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Released: December 10, 2012

Federal Communications Commission

DA 12-1984

Before the

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

In the Matter of
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State of Montana
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Request for Waiver of Section 90.20(d)(41)
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of the Commission’s Rules
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ORDER

Adopted: December 10, 2012

Released: December 10, 2012

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

I.

INTRODUCTION

1. On September 24, 2012, the State of Montana (Montana) submitted a request for waiver to
use frequency 155.4750 MHz (Blue Channel)1 for interagency coordination of all public safety responders
within 16 kilometers (km) of the U.S.-Canada border. 2 Specifically, Montana requests a waiver of
Section 90.20(d)(41) of the Commission’s rules to use the Blue Channel licensed under call sign
WNQN689 for multi-discipline (e.g., law enforcement, fire and emergency medical services, mutual aid)
communication within 16 km of the border. By this Order, we grant the requested waiver subject to
conditions.

II.

BACKGROUND

2. On June 1, 2011, the Northern Tier Interoperability Consortium (NTIC), represented by the
Interoperability Montana Project (IMP), was awarded a grant under the Border Interoperability
Demonstration Project (BIDP).3 In its grant application, Montana proposed to use the Blue Channel for
general interagency border communications during an emergency.4 Specifically, Montana would allow
state, local, tribal and Canadian first responders to communicate on the Blue Channel for mutual
U.S./Canadian operations at or within 16 km of the border.5 Montana submits that this plan would
achieve the following objectives:
a) Improve day-to-day interoperable emergency communications among local, state,
tribal, and federal entities as well as international partners along and across
international borders;


1 Montana codes its public safety channel by color, hence the designation “Blue Channel.”
2 See State of Montana Frequency Waiver Request, Request to Utilize Frequency 155.4750 MHz (Call Sign
WNQN689) for Multi-Discipline Mutual Aid Communication Operations Within 16km of the U.S./Canadian Border
attached to License WNQN689 on Sept. 24, 2012 (Montana Waiver Request). Montana defines the border as the
49th Parallel. Id. at 5.
3 Id. at 2. Pursuant to Congressional directive, the Department of Homeland Security established the BIDP – “a
competitive grant program that will provide funding to U.S. communities located on the international borders of
Canada or Mexico to develop innovative solutions for improving interoperable emergency communications along
and across the border.” http://www.dhs.gov/border-interoperability-demonstration-project.
4 Montana Waiver Request at 2.
5 Id.

Federal Communications Commission

DA 12-1984

b) Improve interoperable communications among emergency response providers
responding to threats and natural disasters on the border; and
c) Facilitate interoperable communications among emergency response providers in
border communities of varying population densities.6
3. Under Section 90.20(d)(41) of the Commission rules, the Blue Channel is “available
nationwide for use in police emergency communications networks operated under statewide law
enforcement emergency communications plans.”7 Consequently, Montana requires a waiver to expand
the permissible use of the Blue Channel to include multi-discipline mutual aid communication within 16
km of the U.S./Canadian border.
4. In support of its waiver request, Montana notes that communities along the border are
sparsely populated with limited resources so it is common for law enforcement personnel to perform other
functions, e.g. to provide Emergency Medical Services.8 Montana further explains that it is already
licensed to operate on the Blue Channel, and has 20 base station licenses with coverage in or near the area
of concern.9 Finally, Montana argues that most patrol and emergency situations at or near the border will
involve law enforcement personnel interacting with other law enforcement or emergency services; and
that the waiver, if granted, will assist Canadian first responders operating on the U.S. side of the border to
communicate with their U.S. counterparts.10
5. Montana also argues that expanded use of the Blue Channel serves the best interest of the
public as well as law enforcement and other response organizations (including Canadian responders on
the U.S. side of the border) by providing a “centralized resource” over which all units may
communicate.11 Montana believes it would be unduly burdensome to restrict communications on the Blue
Channel to law enforcement given the extreme and rural nature of the topography and population along
the border, and the mutual reliance of multi-discipline local, tribal, state, Federal, and international
response groups in times of emergency.12
6. On September 27, 2012, the Public Safety and Homeland Security Bureau issued a Public
Notice seeking comment on Montana’s Waiver Request.13 No party submitted comments.

III.

DISCUSSION

7. The Commission will grant a waiver request if the waiver proponent shows that: “(i) The
underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant


6 Id. at 3 (quoting Northern Tier Border Interoperability Demonstration Project (BIDP) Grant Application,
Interoperability Montana at 3.).
7 47 C.F.R. § 90.20(c)(3)(d)(41). Amendment of Part 89 of the Commission’s Rules and Regulations to Designate
the Frequency 155.475 MHz as a Common, Nationwide Police Emergency Communications Channel, Docket No.
20560, RM–2522, Report and Order, 57 FCC 2d 673 (1976) .
8 Montana Waiver Request at 3.
9 Id.
10 Id.
11 Id. at 4.
12 Id.
13 See Public Safety and Homeland Security Bureau Seeks Comment on Request by State of Montana to Use
Frequency 155.4750 MHz for Multi-Discipline Mutual Aid Communication Within 16 km of the U.S.-Canada
Border, Public Notice, 27 FCC Rcd 11344 (PSHSB 2012).
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DA 12-1984

case, and that a grant of the requested 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.”14 Here, we
analyze Montana’s waiver request with reference to the second prong of the waiver standard, i.e., we
examine whether there are unique or unusual factual circumstances that would make strict application of
Section 90.20(d)(41) inequitable, unduly burdensome or contrary to the public interest.
8. Given that Montana borders Canada, we find that Montana is unusually situated for engaging
in interoperable communications to coordinate cross-border incidents. We believe expanding
interoperability (1) in Montana among state, local and tribal emergency responders in rural parts of the
state and (2) across the border with Canadian emergency responders, serves the public interest.
Specifically, grant of this waiver would advance important homeland security goals reflected in the BIDP
legislation.15 For example, Congress directed that the Department of Homeland Security shall “foster
local, tribal, State, and Federal interoperable emergency communications, as well as interoperable
emergency communications with appropriate Canadian and Mexican authorities in the communities
selected for the demonstration project.”16 Additionally, grant of this waiver is consistent with our
precedent promoting cross-border communications.17 Based on the record before us, we find that
permitting multi-discipline, mutual aid communications on the Blue Channel will improve interoperable
communications among all first responders responding to threats and natural disasters along the border
and will assist any Canadian first responder who needs to communicate in the unlikely event that he or
she is operating on the U.S. side of the border.
9. In granting the Waiver Request, we must ensure that our decision does not impede existing or
future state police communications plans in Montana and adjacent states. Accordingly, we grant the
Waiver Request, subject to the condition that Montana shall restrict the use of the Blue Channel for multi-
discipline, mutual aid communications among public safety personnel operating within 16 km (10 miles)
of the border with Canada. Additionally, within 30 days of the release of this Order, we require Montana
to notify the State Police in Idaho, North and South Dakota and Wyoming of its multi-discipline, mutual
aid plans in order to ensure that frequency 155.4750 MHz remains available nationwide for use in police
emergency communications networks operated under statewide law enforcement emergency
communications plans.

IV.

CONCLUSION

10. Based on the foregoing, we conclude that granting the instant waiver request is in the public
interest. Accordingly, we grant the State of Montana a waiver of Section 90.20(d)(41) of the
Commission’s rules and allow it to use frequency 155.4750 MHz (Blue Channel) for multi-discipline,
mutual aid communications within 16 km of the U.S.-Canada border.

V.

ORDERING CLAUSES

11. Accordingly, IT IS ORDERED pursuant to Section 154(i) of the Communications Act of


14 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).
15 Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. No. 110-53), 121 Stat. 300.
16 Id. § 1810(c).
17 See State of Washington, Order, 22 FCC Rcd 10121 (PSHSB 2007) (granting the State of Washington a waiver to
use a frequency designated for paging operations to be used to coordinate cross-border incidents with Canada).
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Federal Communications Commission

DA 12-1984

1934, as amended, 47 U.S.C. § 154(i), and Section 1.925(b)(3)(ii) of the Commission’s rules, 47 C.F.R.
§ 1.925(b)(3)(ii), that the Waiver Request filed by the State of Montana on September 24, 2012, IS
GRANTED to the extent, and subject to the conditions, discussed herein.
12. 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 and 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau
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