Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Order Dismissing BayRICS STA Request Without Prejudice

Download Options

Released: September 20, 2012

Federal Communications Commission

DA 12-1521

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Implementing Public Safety Broadband Provisions )
PS Docket No. 12-94
of the Middle Class Tax Relief and Job Creation )
Act of 2012
)
)
Service Rules for the 698-746, 747-762 and 777- )
WT Docket No. 06-150
792 MHz Bands
)
)
Implementing a Nationwide, Broadband,
)
PS Docket No. 06-229
Interoperable Public Safety Network in the 700
)
MHz Band
)

ORDER

Adopted: September 20, 2012

Released: September 20, 2012

By the Chief, Public Safety and Homeland Security Bureau.

I.

INTRODUCTION

1.
The Middle Class Tax Relief and Job Creation Act of 2012 (Public Safety Spectrum
Act),1 enacted February 22, 2012, creates the First Responder Network Authority (FirstNet) and directs it
to establish a nationwide public safety broadband network spanning the 700 MHz D Block (758-763/788-
793 MHz) and the public safety broadband spectrum (763-768/793-798 MHz).2 On July 31, 2012, the
Federal Communications Commission (Commission) released an order (STA Order) that provides for
limited deployment in the latter spectrum under Special Temporary Authority (STA) as FirstNet gains its
footing.3 The STA Order identifies a number of public interest considerations likely to be relevant in
evaluating applications for STA filed by public safety entities seeking to operate in the spectrum during
this transitional period. The Public Safety and Homeland Security Bureau (Bureau) is directed to grant
any such complete requests “that present a compelling basis for relief as articulated in [the STA Order].”4
The Bureau has previously considered one such request from the State of Texas and, after finding such a
basis for a relief demonstrated, granted the STA as requested.5
2.
The Bureau has before it an STA request from the Bay Area Regional Interoperable
Communications System Authority (BayRICS) filed in the Bureau’s Universal Licensing System (ULS)


1 See Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156 (2012).
2 See id. §§ 6204, 6206.
3 See Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of
2012, PS Docket No. 12-94, Order, FCC 12-85 (rel. July 31, 2012) (STA Order).
4 Id. at 13-14 ¶ 28.
5 See Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of
2012, (PSHSB rel. Aug. 31, 2012) (Texas STA Order) granting STA for a deployment in Harris County, Texas.

Federal Communications Commission

DA 12-1521

on August 21, 2012.6 BayRICS substantially amended its application on September 7, 2012, to
supplement information in its application with respect to two factors: deployment prior to the Public
Safety Spectrum Act and ability to deliver timely service.7 As the STA Order contemplates, BayRICS
requests an STA for a period of 180 days to operate a public safety broadband network within “the
geographical scope and jurisdictional limits of BayRICS local government member agencies.”8 As
explained in more detail below, we find that the BayRICS request is deficient in key areas with respect to
the public interest considerations identified by the Commission, such that we cannot find that
extraordinary circumstances have been demonstrated meriting the grant of an STA. Accordingly, we
deny the request.

II.

DISCUSSION

3.
The STA Order provides that applications for STA to operate public safety broadband
networks in the public safety broadband spectrum shall be held to “a rigorous standard ‘involving
circumstances which are of such extraordinary nature that delay in the institution of temporary operation
would seriously prejudice the public interest.’”9 To further clarify this standard, the Commission
identified a number of considerations likely to be supportive of a finding that grant of an STA would
serve the public interest in a particular case. These include whether there has been substantial
deployment prior to the enactment of the Public Safety Spectrum Act, the ability to deliver timely service
(including ready availability of funding), demonstration of a specific public safety need, compliance with
the “minimum technical recommendations” of the Technical Advisory Board for First Responder
Interoperability, and coordination with the state in which the applicant seeks to operate.10 In light of the
Commission’s obligation under the Public Safety Spectrum Act to “facilitate the transition” to FirstNet
(whose Board of Directors has now been appointed11) of the spectrum currently sought by BayRICS, the
Commission carefully tailored its STA approach “to permit only limited incremental investments that are
needed to allow the realization of the substantial amount of effort and deployment to date, that will
deliver near-term public safety benefits that cannot be substantially achieved by existing services, and
that do not jeopardize the interoperability goals for FirstNet that form the centerpiece of the Public
Safety Spectrum Act regime.”12
4.
The Commission thus cautioned that applications that fail to demonstrate “several stages
of important deployment milestones” would not be viewed favorably.13 In particular, those that have not
ordered, received and deployed equipment, completed site preparation or completed similar activities


6 See Application for Special Temporary Authority of the Bay Area Regional Interoperable Communications
System Authority, Universal Licensing System File No.0005358161 (filed Aug. 21, 2012) (STA Justification).
7 Id. (Amended STA Justification).
8 STA Justification at 1.
9 See STA Order at 10 ¶ 23 (citing Section 1.931(b)(2)(v) of the Commission’s rules, 47 C.F.R. § 1.931(b)(2)(v)).
10 Id. at 12-13 ¶ 25.
11 See Acting U.S. Commerce Secretary Rebecca Blank Announces Board of Directors for the First Responder
Network Authority, Press Release (Aug. 20, 2012), available at http://www.commerce.gov/news/press-
releases/2012/08/20/acting-us-commerce-secretary-rebecca -blank-announces-board-directors- (last visited Aug.
31, 2012).
12 STA Order at 10 ¶ 22.
13 Id. at 10-11 ¶ 23.
2

Federal Communications Commission

DA 12-1521

would not meet the Commission’s standards.14 “Early-stage” preparatory efforts such as developing a
site plan or selecting a vendor would also be considered insufficient.15
5.
BayRICS’ application and amended application seek to address each of the STA Order’s
articulated considerations. We focus, however, on those considerations that we find to be insufficient
such that a grant of an STA is not justified.
6.
Significant Deployment Prior to Enactment of the Act. In the STA Order, the
Commission found that a consideration in assessing whether to grant an STA would include a finding of
a “pattern of sustained investment, both monetary and in terms of planning and construction, including
whether applicants have significantly deployed their network prior to the Public Safety Spectrum Act’s
enactment on February 22, 2012.”16 The Commission directed the Bureau to assess in particular “funding
obtained, contracts entered into for network construction and deployment, equipment purchased and
delivered, sites identified and towers placed, engineering analyses performed, infrastructure actually
deployed in the field, and coordination carried out at the statewide and regional level.”17
7.
With respect to these considerations, BayRICS fails to support a showing of
extraordinary circumstances.18 In particular, BayRICS acknowledges that no LTE equipment for this
project has been purchased, delivered or installed, and no infrastructure has been actually deployed in the
field.19 BayRICS also acknowledges that an agreement has yet to be finalized with an LTE equipment
vendor.20 Instead, BayRICS asserts that, but for the partial suspension by NTIA of grant funds allocated
to the purchase and installation of LTE equipment, such equipment purchase and installation would have
occurred in April 2012.21 The fact remains, however, that none of the deployment that BayRICS
identified as necessary to undertake was accomplished before or even after enactment of the Public
Safety Spectrum Act, and no contract was finalized. Accordingly, we cannot find that this criterion has
been met. We also note that there were considerable delays in establishing the Joint Powers Agreement
(JPA), a necessary prerequisite to entering into the “BOOM” agreement with Motorola to “build, own,
operate and manage” the network, which separately contributed to BayRICS’ failure, to date, to have
ordered or deployed equipment and infrastructure.22


14 Id.
15 Id.
16 Id. at 12 ¶ 25.
17 Id.
18 47 C.F.R.§ 1.931(b).
19 STA Justification at 9, 11. Amended STA Justification at 3-4 (noting that “Equipment purchased and delivered”
and “Infrastructure actually deployed in the field” were at “0%”).
20 Amended STA Justification at 3. BayRICS states that a vendor agreement was “90%” completed as of
enactment of the Act. However, an agreement was not, and has not been, signed. Id.
21 Id. at 3-4.
22 The JPA established the BayRICS Authority, which consists of Bay Area jurisdictions intending to participate in
the BayWEB project, including the Counties of Alameda, Contra Costa, San Francisco, San Mateo, Santa Clara,
and Sonoma; the Cities of San Francisco, and Oakland; the East Bay Hub; and the State of California. The
BayRICS Authority was established only after a dispute among the original waiver jurisdictions regarding the legal
authority of certain parties to act on behalf of those seeking to deploy in the San Francisco Bay Area. See, e.g.,
City and County of San Francisco, the City of Oakland and the City of San Jose, Request for Waiver of the
(continued….)
3

Federal Communications Commission

DA 12-1521

8.
BayRICS further asserts that Motorola has spent almost $5 million in BTOP grant money
and matching funds on the project, with BayRICS member organizations investing $1 million as well as
in-kind resources and project support efforts including substantial amounts of staff time.23 According to
Motorola’s estimates, however, these monetary expenditures to date are less than 10% of projected
overall costs.24 This is thus not a case in which only “limited incremental investments” remain to
“deliver near-term public safety benefits” as contemplated in the STA Order.25
9.
BayRICS asserts that its project does not “bear ready comparison” to the Texas
deployment, which reflected substantial deployment prior to the enactment of the Public Safety Spectrum
Act,26 because the BayRICS project is much larger in area, sites and complexity, as well as “risk of
stranded investment.”27 We agree with BayRICS that we must compare each STA application to the
criteria the Commission put forth, and determine how each measures against those considerations on a
case-by-case basis. Those criteria do not include mere size or scope of potential risk. Rather, as we
pointed out in the Texas order, the Commission emphasized the importance of evidence of substantial
deployment, and here we find the lack of deployment and the large scale of investment still required to be
made from BTOP funds versus the comparatively limited investment made from those funds overall to
date to be significant.
10.
In sum, we find based on the existing record that there has not been substantial network
deployment by BayRICS on the scale warranting a grant of an STA, either prior to or after the Act. The
lack of any such substantial deployment indicates that BayRICS has failed to satisfy its burden of
demonstrating that this STA would be necessary in facilitating the transition to FirstNet, and indeed such
STA might hinder FirstNet’s ability to exercise its statutory obligations in the Bay Area.28
11.
Ability to Deliver Timely Service. Among the considerations to assess whether an STA
applicant could deliver timely service, the Commission directs the Bureau to consider “whether funding
is readily available to support network deployment and operation of the scope contemplated in that
(Continued from previous page)


Commission’s Rules to Deploy a 700 MHz Interoperable Public Safety Broadband Network, PS Docket No. 06-
229 (filed Dec. 23, 2011) (detailing the history of the efforts and early deployment, the disputed authority, and the
formation of the JPA/BayRICS Authority more than a year after the award of the BTOP grant to Motorola).
23 Amended STA Justification at 5.
24 See Motorola Quarterly Progress Report for Broadband Infrastructure Projects at 7, available at
http://www2.ntia.doc.gov/files/grantees/nt10bix5570089_motorola_solutions_inc_ppr2012_q2.pdf (last visited
Sept. 17, 2012) (assessing overall project costs at approximately $72.5 million, with federal grants accounting for
approximately $50.6 million). Whatever progress BayRICS may have made with respect to identifying or securing
rights to potential sites and towers even after February 22, 2012, still leaves it with the overwhelming majority of
costs yet to incur and far short of significant deployment.
25 STA Order at 10 ¶ 22. BayRICS itself characterizes its project status as “getting to the point of near
deployment” rather than “near completion” as contemplated by the STA Order. See Amended STA Justification at
5.; STA Order at 10 ¶ 22.
26 At the time of the Act’s enactment, Harris County not only had the relevant equipment contract in place, but also
had six eNodeBs fully operational with an additional three towers with RF antennas and backhaul equipment
installed. See Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation
Act of 2012, Texas STA Order at 3 ¶ 6,); State of Texas, Universal Licensing System, File No. 0005346762 (Aug.
9, 2012), Amended Application (Aug 28, 2012), Amended STA Narrative at 1.
27 Amended STA Justification at 5.
28 STA Order at 11 ¶ 23.
4

Federal Communications Commission

DA 12-1521

application (including whether any federal agency that administers the funds upon which an STA
applicant intends to rely supports the application), and whether deployment is reasonably likely to
commence for the benefit of public safety users well in advance of FirstNet’s offering.”29 Even if
BayRICS had demonstrated that it had satisfied the Commission's criterion of significant deployment, we
believe that in these circumstances, where the applicant would require such an extensive period of time
to initiate service, this second factor would independently require dismissal of its application.
12.
In the first instance, irrespective of the availability of funding, the timeframe BayRICS
provides for deployment reasonably indicates that it cannot provide “near term” services to public
safety.30 BayRICS estimates that it would still require at least fifteen months to become operational after
it receives the grant money from NTIA, a period far outside the term of the authorization it seeks.31 In
fact, it would take at least two renewals of any STA authorization32 before BayRICS would be prepared
to deploy, and even that assumes that NTIA funds would be made available immediately, for which there
is no guarantee. By way of contrast, at the time of Texas’s STA application in July of 2012, some
operations had already commenced in Harris County pursuant to Texas’s waiver, and Texas estimated
that operations pursuant to an STA for 14 sites would commence by September 15, 2012 (a matter of
weeks).33 In our view, the length of time cited by BayRICS does not illustrate that service would be
provided quickly.34 Nor do we find it “reasonably likely” that BayRICS would be able to commence
deployment for the benefit of public safety users well in advance of FirstNet’s offering service, even if
FirstNET’s deployment may take some time.35 In fact, we find that this extended time horizon for
deployment is further evidence that the other efforts that BayRICS cites in support of its application
were, in fact, merely preparatory. Accordingly, we find that BayRICS has failed to demonstrate that it is
capable of delivering timely service.
13.
Moreover, BayRICS’ ability to deliver any service is also contingent on NTIA’s lifting
the partial suspension of the BTOP funds awarded to Motorola.36 How soon and whether BayRICS can
deploy at all depends on obtaining necessary funding, which it currently does not have available. On this
point, BayRICS suggests that the Commission’s consideration of funding has placed it in a “potential
‘catch-22’”[sic] situation, whereby the Commission will not be satisfied unless NTIA releases funds and
NTIA “will not release funds without additional evidence of spectrum rights,” which it argues the STA
would provide.37 That is not so; If BayRICS had provided evidence of NTIA’s current support of its
application and intent to release funds upon grant of an STA, we would have been satisfied that funding
was timely available from this source for purposes of this particular criterion.
14.
Absent support from NTIA or submission of any explanation of NTIA’s position since


29 Id. at 12 ¶ 25.
30 Id. at 11-12 ¶¶ 23, 25.
31 STA Justification at 7.
32 Id.
33 State of Texas, Universal Licensing System, File No. 0005346762 (Aug. 9, 2012), Amended Application (Aug
28, 2012), Amended STA Narrative at 2.
34 STA Order at 11 ¶ 25.
35 Id. at 12 ¶ 25.
36 STA Justification at 7.
37 Amended STA Justification at 4.
5

Federal Communications Commission

DA 12-1521

the Commission’s July 31 Order pursuant to which this application was submitted, BayRICS urges the
Commission to accept an earlier memorandum dated July 20, 2012, from NTIA “as evidence to NTIA’s
intent to release the suspended funds.”38 The memorandum states in part that a portion of the BTOP
award to Motorola upon which BayRICS is relying will “remain on suspension until [Motorola] is
granted long term access to the 700 MHz public safety broadband spectrum.”39 The NTIA memorandum
was written before the Commission articulated the factors outlined in the July 31 STA Order, before the
Commission set forth its expectation with respect to renewal of STAs in light of FirstNet’s preferences,40
and before BayRICS applied for the instant STA. As such, it does not in our view provide evidence that
NTIA “supports the application,” or that the money will be available and the project can proceed in a
timely fashion, as NTIA could not when the memorandum was written have supported an application that
had not yet been submitted and that is governed by Commission standards that had yet to be established.
As of July 20, therefore, NTIA had no opportunity to make relevant comments about the use of this
spectrum as set forth in subsequent Commission orders.41
15.
The goal of the Commission in the STA Order was to accommodate the mandate of the
Public Safety Spectrum Act to “facilitate the transition” of this spectrum for the use of FirstNet, while
preserving the potential benefits of prompt early deployments that could be of use to FirstNet as a test
bed without jeopardizing its role in designing, constructing, and managing a nationwide public safety
broadband network. The Commission also noted that it would accord “considerable weight” in the future
to the views of FirstNet in its assessment of these relative costs and benefits.42 While support by FirstNet
with respect to deployment by BayRICS could therefore be a significant factor, FirstNet, whose Board
has only recently been appointed, has not provided any such views to date. In these circumstances, and
in light of the foregoing deficiencies, we find that BayRICS’ request fails to present “a compelling basis
for relief” consistent with the terms of the STA Order. Accordingly, we deny BayRICS’ request for relief
and direct the Licensing Branch of the Bureau’s Policy and Licensing Division to dismiss the pending
ULS application associated with this request without prejudice.

III.

ORDERING CLAUSE

16.
Accordingly, IT IS ORDERED that pursuant to sections 1, 4(i), 301, 303, and 332 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 301, 303, and 332, and Section
6201(c) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156
(2012), THIS ORDER in PS Docket No. 12-94, WT Docket No. 06-150, and PS Docket No. 06-229 is
ADOPTED.
17.
IT IS FURTHER ORDERED that the Licensing Branch of the Policy and Licensing
Division SHALL DISMISS the pending application for Special Temporary Authority filed by BayRICS,
Universal Licensing System File Number 0005358161, without prejudice.


38 Id.
39 Amended STA Justification at Attachment 1.
40 STA Order at 14 ¶ 29.
41 Id. at 12 ¶ 25.
42 Id. at 14 ¶ 29.
6

Federal Communications Commission

DA 12-1521

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, and paragraph 28 of the STA Order, FCC 12-85 (rel.
July 31, 2012).
FEDERAL COMMUNICATIONS COMMISSION
David S. Turetsky
Chief, Public Safety and Homeland Security Bureau
7

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.