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Federal Communications Commission

DA 12-354

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
STATE OF VERMONT
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File Nos. 0003628199, 0003628331,
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0003628464, 0003628465, and 0003628607
Request For Waiver Pursuant to Section 337(c) of
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the Communications Act of 1934, as Amended,
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and Section 1.925 of the Commission’s Rules
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ORDER

Adopted: March 7, 2012

Released: March 7, 2012

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

I.

INTRODUCTION

1.
On October 28, 2008, the State of Vermont (Vermont, or the State), filed ten applications,
five of which remain pending, and a request for waiver to use certain non-public safety frequencies for
public safety communications.1 Based on the five pending applications, Vermont seeks to use seven
frequency pairs from the 450-470 MHz UHF band allocated for assignment under Part 22 of our rules for
public land mobile operations.2 Vermont seeks a waiver pursuant to Section 337(c) of the
Communications Act of 1934, as amended (Act),3 or alternatively, pursuant to Section 1.925 of the
Commission’s rules.4 Because these Part 22 frequencies are previously licensed, we deny Vermont’s
waiver request and dismiss the captioned applications.


1 See File Nos. 0003628199 (filed Oct. 28, 2008, amended Oct. 29, 2008, Jan. 30, 2009, and Mar. 30, 2009),
0003628331 (filed Oct. 28, 2008, amended Oct. 29, 2008, Jan. 29, 2009, Feb. 20, 2009, and Mar. 30, 2009),
0003628464 (filed Oct. 28, 2008, amended Oct. 29, 2008, Feb. 17, 2009, and Mar. 30, 2009), 0003628465 (filed Oct.
28, 2008, amended Oct. 29, 2008, Jan. 29, 2009, Jan. 30, 2009, Mar. 16, 2009, and Mar. 30, 2009), and 0003628607
(filed Oct. 28, 2008, amended Jan. 29, 2009, Feb. 2, 2009, Mar. 13, 2009, Mar. 30, 2009, and May 29, 2009), and
attached Section 337(c) Waiver Request, filed Oct. 28, 2008, amended Jan. 29, 2009 and March 30, 2009 (Waiver
Request). The other five applications not included in the caption have been dismissed for procedural reasons or
withdrawn. See File Nos. 0003628332 (filed Oct. 28, 2008, amended Oct. 29, 2008, withdrawn Feb. 2, 2009),
0003628333 (filed Oct. 28, 2008, amended Oct. 29, 2008 and Jan. 29, 2009, and Apr. 8, 2009, dismissed Oct. 2,
2010), 0003628604 (filed Oct. 28, 2008, amended Jan. 29, 2009, Jan. 30, 2009, Apr. 8, 2009, and May 7, 2009, and
June 30, 2009, dismissed Oct. 3, 2009), 0003628684 (filed Oct. 28, 2008, amended Jan. 29, 2009, Feb. 2, 2009, Mar.
16, 2009, Mar. 30, 2009, May 29, 2009, and July 31, 2009, dismissed Oct. 24, 2009), and 0003628685 (filed Oct. 28,
2008, withdrawn Feb. 2, 2009).
2 See 47 C.F.R. § 22.561. The three dismissed applications also requested certain frequencies in the 150-160 MHz
VHF high band from this rule section. See File Nos. 0003628332, 0003628604, and 0003628684.
3 47 U.S.C. § 337(c).
4 47 C.F.R. § 1.925.

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Federal Communications Commission

DA 12-354

II.

BACKGROUND

2.
Vermont asserts that its public safety agencies operate on different frequency bands and
lack interoperability.5 To address this deficiency and improve overall radio communications, Vermont is
seeking to develop a new statewide public safety communications system that would support all public
safety users in Vermont, provide statewide communications capability for disaster coordination, and be
interoperable with federal users.6 To provide capacity for the system, Vermont proposes to license VHF
high band and UHF frequencies at locations throughout the State.7 Vermont contends, however, that it
requires access to Part 22 frequencies because the capacity requirements of the proposed system “surpass
the availability of spectrum designated for public safety use.”8 Vermont also notes it has limited access to
VHF high band or UHF public safety spectrum in the northern portion of the state because these channels
are heavily used across the border in Canada.9

III.

DISCUSSION

3.
Vermont requests access to Part 22 frequencies under Section 337(c) of the Act, which
affords public safety entities access to unassigned spectrum not allocated to public safety if the
Commission makes certain findings based on criteria specified in the statute.10 In this case, however, we
need not address the statutory criteria because the spectrum at issue is not unassigned as required by
Section 337(c)(1).11 All of Vermont’s requested sites are located in Basic Economic Area (BEA) 004.
Although Vermont contends that the requested channels have not been auctioned and are held by the
FCC,12 our review of the record indicates otherwise. All of Vermont’s requested sites are located in Basic
Economic Area (BEA) 004, and the Commission’s Universal Licensing System indicates that all of the
requested frequencies are assigned to Central Vermont Communications, Inc. in BEA 004. A table of the
incumbent licenses is presented below:

Vermont

Frequency Pair

Incumbent Incumbent Licensee Name

File No.

Call Sign

0003628199
454.650 / 459.650 MHz WPZG428
Central Vermont Communications, Inc.
0003628331
454.400 / 459.400 MHz WPZG436
Central Vermont Communications, Inc.
0003628464
454.075 / 459.075 MHz WPZG430
Central Vermont Communications, Inc.
0003628465
454.250 / 459.250 MHz WPZG432
Central Vermont Communications, Inc.


5 Waiver Request at 5.
6 Id.
7 Id. at 1.
8 Id.
9 Id. at 2
10 47 U.S.C. § 337(c).
11 47 U.S.C. § 337(c)(1).
12 Waiver Request at 4.
2

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Federal Communications Commission

DA 12-354

0003628465
454.300 / 459.300 MHz WPZG433
Central Vermont Communications, Inc.
0003628607
454.050 / 459.050 MHz WPZG429
Central Vermont Communications, Inc.
0003628607
454.550 / 459.550 MHz WPZG438
Central Vermont Communications, Inc.
4.
Because Vermont has failed to meet the requirement that the spectrum it seeks be
unassigned, we find that Vermont cannot obtain relief pursuant to Section 337.13 In addition, we find that
in light of the prior licensing of the frequencies at issue, Vermont has not met the standard for waiver
relief under Section 1.925. We therefore deny the waiver request and dismiss the captioned applications.
We note that nothing in this Order prevents Vermont from seeking use of the subject frequencies by
entering into an agreement, consistent with the Commission’s rules, with Central Vermont
Communications, Inc.

IV.

ORDERING CLAUSES

5.
Accordingly, we DENY the Waiver Request, as amended, associated with the captioned
applications filed by the State of Vermont, pursuant to Sections 4(i) and 337(c) of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 154(i), 337(c), and Section 1.925 of the Commission’s rules, 47
C.F.R. § 1.925, and DENY the captioned applications, consistent with this Order and the Commission’s
rules.
6.
We take this action 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
Thomas J. Beers
Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau


13 See, e.g., City of El Segundo, Order, 19 FCC Rcd 6992, 6995-6 ¶ 8 (WTB PSCID 2004) (“Because El Segundo
has failed to has failed to satisfy the prerequisite criterion that the spectrum be unassigned, we need not address its
arguments regarding the five criteria under Section 337(c)(1) of the Act.”).
3

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