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Denies waiver of Wave 4 U.S.-Canada Border Application Freeze

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Released: November 2, 2012

Federal Communications Commission

DA No. 12-1762

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

GEAUGA COUNTY SHERIFF’S OFFICE
)
File Nos. 0005111586 and 0005111590
)
Petition for Reconsideration and Request for
)
Waiver of the Wave 4 Freeze on New Applications )
in the U.S.–Canada Border Region
)

ORDER

Adopted: November 2, 2012

Released: November 2, 2012

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

I.

INTRODUCTION

1.
On March 9, 2012, the Geauga County Sheriff’s Office (Geauga County) submitted two
applications1 requesting multiple frequency pairs in the 800 MHz band throughout the County of Geauga,
Ohio. The Commission’s Public Safety and Homeland Security Bureau (Bureau) dismissed Geauga
County’s applications, without prejudice, on August 16, 2012 for failure to request a waiver of the freeze
on applications along the U.S.–Canada border.2 Geauga County now seeks reconsideration of the
dismissal of the applications and requests a waiver of the border area freeze.3 For the reasons stated
herein, we deny the petition for reconsideration and waiver request.

II.

BACKGROUND

2.
In 2004, the Commission reconfigured the 800 MHz band to eliminate interference to
public safety and other land mobile communication systems operating in the band.4 To keep control over
the spectral environment during this reorganization, the Commission placed a freeze on applications for
any new or modified 800 MHz licenses as it implemented rebanding on a regional basis.5


1 See FCC File Nos. 0005111586 and 0005111590 (filed March 9, 2012).
2 Notice of Dismissal Ref. No.5428086 (dated Aug. 16, 2012) re FCC File No. 0005111586 and Notice of
Dismissal, Ref. No. 5428087 (dated Aug. 16, 2012) re FCC File No. 005111590.
3 Petition for Reconsideration filed by Geauga County Sheriff’s Office (Aug. 20, 2012) at 1 (Geauga Petition) re
FCC File Nos. 0005111586 and 0005111590.
4 See Improving Public Safety Communications in the 800 MHz Band, Report and Order, WT Docket No. 02-55, 19
FCC Rcd 14969 (2004) (800 MHz R&O).
5 800 MHz R&O at 15078 ¶ 204.

Federal Communications Commission

DA No. 12-1762

3.
In 2008, the Bureau established a reconfigured 800 MHz band plan in the U.S.–Canada
border regions in order to accomplish the Commission’s goals for band reconfiguration.6 Consistent with
the Commission’s approach to maintaining a stable spectrum environment during rebanding, the Bureau
established a freeze on new applications in the U.S.–Canada border regions.7 Specifically, the Bureau
stated that:
The freeze applies only to applications for new facilities or modification applications that involve
a change of frequency or expand a station’s existing coverage area. Applications that do not affect
frequency or coverage (e.g., administrative updates, assignments/transfers, and renewal-only
applications) are not subject to the freeze. In addition, licensees may seek Special Temporary
Authorization (STA) to expand their facilities or add channels during the freeze, based on an
appropriate showing of public interest need as described in the Bureau’s December 2006 STA
Guidance PN
.[8]
4.
Geauga County is located in NPSPAC Region 33 along the Canadian border and is
therefore subject to the freeze on new or modified license applications in the 800 MHz band.9 On March
9, 2012, Geauga County filed two new applications for 800 MHz frequencies in the border area. On
August 16, 2012, the Bureau dismissed the applications because Geauga County failed to request a waiver
of the application freeze.
5.
On August 20, 2012, Geauga County submitted a petition for reconsideration and a
request for waiver of the application freeze.10 Geauga County states that “[t]he waiver attached below
was originally attached to our application when we submitted it to the frequency coordinator
[International Municipal Signal Association].11 Geauga County adds that “it’s unknown why the


6 Improving Public Safety Communications in the 800 MHz Band, New 800 MHz Band Plan for U.S.–Canada
Border Regions, Second Report and Order, WT Docket No. 02-55, 23 FCC Rcd 7605 (PSHSB 2008) (Canada
Border R&O
).
7 Public Safety and Homeland Security Bureau Announces That the 30-Month Transition Period for 800 MHz Band
Reconfiguration in Regions Along the U.S.-Canada Border Will Commence on October 14, 2008, Public Notice,
WT Docket No. 02-55, 23 FCC Rcd 14877, 14878-9 (2008) (U.S.-Canada Border Rebanding PN). See also Public
Safety and Homeland Security Bureau Extends 800 MHz Application Freeze for Wave 4 Border Area NPSPAC &
Non- NPSPAC Licensees Along the U.S.–Canada Border, Public Notice, WT Docket No. 02-55, DA 12-1630
(PSHSB, Oct. 12, 2012).,
8 U.S.-Canada Border Rebanding PN at 14879, citing Public Safety and Homeland Security Bureau Provides
Guidance for Public Safety Licensees With Regard to License Application and Special Temporary Authorization
Procedures and Payment of Frequency Relocation Costs for Public Safety Facilities Added During 800 MHz Band
Reconfiguration, Public Notice, WT Docket No. 02-55, 21 FCC Rcd 14658 (2006).
9 See Canada Border R&O.
10 Geauga Petition.
11 Id.
2

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DA No. 12-1762

frequency coordinator removed the waiver from our application.”12 Geauga County requests that “the
Commission review our waiver and reconsider the dismissal of our applications.”13
6.
In its waiver request, Geauga County explains that the purpose of its applications is to
add frequency pair 809/854.0125 MHz to all its existing sites authorized under call signs WNGS649 and
WQNC532 and add this frequency to two new sites.14 Additionally, Geauga County seeks to “add all
post-rebanding frequencies currently authorized to WNGS649/WQNC532 to the same two new sites.”15
Geauga County states it also intends to move the current WNGS649 site to a new location a short distance
away and subsequently delete the former site from the WNGS649 license once the move is completed.16
7.
Geauga County argues that grant of its waiver request will not adversely impact other
licenses or the rebanding process.17 Specifically, Geauga County states “[t]he addition of two new sites
and the relocation of a third will have little impact to co-channel or adjacent channel users.”18 Geauga
County claims that “[c]overage plots indicate that our coverage and interference contours will have no
expansion.”19 Geauga County submits that ‘[t]he additional sites will improve in building coverage
within our currently authorized coverage area.”20 Geauga County also observes that “[t]he requested
additional channel is already licensed to the Sheriffs [sic] Office at a single site (WNZH919).”21 Geauga
County adds that “[c]overage plots indicate that our interference contours for the proposed application
will not impact co-channel users.”22
8.
Geauga County states that the Sheriff’s Office radio system has successfully completed
rebanding.23 Geauga County claims that “[t]he requested additional frequency of 854.0125 is not
impacted by rebanding in [Canadian Border Region 3] and is an appropriate post rebanding assignment
for our non-NPSPAC public safety system.”24 Geauga County reasons that “[s]ince the Sheriffs [sic]


12 Id.
13 Geauga Petition.
14 Request for Waiver.
15 Id.
16 Id.
17 Id. at 2.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
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DA No. 12-1762

Office already holds the authorization for 854.0125 at a single site this frequency will not be used as a
replacement frequency for any other system in the area that has not completed rebanding.”25 Finally,
Geauga County submits that “[t]he Sheriffs [sic] Office will not request or require any financial assistance
from Sprint/Nextel for the frequencies in the attached application.”26

III.

DISCUSSION

9.
The Bureau has reviewed Geauga County’s petition for reconsideration and concludes
that Geauga County fails to satisfy the requirements of Section 1.106(d) of the Commission’s rules.27
Under Section 1.106(d)(1), petitioners must “state with particularity the respects in which petitioner
believes the action taken by the Commission ... should be changed.”28 Section 1.106(d)(2) also requires
petitions for reconsideration to cite, where appropriate, “the findings of fact and/or conclusions of law
which petitioner believes to be erroneous, and shall state with particularity the respects in which he
believes such findings and conclusions should be changed.”29 Geauga County’s reconsideration petition
lacks such particulars. Geauga County does not request that the Commission make any changes in the
action dismissing Geauga County’s application, nor does it cite findings of fact or conclusions of law
which it believes to be erroneous. Instead, Geauga County argues that, but for IMSA’s unexplained
deletion of the waiver request from Geauga County’s application, it would have requested waiver of the
application freeze. Thus, Geauga County implicitly acknowledges that the Bureau correctly dismissed its
applications in the first instance.
10.
Section 1.925 of the Commission’s rules states 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 waiver
would be in the public interest;30 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.31 The applicant faces a high hurdle and must plead
with particularity the facts and circumstances that warrant a waiver.32
11.
Based on the record before us, we find that Geauga County has not demonstrated that it is
entitled to waiver relief. Considering the first prong of our waiver standard, Geauga County has failed to
show that strict application of the rule here would disserve or frustrate the underlying purpose of the


25 Id.
26 Id.
27 47 C.F.R. § 1.106(d).
28 47 C.F.R. § 1.106(d)(1).
29 47 C.F.R. § 1.106(d)(2).
30 47 C.F.R. § 1.925(b)(3)(i).
31 47 C.F.R. § 1.925(b)(3)(ii).
32 WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), aff’d, 459 F.2d 1203 (1973), cert. denied, 409 U.S.
1027 (1972) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968)); Birach
Broad. Corp., Memorandum Opinion and Order, 18 FCC Rcd 1414, 1415 (2003).
4

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DA No. 12-1762

freeze and that a grant of waiver would be in the public interest. The purpose of the licensing freeze is to
maintain a stable spectral status quo while rebanding is executed.33 Thus, the freeze applies to new
facilities or modification applications that involve a change of frequency or expand a station’s existing
coverage area.
12.
Here, Geauga County seeks to add a new frequency pair at multiple sites. Our staff
conducted its own analysis of Geauga County’s applications and determined that Geauga County’s
proposal would expand its coverage contours, contrary to Geauga County’s assertions. The staff
determined that the existing contour of Geauga County’s station, call sign WNZH919, does not cover the
new sites under file numbers 0005111586 and 0005111590. Additionally, the staff observed that Geauga
County’s own graphical representation of its contours shows its new sites are not contained within the
existing contour of call sign WNZH919.
13.
Geauga County also claims that there will be no adverse impact to the rebanding process,
but offers no independent support to bolster this assertion. In other cases we have given considerable
weight to a licensee obtaining concurrence from the TA that its applications will not impair rebanding. 34
However, Geauga County did not obtain the TA’s concurrence in connection with its waiver request and
has not otherwise shown that its plan will not disturb the spectral environment along the U.S.–Canada
border area in Region 33. Thus, Geauga County offers no proof that the underlying purpose of the freeze
would not be served or would be frustrated if applied here.
14.
The request also fails the second prong of our waiver standard. Geauga County does not
claim any unique or unusual circumstances that would render application of the freeze inequitable, unduly
burdensome, or contrary to the public interest or that it lacks reasonable alternatives. To the contrary,
Geauga County has the alternatives of seeking Special Temporary Authority to operate on these
channels,35 or it can resubmit its applications with concurrence from the TA in support of its waiver
request.36 Thus, based on the foregoing, we find that Geauga County failed to meet the Commission’s
waiver criteria. Accordingly, we deny Geauga County’s request for waiver of the 800 MHz application
freeze.

IV.

CONCLUSION

15.
We conclude that Geauga County has failed to make a sufficient showing that
reconsideration of the Bureau’s findings and conclusions in the Notice of Dismissal is warranted. In
addition, the waiver relief requested by the petitioner is inconsistent with the Commission’s waiver
standard. We therefore deny Geauga County’s petition for reconsideration and request for waiver.


33 See Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, Supplemental Order
and Order on Reconsideration,
19 FCC Rcd 25120, 25159 ¶ 87 (2004), citing 800 MHz R&O at 15078 ¶ 204.
34 See, e.g., State of Ohio, Order, 27 FCC Rcd 8251, 8253 (PSHSB 2012) (granting waiver of the Wave 4
application freeze, noting specifically that the TA submitted a letter of approval and concurrence that Ohio’s
application would not affect band reconfiguration along the Canadian Border Region).
35 800 MHz R&O at 15078 ¶ 204.
36 Applicants seeking a concurrence letter from the TA may email a PDF copy of their application to
AppReview@800TA.org.
5

Federal Communications Commission

DA No. 12-1762

V.

ORDERING CLAUSES

16.
Accordingly, IT IS ORDERED pursuant to Section 405 of the Communications Act of
1934, as amended, 47 U.S.C. § 405, and Section 1.106 of the Commission’s rules, 47 C.F.R. § 1.106, that
the Petition for Reconsideration filed by the Geauga County Sheriff’s Office on August 20, 2012 IS
DENIED.
17.
IT IS FURTHER 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, as amended, 47
C.F.R. § 1.925, that the Request for Waiver filed by the Geauga County Sheriff’s Office on August 20,
2012 IS DENIED.
18.
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
6

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