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Released: June 21, 2013

Federal Communications Commission

DA 13-1419

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Application of
)
)

ALLEGANY, COUNTY OF
)
File Nos. 0004666772, 0004666773,
)
0005775375 and 0005778896
Modification of Private Land Mobile Radio
)
Stations WQNA318 and WQME708 and Requests )
for Special Temporary Authority
)

ORDER

Adopted: June 21, 2013

Released: June 21, 2013

By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION.

1.
We have before us two modification applications and two Special Temporary Authority
(STA) applications filed by Allegany County Emergency Services, New York (Allegany County).1
Allegany County filed the two modification applications to add frequencies 151.235 MHz and 155.145
MHz to Private Land Mobile Radio (PLMR) Stations WQNA318 and WQME708. Because officials
from Canada object to Allegany County's proposed use of frequency 151.235 MHz, staff from the Public
Safety and Homeland Security Bureau (Bureau) directed Allegany County to seek STA to operate on
frequency 151.025 MHz in lieu of frequency 151.235 MHz. Endless Mountains Transportation Authority
(EMTA), however, filed a Petition to Deny Allegany County's STA request to operate on frequency
151.025 MHz alleging potential interference to its station, call sign WQFA896, Athens Pennsylvania.2
2.
For the reasons set forth herein, we dismiss EMTA's Petition and grant Allegany's STA
applications. We also direct Allegany County to amend its pending applications to modify PLMR
Stations, call signs WQNA318 and WQME708, by deleting frequency 151.235 MHz and substituting
frequency 151.025 MHz no later than July 12, 2013. During this time Allegany County and EMTA may
wish to negotiate an arrangement for sharing frequency 151.025 MHz.

II.

BACKGROUND.

3.
On March 25, 2011, Allegany County filed two applications in connection with its police,
fire and EMS operations seeking to add frequencies 151.235 MHz and 155.145 MHz to PLMR stations
WQNA318 and WQME708.3 Because Allegany County is near the U.S.-Canada border and some of its
base stations are located above Line A,4 it must secure concurrence from Canada prior to activating any


1 See FCC File Nos. 0004666772 and 0004666773 (filed Mar. 25, 2011) (Modification Applications); FCC File Nos.
0005775375 and 0005778896 (filed May 10, 2013 and May 14, 2013) (STA Requests).
2 See Petition to Deny filed by Endless Mountains Transportation Authority attached to STA Requests (dated May
16, 2013) (EMTA Petition).
3 Modification Applications.
4 "Line A" defines the coordination zone in the U.S. along the border between Canada and the lower 48 states of the
U.S. See 47 C.F.R. 1.928(e).

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operations above Line A in the 150 MHz band with greater than five watts effective radiated power.5
Without obtaining Canadian approval, however, Allegany County began operating on the two new
frequencies both above and below Line A, which resulted in an interference incident to a licensee in
Canada on frequency 151.235 MHz.6
4. In April 2011, officials from Canada objected to Allegany County's proposal to operate on
frequency 151.235 MHz above Line A.7 After being notified of Canada's objection, Bureau staff worked
with Canadian officials, Allegany County and Allegany County's frequency coordinator, Forestry
Conservation Communications Association (FCCA), to find a suitable substitute for frequency 151.235
MHz. Staff instructed FCCA to examine alternative frequencies in the 150 MHz band from the Public
Safety and Industrial/Business Pools. After an extensive search, staff and FCCA concluded that 151.025
MHz is the only frequency available domestically on a shared basis at the locations proposed by Allegany
which would clear coordination with Canada.
5. On May 10, 2013, at the direction of Bureau staff, Allegany County filed two STA
applications seeking temporary authority to operate on frequency 151.025 MHz in lieu of frequency
151.235 MHz.8 The STA applications also sought authority to operate on frequency 155.145 MHz.9 The
STA applications proposed operation on the two new frequencies at the base station locations authorized
under call signs WQNA318 and WQME708.10 The purpose of the STA applications was to pursue
concurrence from Canada for operation above Line A and to afford Allegany County the opportunity to
test the two new frequencies. Allegany County notes in its STA applications that--if the applications are
approved by Canada--Allegany County intends to "delete its request to use the frequency 151.235 MHz
and to substitute instead the proposed use of the frequency assignment 151.025 MHz."11
6. In conjunction with its STA applications, Allegany County requested concurrence from
EMTA for Allegany County's proposed operation on frequency 151.025 MHz.12 EMTA is licensed to
operate on frequency 151.025 MHz at a location in Tioga County, PA under call sign WQFA896.
7. On May 16, 2013, EMTA filed a Petition to Deny Allegany County's STA request.13 EMTA
takes issue with Allegany's STA request because it "demonstrates that the County's sole concern is
whether the subject frequency can be cleared with Canada for future use."14 Because EMTA "assume[s]"
that Allegany County filed its STA request without regard to EMTA's operations, EMTA claims that the


5 See 47 C.F.R. 1.928 (detailing FCC rule requirements pursuant to the Above 30 MHz Agreement with Canada).
6 Section 90.159(b) of the Commission's Rules allows an applicant for modification of an existing land mobile
radio station license to operate under the proposed modification during the pendency of the application provided that
the proposed station is located south of Line A. See 47 C.F.R. 90.159(b).
7 See Letters from the Federal Communications Commission to Allegany County Emergency Services (Apr. 15,
2011 and Apr. 20, 2011) (attached to Modification Applications).
8 See STA Requests.
9 Id.
10 Id.
11 See attachment to STA Requests labeled "STA Justification."
12 See Letter from Office of the Sheriff, Allegany County to WQFA896, Endless Mountain Transportation Authority
(May 7, 2013) (attached to EMTA Petition).
13 See EMTA Petition.
14 Letter from Robert H. Schwaninger, Jr., Counsel for Endless Mountains Transportation Authority to Ricky L.
Whitney, Sheriff, Allegany County (EMTA Objection) attached to EMTA Petition at 1.
2

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"information contained within the applications for STA is incomplete and not provided in accord with
Section 1.17(a)(1) of the Commission's Rules insofar as the applications contain intentional and relevant
omissions."15
8. Typically, EMTA submits, a request for concurrence to use a frequency would include "the
applicant's entire proposal as will ultimately appear on an FCC application for use of the channel."16
EMTA further argues that Allegany County "continues to refuse to provide sufficient information upon
which any concurrence might be based."17 EMTA adds that "it has not been shown that the frequency is
the most appropriate frequency for the County's use, which is required under Section 90.175(a) of the
Commission's Rules."18 EMTA submits that the frequency was chosen simply because it would be
"acceptable to Canada, without regard to any coordination within the United States."19 Such an approach,
EMTA argues, "does not equate to acceptable to existing U.S. licensees, nor would the fact that Canada
might accept the proposed use equate to the `most appropriate' for satisfaction of the frequency
coordination requirements."20 Therefore, EMTA objects to Allegany County's STA request unless
Allegany County is willing to demonstrate that its use will not cause harmful interference to EMTA's
operations.21

9. On May 28, 2013, Allegany County filed an Opposition to EMTA's Petition.22 Allegany
County argues that grant of the STA request is appropriate under the circumstances. First, Allegany
County submits that the purpose of the STA request is to conduct tests in accordance with Section 1.931
of the Commission's Rules to determine if permanent authorization is appropriate and to engage in the
domestic and international coordination process.23 Allegany County affirms that it is interested in
addressing potential interference concerns to Canada and to EMTA from shared use of frequency 151.025
MHz.24
10. Second, Allegany County states that, should it seek permanent authorization for 151.025
MHz, then it will then seek frequency coordination.25 However, Allegany County notes that the
Commission's rules do not require Allegany County to obtain EMTA's concurrence for permanent use of
frequency 151.025 MHz, let alone on a temporary basis.26 Allegany County also points out that the rules
cited by EMTA in its Petition apply only to applications for permanent authorization and that Allegany
County intends to provide the necessary information regarding its proposed use of 151.025 MHz should it
amend its pending modification application.27 Allegany County argues that the Commission has routinely


15 Id. at 1-2 citing 47 C.F.R. 1.17(a)(1).
16 Id. at 1.
17 Id. at 2.
18 Id.
19 Id.
20 Id.
21 Id. at 3.
22 See Opposition of Allegany County Emergency Services (dated May 28, 2013) attached to STA Requests
(Opposition).
23 Id. at 2 citing 47 C.F.R. 1.931(b)(2)(iii).
24 Id.
25 Id. at 3.
26 Id. at 3-4.
27 Id. at 4.
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rejected petitions to deny STA applications based on claims of interference.28 Finally, Allegany County
observes that all STAs are issued on a secondary, non-interference basis and that applicants are required
to discontinue operations if they cause harmful interference to others.29 Allegany County reaffirms that
should EMTA experience any harmful interference from Allegany County's operations on frequency
151.025 MHz, while the STA is in effect, Allegany County will take immediate action to correct the
problem.
11. On May 30, 2013, officials from Canada approved Allegany's operation on the frequencies
151.025 MHz and 155.145 MHz above Line A under the STA applications.30
12. On June 4, 2013, EMTA filed a Reply to Allegany County's Opposition.31 EMTA reiterates
that Allegany County bears the burden to prove that its proposed operations will not cause harmful
interference to EMTA and that Allegany has not demonstrated that frequency 151.025 MHz is the most
suitable one for its proposed operations.32 In support of its interference concerns, EMTA submits
propagation studies prepared by Allegany County that purportedly show that Allegany County's proposed
operations will cause interference.33 EMTA claims that Allegany County has thus far failed to provide
sufficient information to ameliorate the threat of interference.34 EMTA urges the Bureau to deny the STA
applications and to "encourage the parties to continue their dialogue to resolve equitably and through
shared information this situation."35

III.

DISCUSSION.

A.

Petition to Deny

13. As an initial matter, we note that "neither the Communications Act of 1934, as amended, nor
the Commission's rules provide for the filing of petitions to deny PLMR applications."36 We therefore
dismiss EMTA's Petition.
14. Nevertheless, we treat EMTA's filing as an informal objection under Section 1.41 of the
Commission's rules37 and are considering the arguments presented in the EMTA and Allegany County
pleadings in order to clarify our licensing procedures regarding shared spectrum. As discussed herein we
find that EMTA has not established sufficient grounds to deny Allegany County's STA request. EMTA
challenges Allegany County's STA request on three general grounds: (1) Allegany County lacked candor
in filing the STA request; (2) Allegany County's concurrence request based on Section 90.175 of the


28 Id. at 5.
29 Id. at 6.
30 See COSER numbers listed in STA Requests.
31 Reply of Endless Mountain Transportation Authority (dated June 4, 2013).
32 Id. at 1-3.
33 Id. at 3 and Attachment.
34 Id.
35 Id. at 4.
36 See generally 47 U.S.C. 309(b), 309(d)(1); 47 C.F.R. 1.901-1.981; cf. Interstate Consolidation, Inc.,
Memorandum Opinion and Order, 15 FCC Rcd 3330, 3333 8 (2000) (Interstate) (Commission's rules contain no
provision for filing a petition to deny against private land mobile radio license applications); City of Compton Police
Department, Order on Reconsideration, 15 FCC Rcd 16563, 16567 10 (WTB 2000) (City of Compton) (formal
petitions to deny do not lie against STA applications).
37 47 C.F.R. 1.41.
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Commission's Rules allegedly contained defects; and (3) Allegany County's operation has the potential to
cause harmful interference to EMTA's operations.
15. We reject EMTA's suggestion that Allegany County lacked candor in filing its request for an
STA. EMTA argues, for example, that the STA request lacks technical and operational information.
Contrary to EMTA's contentions, however, Allegany County was not obligated to inform EMTA of the
STA request or to furnish EMTA with technical and operational information regarding its proposed
operations. We are not aware of a regulation or statute, and EMTA has cited none, that requires Allegany
County to serve EMTA with a copy of its STA request.38 Nor are we aware of a regulation or statute that
requires Allegany County to inform EMTA that it was considering filing an STA request specifying a
frequency different than those listed on its pending modification application.
16. EMTA places unwarranted reliance on Section 90.175 of the Commission's rules39 for the
proposition that there are defects in Allegany County's concurrence request. Section 90.175 deals with
frequency coordination, which is not required for STA requests. Moreover, the Commission's rules do
not require an STA applicant to seek concurrence from incumbent licensees Allegany's notification to
EMTA was a courtesy. Additionally, the purpose of the STA request is to allow Allegany County to
determine whether its pending modification applications should be amended. Allegany County's
approach is consistent with Section 1.931(b)(2) of the Commission's rules, which allows applicants such
as Allegany County "[t]o conduct tests to determine data for the preparation of an application for regular
authorization."40
17. EMTA has failed to present sufficient, specific allegations of fact supporting its claims of
potential harmful interference. The mere addition of a user to a shared channel does not in and of itself
present grounds for denying an application.41 Additionally, STAs are conditioned on a secondary, non-
interference basis.42 Should EMTA experience harmful interference from Allegany County's STA on
frequency 151.025 MHz, the Commission's rules would require Allegany County to discontinue
operations. Additionally, we agree with Allegany County that its STA request does not require frequency
coordination because the frequency coordination requirement applies only to applications for permanent
authorization, including modification applications.43 Therefore, we find that EMTA's allegations do not
merit denial of Allegany County's STA request. Consequently, treating it as an informal request for
Commission action pursuant to Section 1.41 of the Commission's rules, we deny EMTA's Petition.
18. Although we dismiss EMTA's Petition and deny it as an informal request for Commission
action, we believe the public interest would be served if Allegany County and EMTA reach a mutual
agreement on sharing frequency 151.025 MHz on a permanent basis. We note that frequency 151.025
MHz is available for shared use and the Commission's rules do not provide "first-in-time preference" to
current users of shared channels.44 In fact, Section 90.173(a) of the Commission's rules explicitly states
that "[e]xcept as otherwise specifically provided in this part, frequencies assigned to land mobile stations
are available on a shared basis only and will not be assigned for the exclusive use of any licensee."45 In


38 City of Compton, 15 FCC Rcd at 16567 10.
39 47 C.F.R. 90.175.
40 47 C.F.R. 1.931(b)(2)
41 Interstate, 15 FCC Rcd at 3336 13.
42 47 C.F.R. 1.931(b)
43 47 C.F.R. 90.135 and 90.175.
44 Interstate, 15 FCC Rcd at 3337 14; 3338 17.
45 47 C.F.R. 90.173(a).
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this instance, EMTA has no exclusive rights to frequency 151.025 MHz.46 Furthermore, both EMTA and
Allegany County are eligible to be licensed on this frequency pursuant to Section 90.20 of the
Commission's Rules.47
19. Since it has obtained approval from Canada for its STA applications, we envision Allegany
County will promptly test the use of frequency 151.025 MHz at the locations specified in the STA
authorizations, and, if the tests prove successful, will amend its pending modification application
accordingly. During the testing period we expect Allegany County to share information with EMTA in
order to minimize the potential for disruption to EMTA's operations. We remind both Allegany County
and EMTA that under Commission rules "[a]ll applicants and licensees shall cooperate in the selection
and use of frequencies in order to reduce interference and make the most effective use of the authorized
facilities."48
20.
Furthermore, we emphasize that Allegany County is not required to obtain EMTA's
concurrence prior to amending its pending modification applications. However, any amendment to
Allegany County's pending modification applications must be coordinated by an FCC-certified frequency
coordinator pursuant to Section 90.175 of the Commission's rules.49 Should the parties reach a mutual
understanding on sharing frequency 151.025 MHz, Allegany County's amendment may reflect any
adjustments to its system the parties agree to, e.g., the use of tone squelch or other selective calling
equipment, reduced effective radiated power, use of directional antennas at Allegany's base stations, etc.
If the parties fail to reach an agreement, we instruct Allegany County to attach a statement to its pending
modification applications detailing its efforts to come to an agreement with EMTA.50

B.

Modification Applications.

21.
Section 90.173(b) of the Commission's rules provides that the Commission may deny the
use of any frequency at a given location if its use in that location is not in the public interest.51 As noted
above, Allegany County began operating on frequency 151.235 MHz above Line A without Canadian
approval, thereby causing harmful interference to a licensee in Canada. Moreover, Canada objects to
Allegany's proposal to operate on frequency 151.235 MHz. Based on the information before us, we
conclude that Allegany County's operation on frequency 151.235 MHz should cease in order to prevent
interference to stations operating on frequency 151.235 MHz in Canada. Accordingly, we direct
Allegany County to, no later than July 12, 2013: (1) discontinue operations on frequency 151.235 MHz;
(2) delete frequency 151.235 MHz from its pending modification applications and (3) substitute
frequency 151.025 MHz on its pending modification applications.
22.
If Allegany County fails to remove frequency 151.235 MHz from its pending
modification applications by July 12, 2013, Bureau staff will dismiss Allegany's pending applications.
Finally, we note that resolution of this issue in no way absolves Allegany County of its unauthorized
operations above Line A during the pendency of its modification applications. The Bureau may refer this
matter to the Commission's Enforcement Bureau for further investigation and potential sanctions.


46 Licensees who have exclusive use of a frequency are denoted with a station class code of FB8. EMTA, however,
is licensed on frequency 151.025 MHz with a station class code of FB2. See license WQFA896.
47 47 C.F.R. 90.20.
48 47 C.F.R. 90.173(b).
49 47 C.F.R. 90.175.
50 Allegany County's frequency coordinator may attach a statement with the application noting its policy for seeking
letters of concurrence from co-channel licensees.
51 47 C.F.R. 90.173(b).
6

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IV.

ORDERING CLAUSES.

23. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), and Sections 1.41 of the Commission's Rules, 47 C.F.R. 1.41, 1.106,
that the Petition to Deny filed May 16, 2013 by Endless Mountains Transportation Authority IS
DISMISSED as an unauthorized pleading.
24. IT IS FURTHER ORDERED, that the Petition to Deny, filed May 16, 2013 by Endless
Mountains Transportation Authority, treated as an informal request for Commission action under Section
1.41 of the Commission's rules, 47 C.F.R. 1.41, IS DENIED.
25. IT IS FURTHER ORDERED that requests for Special Temporary Authority, FCC File Nos.
0005775375 and 0005778896, filed by the Allegany County Emergency Services SHALL BE
GRANTED consistent with this Order and the Commission's Rules.
26. IT IS FURTHER ORDERED that Allegany County Emergency Services SHALL MODIFY
its pending modification applications, FCC File Nos. 0004666772 and 0004666773, by deleting
frequency 151.235 MHz and substituting frequency 151.025 MHz no later than July 12, 2013.
27. IT IS FURTHER ORDERED that applications, FCC File Nos. 0004666772 and 0004666773
SHALL BE DISMISSED if Allegany County Emergency Services fails to amend these applications as
directed.
28. This action is taken under delegated authority granted pursuant to Sections 0.131(a) and
0.331 of the Commission's Rules, 47 C.F.R. 0.131(a), 0.331.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau
7

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