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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) TEXAS UTILITIES SERVICES, INC. ) ) Request for Waiver of Section 90.179) of the Commission's Rules ) ORDER Adopted: July 3, 1997Released: July 3, 1997 By the Acting Chief, Wireless Telecommunications Bureau: I. INTRODUCTION AND EXECUTIVE SUMMARY 1. On September 10, 1996, Texas Utilities Services, Inc. (TU Services), submitted a request for a waiver of Section 90.179 of the Commission's Rules to permit it to share its 900 MHz Industrial and Land Transportation (I/LT) Service system with Public Safety users on a non- profit, cost shared basis. On May 6, 1997, TU Services amended the request to also seek permission to share the system with Federal Government users. Based on the record in this proceeding, we conclude that TU Services' amended request should be granted. II. BACKGROUND 2. Texas Utilities (TU) is an electric utility that provides service to almost six million consumers in 91 counties and 396 cities throughout Texas. Its subsidiary, TU Services, is licensed for sixty-nine 900 MHz I/LT channels and operates a trunked land mobile radio system providing seamless communications capabilities over a 75,000 square mile territory. According to TU Services, the system includes 108 repeater sites, 7 primary dispatch centers, and 190 secondary dispatch centers, and has cost approximately $35 million to date. TU Services states that TU uses the system to dispatch and coordinate inspection, maintenance, and emergency response activities, and that the network accommodates unanticipated surges in usage during storms and other emergencies. 3. TU Services seeks a waiver in order to share its I/LT system with Public Safety and Federal Government eligibles on a non-profit, cost shared basis. A waiver is required because Section 90.179(a) of the Commission's Rules provides that a licensee may share its radio station only with users that would be eligible for separate authorization to use those frequencies. 4. In support of its request, TU Services states that many Public Safety agencies operating within the area covered by its network lack sufficient spectrum or financial resources to construct and operate high quality, comprehensive communications systems. In addition, these agencies often need to communicate and coordinate with TU (such as during power outages), with each other, and with their own personnel whose duties take them outside the range of their agency's radio system. Letters from four Public Safety eligibles expressing interest in sharing TU Services' system are attached to the waiver request. As one of the letters states, "[b]eing able to utilize a wide area system, such as the TU system, would provide small entities with the capability of current technology while conserving spectrum." 5. Attached to the amendment to the waiver request is a letter of interest from the United States Army's Fort Hood military complex, which is located within TU Services' system coverage area. TU Services states that military operations are conducted in thinly populated areas outside the complex, and personnel and equipment from other bases convoy through the area served by TU Services' communications system to Fort Hood for staging. In addition, according to TU Services, Fort Hood's police, fire, and emergency medical services operate within the complex and in surrounding towns, and often need to communicate with local Public Safety agencies. Finally, TU Services reports that Fort Hood's Explosive Ordnance Department responds to civilian bomb threats, and its Provost Marshall Office provides drug-seeking dogs and handlers, throughout Texas. The money needed to update the Fort Hood communications system has consistently been allocated elsewhere, and sharing TU Services' system would be much less expensive. III. DECISION 6. To obtain a waiver of the Commission's rules and procedures, a petitioner must demonstrate that its circumstances are unique, that good cause exists to justify the requested relief, and that there is no reasonable solution within the existing rules. TU Services has met this burden with respect to both the Waiver Request and the Waiver Request Amendment. Our basis for this determination is set forth below. 7. The health and well-being of every person in the country depends directly or indirectly on the services provided by police officers, fire fighters, emergency medical services personnel, and other Public Safety officials. Because Public Safety agencies need sufficient communications resources and options to carry out their missions more effectively and efficiently, the Commission is committed to improving public safety communications and ensuring the availability of ample alternatives including spectrum to meet public safety needs. In its efforts to study public safety spectrum needs and develop a plan that ensures that adequate frequencies are available for public safety uses, the Commission, jointly with the National Telecommunications and Information Administration, established the Public Safety Wireless Advisory Committee (PSWAC) to provide advice and recommendations on the current and future requirements of Public Safety agencies. PSWAC's final report concluded, among other things, that there should be more shared and joint use systems developed, including federal/non-federal sharing, and that more spectrally efficient radio projects should be deployed on the state and regional levels. TU Services' waiver request gives us an opportunity to address one such specific public safety need. 8. Unique Circumstances. TU Services has met the first leg of the test for obtaining a waiver of our rules, by demonstrating that its case presents unique circumstances. TU Services' system covers a large territory, including rural areas with limited public safety communications coverage. The waiver will allow entities providing public safety services in TU Services' coverage area, large and small, local, state, and federal, to communicate with one another during emergencies. The waiver also will allow Public Safety agencies to communicate directly with TU during power outages and similar emergencies. Denial of the waiver, on the other hand, would be contrary to efforts underway at the federal level and in the public safety community to promote wide area shared systems that emphasize interoperability and flexibility. 9. Good Cause. TU Services has met the second leg of the test for obtaining a waiver of our rules, by demonstrating that good cause exists to justify the requested relief. The proposed waiver will increase spectrum efficiency by allowing Public Safety and Federal Government entities to use the excess capacity of TU Services' system. Thus, a waiver is consistent with the purpose of Section 90.179, which is to promote the efficient use of spectrum by maximizing the number of persons using the channels set aside for them, and denial of the waiver would serve no public interest. In addition, this waiver will enable Public Safety entities to obtain wide area coverage and at the same time conserve financial resources by avoiding the necessity of building a wide area backbone system. During this time of limited economic resources, avoiding unnecessary expenditures is a significant consideration for local, state, and federal agencies. 10. Lack of Reasonable Alternatives. Finally, there are no reasonable solutions within the existing rules. Public Safety spectrum is scarce in some of the areas served by TU, and, according to TU Services, no commercial or other private system in the territory can provide the same services. Public Safety agencies that need technically advanced, wide area communications services, but lack access to sufficient spectrum or cannot afford systems that would provide the same benefits as TU's (or have more pressing needs), have no reasonable alternative to sharing TU's system. IV. CONCLUSION 11. This Order grants the request of TU Services for a waiver of Section 90.179 of the Commission's Rules to permit it to share its I/LT system with Public Safety and Federal Government eligibles on a non-profit, cost shared basis. The action taken herein serves the public interest in that it will encourage more efficient use of the spectrum, and provide improved opportunities for communication by the Public Safety community and the Federal Government. V. ORDERING CLAUSE 12. IT IS ORDERED that pursuant to 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 90.151 and 90.179 of the Commission's Rules, 47 C.F.R.  90.151 and 90.179, a Waiver of Section 90.179 IS GRANTED to Texas Utilities Services, Inc., permitting it to share its I/LT system with Public Safety and Federal Government users. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Acting Chief, Wireless Telecommunications Bureau