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San Diego Metropolitan Transit System and San Diego Transit Corporation

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Released: February 1, 2013

Federal Communications Commission

DA 13-132

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

SAN DIEGO METROPOLITAN TRANSIT
)
File No. 0005237845
SYSTEM AND SAN DIEGO TRANSIT
)
CORPORATION, CALIFORNIA
)
)

Request for Waiver of the 800 MHz Wave 4
)
Application Freeze Along the U.S./Mexico Border
)

ORDER

Adopted: February 1, 2013

Released: February 1, 2013

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

I.

INTRODUCTION

1.
On May 30, 2012, San Diego Metropolitan Transit System and the San Diego Transit
Corporation (collectively SDTC) filed the above-captioned application for new trunked public safety 806-
821/851-866 MHz stations, accompanied by a request for waiver of the Commission’s freeze on filing
new 800 MHz applications pending reconfiguration of the 806-824/851-869 MHz band (800 MHz band)
along the U.S./Mexico border (Wave 4 Freeze).1 For the following reasons, we deny the waiver request
and dismiss the application.

II.

BACKGROUND

2.
On April 2, 2012, the Board of Regents of the University of California San Diego (Board
of Regents) filed applications to cancel its licenses for Trunked Public Safety Stations WPAH209 and
WNBY265, La Jolla, California.2 The WPAH209 and WNBY265 licenses authorized conventional
Public Safety operations on frequency pair 811.4250/856.4250 MHz on Mt. Soledad in San Diego
County, California.3 The Commission’s licensing staff accepted the cancellations on April 3, 2012.4
3.
On May 30, 2012, SDTC filed the above captioned application proposing to operate on
the same frequency pair and from the same location previously authorized under the Board of Regent’s
cancelled licenses, as well as at four additional sites not previously authorized under the cancelled
licenses.5 SDTC proposes to operate its facilities in National Public Safety Planning Advisory Committee


1 Request for Waiver of Commission Rules by the San Diego Metropolitan Transit System (filed May 30, 2012)
(Waiver Request) attached to FCC File No. 0005237845 (filed May 30, 2012).
2 FCC File Nos. 0005145091 (re WPAH209) and 0005145121 (re WNBY265) (April 2, 2012).
3 The license for WNBY265 authorized mobile operations on frequency pair 811.4250/856.4250 MHz with a 56 km
radius around the Mt. Soledad site.
4 ULS Reference Nos. 5347294 (re WPAH209) and 5347290 (re WNBY265) Notice of License Cancellation (April
3, 2012).
5 Waiver Request at 11-12.

Federal Communications Commission

DA 13-132

(NPSPAC) Region 5 and requests a waiver of the current freeze on the acceptance of applications in that
region.6
4.
In the 800 MHz Report and Order, the Commission mandated reconfiguration of the
800 MHz band to eliminate interference to public safety communications in the band.7 To maintain a
stable spectral environment during reconfiguration of each NPSPAC region, the Commission imposed a
freeze on acceptance of new 800 MHz applications during reconfiguration.8 The application freeze was
in effect when SDTC filed its application9 and remains in effect currently.10
5.
SDTC seeks a license for frequency pair 811/856.4250 MHz to expand its Regional
Transit Management System (RTMS) and related radio service territory.11 SDTC claims that the
additional radio spectrum is required in order for SDTC to have unified command and control of its fleet
of 537 buses.12 Currently, SDTC states that only 236 buses are equipped with RTMS, creating a
significant gap in the communication and GPS capabilities of SDTC’s operations.13 SDTC adds that
frequency pair 811/856.4250 MHz “is uniquely situated to fulfill the needs of SDTC’s expanded RTMS
system while causing no interference to other existing licensees.”14 SDTC submits that the waiver request
“is in the public interest because it is necessary to maintain SDTC’s safe and efficient operations and to
allow SDTC to fulfill its designated emergency response and evacuation role during regional
emergencies.”15

III.

DISCUSSION

6.
We deny SDTC’s request for waiver of the Commission’s freeze on accepting new
applications in the 800 MHz band because it has not met either prong of the Commission’s standard for
granting waivers. 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;16 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.17


6 Waiver Request at 8-14.
7 In the Matter of Improving Public Safety Communications in the 800 MHz Band, Report and Order, WT Dkt
No. 02-55, 19 FCC Rcd 14969 (2004) (800 MHz Report and Order).
8 Id. at 15078, ¶ 204.
9 See Public Safety and Homeland Security Bureau Extends 800 MHz Rebanding Negotiation Period for Wave 4
Border Area NPSPAC and Non-NPSPAC Licensees Along the U.S.-Mexico Border, Public Notice, 27 FCC Rcd
3067 (PSHSB 2012).
10 Public Safety and Homeland Security Bureau Extends Voluntary 800 MHz Rebanding Negotiation Period for
Wave 4 Border Area NPSPAC and Non-NPSPAC Licensees Along the U.S.-Mexico Border Pending Establishment
of Negotiation Timetable, WT Docket No. 02-55, Public Notice, 27 FCC Rcd 7312 (PSHSB 2012).
11 Waiver Request at 1.
12 Id.
13 Id.
14 Id. at 2.
15 Id. at 1.
16 47 C.F.R. § 1.925(b)(3)(i).
17 47 C.F.R. § 1.925(b)(3)(ii).
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Federal Communications Commission

DA 13-132

7.
The 800 MHz application freeze was established to maintain a stable spectrum
environment during 800 MHz rebanding with exceptions only for incumbent public safety licensees that
demonstrate a legitimate need for an exception to the freeze.18 The freeze applies to all 800 MHz
frequencies that might be useful in rebanding, not just to those vacated in the course of reconfiguration.19
“Unlicensed spectrum held by the Commission is made available to the TA as replacement spectrum
during the reconfiguration process, whether that spectrum was unlicensed before initiation of a suspension
period or whether it became unlicensed during the suspension period upon cancellation of a license by
Sprint Nextel or any other licensee.”20 Further, the Region 5 area is highly congested and the band plan in
the area is constrained by the need to protect Mexican licensees.21
8.
Here, when the Board of Regents canceled its license, the spectrum associated with those
licenses was returned to the Commission and became part of its unlicensed 800 MHz spectrum inventory.
The TA has since reused the channel as a planned replacement channel for another licensee, thus
rendering the channel unavailable. Even if the frequency pair were available, SDTC’s application
expands the service and interference contours to a degree that it creates impermissible short-spacing to
another licensee also slated to use the channel as a replacement channel. The TA attempted to identify
another channel that could accommodate SDTC but without success. Accordingly, we find that grant of
SDTC’s waiver request and application would be contrary to the purpose of the Commission’s application
freeze in the 800 MHz band.
9.
We also find that SDTC has not demonstrated that application of the freeze would be
inequitable, unduly burdensome and contrary to the public interest. SDTC claims that there is “no end is
in sight” to the application freeze.22 We observe that circumstances in Region 5 have changed. Less than
two weeks after SDTC filed its application, the Commission concluded negotiations to modify the
spectrum-sharing agreements between the United States and Mexico, thereby adopting a revised band
plan for the border region.23 Two months later, the Public Safety and Homeland Security Bureau
(Bureau) initiated a proceeding to establish a rebanding timeline for the region.24


18 See 800 MHz Report and Order, 19 FCC Rcd at 15078 ¶ 204; Improving Public Safety Communications in the
800 MHz Band, WT Dkt No. 02-55, Supplemental Order and Order on Reconsideration, 19 FCC Rcd 25129,
25158-59 ¶ 87 (2004); Wireless Telecommunications Bureau Outlines Application Freeze Process for
Implementation of 800 MHz Band Reconfiguration, WT Docket 02-55, Public Notice, 20 FCC Rcd. 8905 (WTB
2005).
19 See Third District Enterprises, Order, 27 FCC Rcd 1980, 1985 ¶ 13 (WTB 2012).
20 Id. at 1985 ¶ 14.
21 Id. at 1985-1986 ¶ 14.
22 Waiver Request at 3.
23 See Protocol Between the Department of State of the United States of America and the Secretariat of
Communications and Transportation of the United Mexican States Concerning the Allotment, Assignment and Use
of the 806-824/851-869 MHz and 896-901/935-940 MHz Bands for Terrestrial Non-Broadcasting
Radiocommunication Services Along the Common Border (June 8, 2012) (Amended Protocol).
24 On August 7, 2012, the Bureau released a Notice of Proposed Rulemaking seeking comment on proposals for
establishing and implementing the reconfigured 800 MHz channel plan in the Wave 4 NPSPAC regions that fall
within the Mexico border. Improving Public Safety Communications in the 800 MHz Band/New 800 MHz Band
Plan for U.S. - Mexico Sharing Zone, WT Docket No. 02-55, Fourth Further Notice of Proposed Rulemaking, 27
FCC Rcd 9563 (PSHSB 2012).

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Federal Communications Commission

DA 13-132

10.
Finally, we reject SDTC’s argument that the Commission must grant its waiver because
the Commission has granted waiver requests “on a much lower showing of public interest.”25 In support
of its argument, SDTC cites several decisions in which the Commission staff purportedly granted waivers
without any discussion of the Commission’s 800 MHz rebanding freeze.26 SDTC’s reliance on those
cases is misplaced. In the majority of those cases, the relevant Wave 1 or Wave 2 non-NPSPAC
application freeze expired before the staff decision.27 In the one case addressing the Wave 4 Freeze, we
note that (1) the TA did not reuse the spectrum at issue as a replacement channel and (2) the applicant did
not impermissibly short-space a relocating co-channel licensee.28 Based on the foregoing, we conclude
that grant of SDTC’s requested waiver is not warranted. Accordingly, we deny SDTC’s request for
waiver of the Commission’s Wave 4 Freeze.

IV.

ORDERING CLAUSES

11.
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 of Commission Rules, filed on May 20, 2012, by the San
Diego Metropolitan Transit System and the San Diego Transit Corporation IS DENIED.
12.
IT IS FURTHER ORDERED that the Policy and Licensing Division of the Public Safety
and Homeland Security Bureau SHALL DISMISS application FCC File No. 0005237845 in accordance
with this Order and the Commission’s rules.
13.
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


25 Waiver Request at 9-11.
26 Id. citing Ameren Services Co., Order, 25 FCC Rcd 12596 (WTB MD 2010) (granting a waiver to permit
Business/Industrial/Land Transportation operations on a public safety frequency); American Electric Power Service
Corp., Memorandum Opinion and Order, 21 FCC Rcd 4176 (WTB 2007) (granting a waiver of the inter-category
sharing freeze); Ameren Services Co., Order, 21 FCC Rcd. 6329 (WTB 2006) (granting a waiver of the inter-
category sharing freeze); State of Delaware, Order, 21 FCC Rcd. 6332 (WTB 2006) (granting a waiver of the inter-
category sharing freeze); County of Cumberland, Order, 21 FCC Rcd. 9089 (WTB 2006) (granting a waiver of the
inter-category sharing freeze); and County of Tompkins, Order, 22 FCC Rcd. 10215 (PSHSB 2007) (granting a
waiver of the inter-category sharing freeze and wave 4 application freeze in the U.S.-Canada border area).
27 See, e.g., American Electric Power Service Corp., 21 FCC Rcd at n.2 (noting that the Wave 2 non-NPSPAC
application freeze expired). The Wave 1 and Wave 2 non-NPSPAC application freezes expired on February 8, 2006
and May 12, 2006, respectively.
28 See County of Tompkins, Order, 22 FCC Rcd 10215.
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