the discretion of the licensee, provided they do not contravene the Commission's rules and policies. Accordingly, we conclude that grant of the waiver is in the public interest. IV. CONCLUSION 15.For the reasons discussed herein, we conclude that grant of Florida's waiver request is warranted and furthers the public interest. We therefore grant Florida's request to waive the rules to use the nineteen off-set channels in question. As a result of this Order, Florida may provide public safety communications coverage state-wide for 808.8375-809.3125/853.8375-854.3125 MHz (Channels 114 - 133). However, applications for additional facilities must be located within the existing contours of Florida's currently authorized system as of January 24, 2001. 16.To obtain authorization for these channels, Florida must show compliance with this Order in their applications for the channels. Consequently, Florida may operate on the specified offsets at existing sites and new sites for which the relevant EA licensee must provide the same level of protection that it must provide to Channels 114 - 133. However, regarding the border areas of Georgia and Alabama, we will require that Florida comply with current Commission practices, which state that 40 dBu is an appropriate measure for the signal level necessary to provide sufficient protection from interference. Finally, we note that all applications to operate on these channels require frequency coordination. V. ordering clauseS 17.Accordingly, IT IS ORDERED that, 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, the Waiver Request filed by the state of Florida on August 8, 2000 IS GRANTED to the extent indicated herein. 18.This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION Kathleen O'Brien Ham Deputy Chief, Wireless Telecommunications Bureau