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CITY OF WEST PALM BEACH, FLORIDA

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Released: January 16, 2013

Federal Communications Commission

DA 13-68

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

CITY OF WEST PALM BEACH, FLORIDA
)
File No. 0005394330
)
Request for Waiver of the Commission’s Rules to
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Modify Conventional Public Safety Station
)
WNKD520
)

ORDER

Adopted: January 16, 2013

Released: January 16, 2013

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

I.

INTRODUCTION

1.
In this Order, we address the above-captioned application and waiver request filed by the
City of West Palm Beach, Florida (West Palm Beach) which proposes to add a new site to its license for
public safety station WNKD520.1 West Palm Beach seeks a waiver of the application procedures for
licensing spectrum vacated by Sprint Nextel Corporation (Sprint), i.e. it seeks to expand its use of
frequency 858.1125 MHz before the date the frequency becomes available for licensing through the
Commission’s Vacated Channel Search Engine (the date on which the channel would normally become
available for public safety use). For the reasons stated below, we deny West Palm Beach’s waiver request
and dismiss its application without prejudice. We advise West Palm Beach, however, that it may apply
for frequency 858.1125 MHz under the vacated spectrum application and licensing procedures beginning
on January 17, 2013.

II.

BACKGROUND

2.
West Palm Beach’s license for station WNKD520 “covers two radio channels whose
repeaters are located in the downtown area.”2 West Palm Beach states that the “two transmit frequencies
860.2125 MHz [and] 858.1125 MHz are assigned to Public Safety and used on a regular basis by Police
Officers.”3 West Palm Beach claims “the City’s layout has changed dramatically in the past 20 years,
showing a substantial growth in the Western communities.”4 It asserts that this growth necessitates
relocation of the two transmitters to a new tower site approximately six to seven miles west of the existing
location.5 West Palm Beach intends to make the new location the primary station location with the
existing location serving as a backup site should the new primary location fail.6 West Palm Beach
submits that there have been no transmission related issues since the channel was first activated at its


1 See Letter from the City of West Palm Beach to Federal Communications Commission (dated Mar. 5, 2012)
(Waiver Request) attached to FCC File No. 0005394330 (filed Sep. 14, 2012) re WNKD520.
2 Waiver Request at 1.
3 Id.
4 Id.
5 Id.
6 Id.

Federal Communications Commission

DA 13-68

current location in 2004.7 West Palm Beach states that it retained the Association of Public-Safety
Communications Officials-International, Inc. (APCO) to run a propagation study on the frequencies for
the new location because of a conflict with facilities licensed to Sprint Nextel Corporation.8 APCO
determined that 858.1125 MHz was not available for licensing at the new location.9
3.
As part of 800 MHz band reconfiguration, Sprint is required to vacate channels in stages
in the interleaved segment of the 800 MHz band as a function of rebanding progress in each NPSPAC
Region.10 Once vacated, former Sprint channels become available for licensing to eligible public safety
entities.11 The Public Safety and Homeland Security Bureau (Bureau) issues a public notice specifying
the date on which eligible entities may apply for Sprint-vacated channels.12 The Bureau maintains a
Vacated Channel Search Engine (VCSE) which eligible entities may use to search for available vacated
channels to license in their geographic area.13
4.
The channel West Palm Beach seeks to license (858.1125 MHz) is currently licensed to
Sprint on an Economic Area (EA) basis in BEA031 (Miami-Fort Lauderdale FL).14 The channel will
become available for licensing to public safety entities throughout Florida on January 17, 2013.15 Only
then will the Bureau begin accepting applications for licensing of Sprint-vacated channels in the 809.5-
8105/854.5-860 MHz (Channels 251-470) portion of the 800 MHz band16 Applications filed for channels


7 Id.
8 Id.
9 See Letter from Carol DiCaro, AFC Processor, APCO International, Inc., to FCC (dated Sept. 6, 2012) attached to
FCC File No. 0005394330.
10 Improving Public Safety Communications in the 800 MHz Band, Relinquishment By Sprint Nextel of Channels in
the Interleaved, Expansion, and Guard Bands, Order, 23 FCC Rcd 15966 (2008).
11 See 47 C.F.R. § 90.617(g). Vacated channels are exclusively available for licensing to public safety eligible
entities for three years after release and to public safety and Critical Infrastructure Industry eligible entities from
three to five years after release. After five years, vacated channels return to their original pool category. Id.
12 See 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, Public Notice, 23 FCC Rcd
18343 (PSHSB 2008) (Vacated Spectrum PN Round 1); Public Safety and Homeland Security Bureau Announces
Application and Licensing Procedures for Certain Channels Relinquished by Sprint Nextel Corporation in the 809.5-
815/854.5-860 MHz Band, Public Notice, 24 FCC Rcd 13236 (PSHSB 2009) (Vacated Spectrum PN Round 2);
Public Safety and Homeland Security Bureau Announces Application and Licensing Procedures for Certain
Channels Relinquished by Sprint Nextel Corporation in the 809.5-815/854.5-860 MHz Band, Public Notice, 25 FCC
Rcd 16038 (PSHSB 2010) (Vacated Spectrum PN Round 3); Public Safety and Homeland Security Bureau
Announces Application and Licensing Procedures For Channels in Non-Border Regions Relinquished by Spring
Nextel Corporation in the 809.5-815/854.5-860 MHz Band, WT Docket 02-55, Public Notice, DA 12-1839 (PSHSB
rel. Nov. 27, 2012) (Vacated Spectrum PN Round 4).
13 See Public Safety and Homeland Security Bureau and Wireless Telecommunications Bureau Establish New 800
MHz Vacated Channel Search Engine for Identifying Vacated Channels in the 800 MHz Interleaved Band That Will
Be Available for Licensing to Public Safety and Critical Infrastructure Industry Entities, Public Notice, 23 FCC Rcd
16481 (PSHSB, WTB 2008).
14 The BEA Economic Areas are delineated by the Regional Economic Analysis Division, Bureau of Economic
Analysis, U.S. Department of Commerce February 1995 and extended by the Federal Communications Commission,
62 FR 9636 (March 3, 1997).
15 Vacated Spectrum PN Round 4.
16 Id.
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Federal Communications Commission

DA 13-68

in the 809.5-815/854.5-860 MHz (Channels 251 – 470) portion of the band before January 17, 2013 will
be dismissed.17 West Palm Beach filed its license modification application on September 14, 2012, well
before the January 17, 2013 filing date, but requests a waiver to allow it to operate on frequency 858.1125
MHz at the new location specified in its license modification application. It acknowledges that the
requested modification will expand the station’s coverage “beyond the boundaries of its existing
incumbent channel footprint,”18 and understands that Sprint has not yet surrendered frequency 858.1125
MHz in the BEA031 market.19 Therefore, West Palm Beach requests a waiver.
5.
In support of its waiver request, West Palm Beach states that “incumbent has obtained
RPC [Regional Planning Committee] (Region 7) approval for this application, including licensing of
858.1125 MHz at Location 3.”20 It advises that it “will accept a conditional license on this frequency at
the requested location, pending Sprint’s surrender of the channels in the expanded coverage areas.”21
Finally, West Palm Beach states that “[g]rant of this waiver is in the public interest.”22

III.

DISCUSSION

6.
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 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, or the applicant has no reasonable alternative.23
7.
As noted above, the channel at issue will become available for licensing to public safety
entities throughout Florida on January 17, 2013. The Bureau issued a public notice announcing
application and licensing procedures for channels relinquished by Sprint. The Public Notice ensures that
all public safety entities have an equal opportunity to apply for vacated spectrum. By granting West Palm
Beach’s waiver request, however, we would frustrate the underlying purpose of the Public Notice.
Additionally, we find that West Palm Beach’s “substantial growth” over the last twenty years is neither a
unique nor unusual factual circumstance warranting that might otherwise warrant a waiver of the rules.
All public safety licensees in the region are likely affected by some varying amount of growth.
Furthermore, West Palm Beach has a readily available reasonable alternative; it may apply for frequency
858.1125 MHz on or after January 17, 2013. In sum, based on the information before us, we find that
West Palm Beach failed to satisfy the Commission’s waiver criteria. We therefore deny the waiver
request and dismiss the associated application without prejudice.

IV.

ORDERING CLAUSES

8.
Accordingly, IT IS ORDERED, 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,
that the Waiver Request filed by the City of West Palm Beach, Florida with respect to application FCC


17 Id.
18 Id.
19 Id.
20 Id.
21 Id
22 Id.
23 47 C.F.R. §§ 1.925(b)(3)(i-ii). On waiver standards generally, see Northeast Cellular Telephone Co. v. FCC., 897
F.2d 1164, 1166 (D.C. Cir. 1990) (“[A] waiver is appropriate only if special circumstances warrant a deviation from
the general rule and such deviation will serve the public interest.”) citing WAIT Radio v. FCC., 418 F.2d 1153,
1157-59 (D.C. Cir. 1969).
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Federal Communications Commission

DA 13-68

File No. 0005394330 IS DENIED.
9.
IT IS FURTHER ORDERED that the Policy and Licensing Division of the Public Safety
and Homeland Security Bureau SHALL DISMISS, WITHOUT PREJUDICE, application FCC File No.
0005394330 in accordance with this Order and the Commission’s rules.
10.
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 and Licensing Division
Public Safety and Homeland Security Bureau
4

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