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Del Norte County, CA Narrowbanding Waiver Request

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Released: July 28, 2014
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Federal Communications Commission

DA 14-1067

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Del Norte County, California

)

WT Docket 99-87

)

Request for Waiver of Section 90.209(b) of the

)

Commission’s Rules

)

)

ORDER

Adopted: July 28, 2014

Released: July 28, 2014

By the Chief, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION

1.

We have before us a request for a permanent waiver of the Commission’s VHF/UHF

narrowbanding rule filed by Del Norte County, California (Del Norte or the County).1

The

narrowbanding rule requires private land mobile radio licensees operating in the 150-174 MHz and 450-

512 MHz bands to operate using channel bandwidth of no more than 12.5 kHz or equivalent efficiency

after January 1, 2013.2 By this Order, we deny the waiver request.

II.

BACKGROUND

2.

Del Norte County is located in Northern California at the Oregon border along the Pacific

coast. It has a land area of approximately 1007 square miles with a population of about 30,000 people.3

In 2012, Del Norte converted its VHF system to narrowband operation, and it is currently in compliance

with the rule. However, Del Norte states that as a result of narrowbanding its system, it has experienced a

40 percent loss of coverage in its operational area.4 The County states it has worked with its vendor and

Commission staff to ensure that its existing equipment is operating at optimum efficiency, but that these

improvements have not restored the system’s coverage that existed prior to narrowbanding.5 Del Norte

states that the lack of coverage caused by narrowband operation in compliance with the Commission’s

1 Letter, dated June 19, 2013, from Sheriff Dean D. Wilson (Waiver Request).

2 47 C.F.R § 90.209(b). See Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as

Amended; Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies, Second Report and Order

and Second Further Notice of Proposed Rulemaking, WT Docket No. 99-87, RM-9332, 18 FCC Rcd 3034 (2003);

Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended; Promotion of Spectrum

Efficient Technologies on Certain Part 90 Frequencies, Third Memorandum Opinion and Order, Third Further

Notice of Proposed Rule Making and Order, WT Docket No. 99-87, RM-9332, 19 FCC Rcd 25045 (2004);

Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended; Promotion of Spectrum

Efficient Technologies on Certain Part 90 Frequencies, Order, WT Docket No. 99-87, RM-9332, 25 FCC Rcd 8861

(2010) (Narrowbanding Waiver Order).

3 Waiver Request.

4 Id.

5 Id.

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Federal Communications Commission

DA 14-1067

rules places its first responders at risk.6 Accordingly, Del Norte asks for a permanent waiver of the

narrowbanding rule allowing it to resume wideband operations and to operate in wideband mode

indefinitely.

3.

In support of its waiver request, Del Norte states that the only way for it to restore system

coverage while continuing to comply with the narrowbanding rule would be to construct between three to

five additional towers to augment its existing two-tower system.7 Del Norte states that it lacks the

funding to undertake such an endeavor. 8 Del Norte also claims that it did not need to convert from

wideband to narrowband operations because there is no spectrum congestion in the County.9

III.

DISCUSSION

4.

The Commission initiated the narrowbanding process in 1995 to remedy congestion in

the UHF and VHF frequency bands, which limited the amount of spectrum available for system

expansion or implementation of new systems.10

The migration to 12.5 kHz efficiency technology requires

licensees to operate with greater spectral efficiency, either on narrower channel bandwidths or increased

voice paths on existing channels. This allows creation of additional channels within the same spectrum,

thereby supporting more users.

The efficient use of scarce VHF/UHF spectrum and freeing of capacity

for potential new spectrum uses are key goals of the narrowbanding program.11

5.

Del Norte seeks permanent relief from the narrowbanding rule pursuant to Section 1.925

of the Commission’s rules, which provides that 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;12 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.13 Applying this standard to narrowbanding, we have stated in the

Narrowbanding Waiver Guidance Notice, jointly issued by the Wireless Telecommunications Bureau, the

Public Safety and Homeland Security Bureau, and the Office of Engineering and Technology that

narrowbanding waiver requests “will be subject to a high level of scrutiny” under the waiver standard.14

6 Id.

7 Id.

8 Id.

9 Id.

10 See Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies

Governing Them, Report and Order and Further Notice of Proposed Rule Making, PR Docket No. 92-235, 10 FCC

Rcd 10076, 10077 ¶2 (1995). Narrowbanding is one of several initiatives the Commission instigated as part of its

efforts to address frequency congestion. See Spectrum Efficiency in the Private Land Mobile Radio Bands In Use

Prior to 1968, Notice of Inquiry, PR Docket No. 91-170, 6 FCC Rcd 4126, 4131-32 ¶¶40-44 (1995).

11 Id.

12 47 C.F.R. § 1.925(b)(3)(i).

13 47 C.F.R. § 1.925(b)(3)(ii).

14 Wireless Telecommunications Bureau, Public Safety And Homeland Security Bureau, And Office Of Engineering

And Technology Provide Reminder Of January 1, 2013 Deadline For Transition To Narrowband Operations In The

150-174 MHz And 421-512 MHz Bands And Guidance For Submission Of Requests For Waiver And Other

Matters, Public Notice, 26 FCC Rcd 9647 (2011) (Narrowbanding Waiver Guidance Notice).

2

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Federal Communications Commission

DA 14-1067

6.

The Bureau has granted temporary waivers of the narrowbanding rule to licensees that

have been able to demonstrate that “(i) they have worked diligently and in good faith to narrowband their

systems expeditiously; (ii) their specific circumstances warrant a temporary extension of the deadline; and

(iii) the amount of time for which a waiver is requested is no more than is reasonably necessary to

complete the narrowbanding process.”15 However, Del Norte seeks a permanent waiver of the rule, not a

temporary waiver.

7.

We conclude that Del Norte has not presented sufficient facts to support its request for a

permanent waiver. We recognize the financial constraints Del Norte faces to construct additional towers,

but this circumstance is not unusual or unique among licensees that have been subject to the

narrowbanding requirement. Thousands of public safety licensees have converted their systems to

narrowband operation, and many of them have had to enhance system infrastructure as part of their

conversion. While Del Norte’s financial constraints could weigh in favor of a temporary waiver to afford

the County additional time to upgrade its system, they do not justify a permanent waiver.

8.

Similarly, we are not persuaded by Del Norte’s argument that a permanent waiver is

justified because it is not in a spectrally congested area. This argument presupposes that the lack of

spectral congestion is a permanent condition and that other parties will never seek access to spectrum

there. We are not prepared to make this assumption, which would undermine the underlying purpose of

the narrowbanding rules to ensure that additional spectrum is available for future use – including for use

that may not be anticipated.

9.

Del Norte also fails to demonstrate how a permanent waiver would serve the public

interest, in light of the fact that the Commission’s rules prohibit the manufacture, marketing and sale of

wideband-capable equipment.16 The Commission adopted these equipment restrictions to prevent the

development and sale of equipment whose use would negate any spectral efficiencies gained through

narrowbanding. Even if we were to allow Del Norte to operate in wideband mode indefinitely, these

restrictions would prevent the County from being able to properly maintain or replace its equipment, and

as a result its system would become increasingly less reliable as well as progressively more obsolete. We

fail to see how such a situation would serve the public interest. For all of the above reasons, we deny the

request for a permanent waiver.

IV.

ORDERING CLAUSES

10.

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(b)(3) of the Commission’s rules, 47 C.F.R.

§ 1.925(b)(3), that the Request for Waiver, filed by the Del Norte County, California IS DENIED.

11.

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

David G. Simpson, Rear Admiral, USN (Ret.)

Chief, Public Safety and Homeland Security Bureau

15 Id. at 9649.

16 See 47 C.F.R. § 90.203(j)(10).

3

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