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Township of West Orange, New Jersey

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Released: March 31, 2014

Federal Communications Commission

DA 14-428

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
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TOWNSHIP OF WEST ORANGE, NEW JERSEY
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FCC File No. 0006204093
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AND
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NEW YORK CITY DEPARTMENT OF
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INFORMATION TECHNOLOGY AND
TELECOMMUNICATIONS
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Joint Request for Waiver of Section 90.609(b) of
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the Commission’s Rules to Permit the Assignment )
of an 800 MHz channel.
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ORDER

Adopted: March 31, 2014

Released: March 31, 2014

By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:
1. Introduction. This Order addresses a Joint Request for Waiver (Waiver Request) filed by the
Township of West Orange, New Jersey (West Orange) and the New York City Department of Information
Technology and Telecommunications (NYC) (collectively the Parties). The Parties request a waiver of
Section 90.609(b) of the Commission’s rules1 to assign a channel from West Orange’s license for Station
WPCE346 to NYC and to delete that channel from West Orange’s primary site without requiring West
Orange to construct the channel at a newly designated site. For the reasons set forth below, we find it to
be in the public interest to grant the Waiver Request as it will bring finality and certainty to the licensing
status of frequency 854/809.3125 MHz, which is the subject a proposed license modification proceeding. 2
Here, we grant the requested assignment, vacate the license modification order and dismiss as moot, West
Orange’s petition seeking reconsideration of the license modification proceeding.
2. Background. On February 23, 2009, the Commission granted West Orange’s application to
add channels 854/809.3125 MHz and 854/809.3375 MHz to Station WPCE346.3 On March 3, 2009,
NYC and the International Municipal Signal Association (IMSA) objected to the grant of West Orange’s
application. New Jersey Transit (NJ Transit) filed a similar objection relative to channel 854/809.3375
MHz on March 27, 2009. The objections alleged that the coordinations for West Orange’s frequencies
were defective.4
3. On April 11, 2013, finding merit in the allegations, we proposed to modify West Orange’s


1 47 C.F.R. § 90.609(b) (prohibits the transfer of unconstructed conventional or trunked stations absent certain
specific circumstances not applicable here).
2 Township of West Orange, New Jersey, et al., Memorandum Opinion and Order and Order Proposing
Modification
, 28 FCC Rcd 4600 (PSHSB 2013) (Modification Order).
3 FCC File No. 0003721208 (filed Jan. 29, 2009) re WPCE346.
4 See Modification Order, 28 FCC Rcd at 4602.

Federal Communications Commission

DA 14-428

license for WPCE346 to delete the authorization for the two channels.5 On May 13, 2013, West Orange
filed an Opposition and Petition for Reconsideration, claiming that it reached a short-spacing agreement
with New Jersey Transit, thus resolving the issues between West Orange and NJ Transit.6
4. Subsequently, West Orange and NYC negotiated an agreement to resolve the issues
surrounding channel 854/809.3125 MHz.7 Under that agreement, West Orange proposes to assign the
authorization for 854/809.3125 MHz to NYC for NYC’s use at a location different than that initially
licensed under Station WPCE346.8 To implement this agreement, on January 28, 2014, West Orange
added a site to its license at a location where NYC intends to construct this channel on 854/809.3125
MHz.9 On March 19, 2014, NYC filed an FCC Form 603 application for assignment of the channel to
NYC.10 NYC and West Orange submitted the instant Waiver Request in which they “seek to transfer and
assign the channel from West Orange to [NYC] (and also cancel the authorization for the channel at West
Orange’s primary site) without West Orange having to construct the channel at [NYC]’s site.”11
5. Discussion. Section 1.925 of the Commission’s Rules provides that we may grant a waiver if
it is shown that (a) the underlying purpose of the rule(s) would not be served or would be frustrated by
application to the instant case, and grant of the requested waiver would be in the public interest; or (b) in
light of unique or unusual circumstances, application of the rule(s) would be inequitable, unduly
burdensome, or contrary to the public interest, or the applicant has no reasonable alternative.12 When
seeking to deviate from the general rule, an applicant faces a heavy burden.13 In order to obtain a waiver,
an applicant must plead with particularity the facts and circumstances which warrant such action.14 In
reviewing the Waiver Request, we find grant of the requested waiver in the public interest.
6. Generally, a public safety license may not be transferred or assigned prior to construction of
the station in accordance with its authorization.15 The prohibition on the assignment and transfer of
unconstructed licenses was implemented to prevent spectrum warehousing.16 Section 90.609(b) of the
Commission’s rules addresses the assignment of unconstructed stations, stating that transfer is permissible


5 Id.
6 Opposition and Petition for Reconsideration filed by the Township of West Orange, New Jersey (dated May 13,
2013) (Petition). New Jersey Transit did not object to West Orange’s Petition.
7 Joint Request for Waiver filed by the Township of West Orange, New Jersey, and the New York City Department
of Information Technology and Telecommunications at 2 (dated Mar. 9, 2014) (Waiver Request).
8 Id.
9 Id. See FCC File No. 0006070279 (filed Dec. 26, 2013).
10 Waiver Request at 2; see FCC File No. 0006204093 (filed Mar. 19, 2014).
11 Waiver Request at 2.
12 47 C.F.R. § 1.925(b)(3)(i-ii).
13 See Wait Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969).
14 Id. citing Rio Grande Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968).
15 See, e.g., District of Columbia, Second Memorandum Opinion and Order, 12 FCC Rcd 19419 (WTB 1997)
(waiving Section 90.609(b) to permit the District of Columbia to partially assign its license to Howard County,
Maryland, prior to completion of the construction of the facility as part of an agreement between the parties).
16 See, e.g., Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems in
the 800 MHz Frequency Band, PR Docket No. 93-144, Second Report and Order, 12 FCC Rcd 19079, 19096-98, ¶¶
40-44 (1997) (800 MHz SMR Second Report and Order) (Section 90.609(b) “was designed to prevent trafficking in
site-specific licenses and spectrum warehousing by taking back unused spectrum.”).
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Federal Communications Commission

DA 14-428

only when involuntary or pro forma.17 Here, the pending assignment application is neither involuntary
nor pro forma, but rather is intended to resolve a licensing dispute between the parties consistent with our
license modification order, which encouraged the parties to negotiate a resolution to this long-running
dispute.18 Although the proposed assignment is not exempt from the prohibition against the assignment
of unconstructed facilities, we believe that the underlying purpose of the rule would not be served in the
instant case were we to enforce it, and that grant of the waiver would serve the public interest.
7. Grant of the waiver would avoid prolonging this proceeding and imposing additional costs on
the Parties. It also would conserve limited Commission resources. Additionally, NYC is prepared to
place the channel into operation promptly, at a location where the channel would provide needed relief for
NYC’s public safety operations.19 We agree with the Parties that grant of the waiver to permit the
assignment of the channel to NYC would expedite the resolution of this matter, thus serving the public
interest.
8. Conclusion. Accordingly, we dismiss as moot West Orange’s Petition for Reconsideration of
our license modification proposal given that West Orange has resolved all issues with NYC and NJ
Transit. We therefore vacate the license modification order. Finally, we note that NYC must file a
construction notification with the Commission once it activates frequency 854/809.3125 MHz. If
frequency 854/809.3125 MHz is not constructed on or before January 28, 2015 the authorization for that
channel will cancel automatically.20
9. Accordingly, IT IS ORDERED, pursuant to the authority of Sections 4(i) and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 303(r), and Sections 0.191, 0.392,
and 1.925 of the Commission’s Rules, 47 C.F.R. §§ 0.191, 0.392 and 1.925, Joint Request for Waiver
filed by the New York City Department of Information Technology and Telecommunications and the
Township of West Orange, New Jersey, IS GRANTED, to assign the authorization for channel 854.3125
MHz from Station WPCE346 to New York City Department of Information and Telecommunications,
prior to construction of the facility.
10. IT IS FURTHER ORDERED that the April 11, 2013 Memorandum Opinion and Order and
Order Proposing Modification IS VACATED.
11. IT IS FURTHER ORDERED, that the FCC Form 603 Application, FCC File No.
0006204093, filed by the Township of West Orange, New Jersey, dated March 19, 2014, SHALL BE
PROCESSED.


17 47 C.F.R. § 90.609(b)(1-2).
18 Modification Order, 28 FCC Rcd at 4604-05 ¶¶ 13-17 (“the conflicts in the applications should have been
resolved by negotiation and settlement between the frequency coordinators involved.”).
19 Waiver Request at 3.
20 Because NYC is the assignee of a partial assignment, the authorization granted NYC herein reflects the assignor’s
(West Orange’s) license expiration date. See 47 C.F.R. § 90.609(b).
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Federal Communications Commission

DA 14-428

12. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 303(r) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405 and Section 1.106 of the
Commission’s Rules, 47 C.F.R. § 1.106, that the Opposition and Petition for Reconsideration filed by the
Township of West Orange, New Jersey, dated May 13, 2013, IS DISMISSED AS MOOT.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau
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