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City and County of San Francisco Request for Waiver

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Released: June 27, 2013

Federal Communications Commission

DA 13-1455

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
CITY AND COUNTY OF SAN FRANCISCO
)
FCC File Nos. 0005765176, 0005765178
)
and 0005765185
Request for Waiver and Extended Implementation
)
for Trunked Public Safety Stations WQKE739,
)
WQKE988 and WQMJ646
)

ORDER

Adopted: June 27, 2013

Released: June 27, 2013

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

I.

INTRODUCTION

1. In this Order, we grant a request for waiver of Section 90.629 of the Commission's rules1
filed by the City and County of San Francisco (San Francisco) on May 3, 2013 seeking to increase the
extended implementation period for Trunked Public Safety Stations WQKE739, WQKE988 and
WQMJ646.2

II.

BACKGROUND

2.
In 2008, the Public Safety and Homeland Security Bureau (Bureau) announced the
availability of Sprint-vacated spectrum in the 809-809.5/854-854.5 MHz Band.3 In announcing the
availability of Sprint-vacated spectrum, the Bureau emphasized that, due to the limited availability of
these channels during the period of exclusive eligibility, "requests for extended implementation pursuant
to Section 90.629 of the Commission's rules will be subject to a high level of scrutiny and will not be
routinely granted."4
3. On April 21, 2009 and April 24, 2009, the Bureau authorized San Francisco to operate
facilities under call signs WQKE739 and WQKE988, respectively, using five Sprint-vacated 800 MHz
channels released pursuant to the Vacated Spectrum Public Notice.5 On August 24, 2010, the Bureau


1 47 C.F.R. 90.629. (Applicants requesting frequencies for either trunked or conventional operations
may be authorized a period of up to five (5) years for constructing and placing a system in operation in accordance
with certain criteria.)
2 See Request for Waiver of Section 90.629 - Extended Implementation Plan attached to File Nos. 0005765176,
0005765178 and 0005765185 (filed May 3, 2013)(Waiver Request).
3 Public Safety and Homeland Security Bureau Announces Application and Licensing Procedures for Channels
Relinquished by Sprint Nextel Corporation in the 809-809.5/854-854.5 MHz Band, WT Docket No. 02-55, Public
Notice
, 23 FCC Rcd 18343, 18344 (PSHSB 2008)(Vacated Spectrum Public Notice).
4 47 C.F.R. 90.629.
5 See FCC File Nos. 0003789143 (Mar. 27, 2009) and 0003799924 (Apr. 7, 2009). San Francisco is authorized to
operate on frequencies 809/854.1125 MHz, 809/854.2375 MHz, 809/854.3125 MHz, 809/854.3875 MHz, and
809/854.4625 MHz.

Federal Communications Commission

DA 13-1455

authorized San Francisco to operate facilities on 700 MHz public safety narrowband spectrum under call
sign WQMJ646.6
4. On March 24, 2010, San Francisco sought extended implementation for 800 MHz stations
WQKE739 and WQKE988.7 On April 16, 2010, the Bureau dismissed the extended implementation
applications for stations WQKE739 and WQKE988.8
5. On May 14, 2010, San Francisco filed a Petition for Reconsideration (Petition) arguing that
the project in which the Sprint-vacated spectrum will be used is funded, is on schedule to be completed in
approximately three years, and is essential for its public transportation system.9 In its Petition, San
Francisco noted that the new communications system will replace its existing T-Band system.10 The
Bureau granted San Francisco's reconsideration Petition on July 23, 2010 and authorized San Francisco's
extended implementation plan for stations WQKE739 and WQKE988. That extended implementation
authorization will expire on June 30, 2013.11 San Francisco's extended implementation deadline to
construct 700 MHz station WQMJ646 also expires on June 30, 2013.
6. San Francisco has filed two annual reports concerning the construction status of stations
WQKE739, WQKE988 and WQMJ646. In the first annual report, San Francisco reported that the San
Francisco Municipal Transportation Agency (SFMTA) was negotiating a contract with a vendor and
expected that final contract award would be made by August 2011.12 In the second annual report, San
Francisco stated that vendor contract negotiations were not concluded until March 2012 and that the
SFMTA Board had authorized contract award in April 2012. In its second report, San Francisco,
contemplated completing construction by May 2014.13
7. On May 3, 2013, San Francisco filed the instant request for waiver seeking a revised
extended implementation deadline of October 2, 2015 for stations WQKE739, WQKE988 and
WQMJ646.14 In its waiver request, San Francisco states that the "San Francisco Municipal
Transportation Agency . . . is in the final process of implementing the SFMTA Replacement Radio
System."15 San Francisco notes that "[t]his multifaceted communications network spans many different
frequency bands and communications networks working to provide efficient and effective voice and data


6 See FCC File No. 0004289701 (Jun. 21, 2010).
7 See FCC File Nos. 0004184946 and 0004184956 (Mar. 24, 2010).
8 See Notice of Dismissal Reference Nos. 4969993 and 4969994 dated April 16, 2010.
9 Petition for Reconsideration filed May 14, 2010 by the City and County of San Francisco.
10 Id. at 2-4.
11 See City and County of San Francisco, Order, 25 FCC Rcd 10057 (PSHSB 2010).
12 See Annual Report for stations licensed under WQKE739, WQKE988 and WQMJ646 (dated June 16, 2011)
attached to FCC File Nos. 0004773424, 0004773425 and 0004773408 (Jun. 20, 2011).
13 See Annual Report for stations licensed under WQKE739, WQKE988 and WQMJ646 (dated June 18, 2012)
attached to FCC File Nos. 0005266759, 0005266777 and 0005266784 (Jun. 18 2012).
14 As part of its waiver request, San Francisco included a master implementation schedule highlighting the various
licenses and applications that comprise the radio replacement project. For purposes of responding to San
Francisco's waiver request, we limit our decision to stations WQKE739, WQKE988 and WQMJ646.
15 Waiver Request at 1.
2

Federal Communications Commission

DA 13-1455

operations."16 It states that "due to the size, complexity, and budgeting for this system [it] is seeking to
modify its extended implementation ("EI") plan."17 Because construction of these stations "will exceed
the allowable 5year [implementation] schedule by just a few months," San Francisco states that "SFMTA
also seeks a waiver of [47 C.F.R. 90.629], and other applicable rules as required, in order to
successfully implement and cutover the entire SFMTA operation onto the new network."18
8. In support of its waiver request, San Francisco provides "the final program schedule, an
affirmation that these dates are contractually binding with the Prime Contractor [Harris Corporation], and,
further, confirmation that the Radio Replacement Program is fully funded."19 With regard to stations
WQKE739, WQKE988 and WQMJ646, San Francisco states that "SFMTA will begin onair operations
by December 2, 2013 and be completed by May 31, 2014."20 San Francisco submits that "500+ User
units" will be placed in service in May 2014.21 However, it does not anticipate that its system will fully
meet the channel loading requirements of Section 90.631(b) of the Commission's rules22 until October 2,
2015. It therefore requests a waiver of the "fiveyear limitation with final system construction
(infrastructure and limited subscriber unit testing) of May 31, 2014 and full user transition by October
2nd, 2015."23 Finally, San Francisco certifies that the project budget for the SFMTA Radio Replacement
project is fully funded ($116 million) and that over $13 million has been expended on the project to
date.24

III.

DISCUSSION

9.
To obtain a waiver of the Commission's rules, a petitioner must demonstrate either that: (i)
the underlying purpose of the rule(s) would not be served or would be frustrated by application to the
present case, and that a grant of the requested waiver would be in the public interest; or (ii) in view of
unique or unusual factual circumstances of the instant case, application of the rule(s) would be
inequitable, unduly burdensome or contrary to the public interest,25 or the applicant has no reasonable
alternative.26 As discussed below, we find that the arguments supporting grant of San Francisco's
extended implementation plan are persuasive and that the grant of the waiver request is warranted.


16 Id. at 1.
17 Id.
18 Id.
19 Id. at 6.
20 Id. at 7-8.
21 Id. at 5.
22 47 C.F.R. 90.631(b).
23 Id. at 7-8.
24 See id. at Appendix B: Letter to Michael J. Wilhelm, Deputy Chief, Policy and Licensing Division, Public Safety
and Homeland Security Bureau, FCC from Sonali Bose, Chief Financial Officer, San Francisco Municipal
Transportation Agency (dated Apr. 25, 2013).
25 47 C.F.R. 1.925(b)(3)(i).
26 47 C.F.R. 1.925(b)(3)(ii).
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Federal Communications Commission

DA 13-1455

10. San Francisco has committed to complete infrastructure construction, place more than 500
user units in service, and complete final system construction (infrastructure and limited subscriber unit
testing) by May 31, 2014. It requests, however, that it be given until l October 2, 2015 to complete
transition of all users to the new system, thereby to meet the channel loading requirements of Section
90.631(b) of the Commission's rules.27
11. We see no indication that San Francisco is "warehousing" the spectrum authorized under
station call signs WQKE739, WQKE988 and WQMJ646.28 Rather, San Francisco has shown to our
satisfaction that it will use that spectrum in a new regional system, and already has taken concrete steps
toward implementing it, e.g., developing an implementation schedule, awarding a contract, certifying
funding and expending substantial funds on this project. We therefore believe that the underlying purpose
of Section 90.629 preventing the warehousing of spectrum to the exclusion of other potential users
would not be frustrated by grant of the requested waiver until October 2, 2015.
12. The record reflects that San Francisco's overall goals are to satisfy SFMTA's voice, data
and capacity needs and replace its outdated system. We find that San Francisco has demonstrated that
these objectives are consistent with the public interest. Because denying the requested relief would have
serious implications on the proposed SFMTA regional system, we grant San Francisco its requested
extension relative to stations WQKE739, WQKE988 and WQMJ646.
13. San Francisco also states that it has two pending applications for 800 MHz non-NPSPAC
channels, file numbers 0005734398 and 0005734399, which have not yet been processed by the Bureau.
Each such application has, as an attachment, the instant waiver request. To the extent these two pending
applications are otherwise acceptable for filing, we will reach the request for extended implementation at
such time as the applications are processed.

IV.

ORDERING CLAUSES

14. Accordingly, pursuant to the authority of Section 4(i) of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i); and Sections 1.925 and 90.629 of the Commission's rules, 47 C.F.R.
1.925 and 90.629, the Request for Waiver of Section 90.629 and Extended Implementation Plan filed by
the City and County of San Francisco is GRANTED to the extent discussed herein.
15. IT IS FURTHER ORDERED that FCC File Nos. 0005765176, 0005765178 and
0005765185 SHALL BE PROCESSED to the extent described herein.
16. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the
Commission's rules, 47 C.F.R. 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief, Policy Division
Public Safety and Homeland Security Bureau


27 47 C.F.R. 90.631(b).
28 See 47 C.F.R. 90.629. See also Private Land Mobile Radio Rules, Part 90 Amended, PR Docket Nos. 79-191,
79-334, 79-107, 81-703, Second Report and Order, 90 FCC 2d 1281, 1300 (1982).
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