EWA Letter Request
Washington, D.C. 20554
January 9, 2014
Released: January 14, 2014
Mr. Mark E. Crosby
President and CEO
Enterprise Wireless Alliance
8484 Westpark Drive, Suite 630
McLean, VA 22102
Mr. William K. Brownlow
Public Safety Communications Council
444 N Capitol St. NW, Suite 249
Washington, DC 20001
Dear Messrs. Crosby and Brownlow:
By letter of July 16, 20131 the Enterprise Wireless Association (EWA) asked the Public Safety
and Homeland Security Bureau (PSHSB) and the Wireless Telecommunications Bureau (WTB) to
provide guidance and to confirm new standards for consideration of public safety licensee requests to use
Industrial/Business (I/B) frequencies below 470 MHz. We take this opportunity to clarify the FCC
process for reviewing such requests. To the extent that the issues posited by EWA arise, we believe they
can be addressed through the existing process.
We appreciate EWA’s concerns regarding this matter, and welcome this opportunity to explain
how the Federal Communications Commission (Commission) handles public safety entities’ requests for
I/B spectrum. The Commission established separate frequency pools for public safety entities and I/B
entities in order to increase spectrum efficiency, increase licensee flexibility to manage the spectrum more
efficiently and reduce administrative burdens on users as well as the Commission.2 Generally, these goals
are best advanced by restricting licensees to the pool for which they are eligible. As further discussed
below, however, under certain circumstances it is appropriate to grant public safety entities waivers of
these rules. These waiver requests, which are relatively infrequent, are reviewed de novo by Commission
staff in both PSHSB and WTB even though the frequency selection has been approved by a certified I/B
1 Letter to Mr. David Turetsky, Chief, Public Safety and Homeland Security Bureau and Ms. Ruth Milkman, Chief,
Wireless Telecommunications Bureau, from Mr. Mark E. Crosby, President and Chief Executive Officer, the
Enterprise Wireless Alliance, July 26, 2013 (EWA Letter).
2 See Replacement of Part 90 By Part 88 To Revise the Private Land Mobile Radio Services and Modify the Policies
Governing Them and Examination of Exclusivity and Frequency Assignments Policies of the Private Land Mobile
Services, Second Report and Order, 12 FCC Rcd 14307, 14315 ¶ 15 (1997).
EWA specifically seeks “guidance regarding the appropriate standard for EWA, an I/B frequency
advisory committee (“FAC”) to use when evaluating requests” from public safety entities seeking waivers
to use I/B frequencies below 470 MHz.3 Further, EWA requests that the Commission confirm that EWA
may follow certain proposed standards when considering public safety licensee requests to use below-470
MHz I/B frequencies.4 The first standard would disqualify conventional public safety applicants from
seeking waivers to use I/B frequencies. These conventional licensees would be required to share a
frequency with a licensee or licensees in the public safety pool.5 The second standard would disqualify
trunked public safety applicants from seeking an I/B frequency unless the applicant demonstrated that “all
potentially available PS frequencies already have achieved FB8 [exclusive use] status so that there are no
assignable, shared PS frequencies.”6
By letter of August 16, 20137 the Public Safety Communications Council (PSCC) responded to
the EWA letter, arguing against EWA’s “abstract fashion” of addressing waiver requests and urging that
the “Commission should not be penned in by arbitrary constraints that ignore the unique and unusual
circumstances typically at issue in a request for waiver.”8 In PSCC’s view, the Commission should
consider waiver requests from public safety applicants seeking I/B frequencies when a shared public
safety frequency “is unusable for public safety communications because of the substantial potential for
harmful interference, either to the applicant’s proposed operations or to an existing licensed facility.”9 In
such a case, PSCC states, “the Commission properly expects a demonstration (supported with a statement
from a Public Safety frequency coordinator) that the applicant’s requirements cannot be met with Public
Safety Pool channels.”10
By letter of September 9, 201311 EWA replied to the PSCC letter. It asserts that PSCC’s position
conflicts with Section 90.173(a) of the Commission’s Rules,12 which states that frequencies generally are
3 EWA Letter at 1.
4 Id. at 2-3.
5 Id.at 2.
6 Id. at 3.
7 Letter to Mr. David Turetsky, Chief, Public Safety and Homeland Security Bureau and Ms. Ruth Milkman, Chief,
Wireless Telecommunications Bureau, from Mr. William K. Brownlow, Chair, Public Safety Communications
Council, August 13, 2013 (PSCC Letter).
8 Id. at 1-2.
9 Id. at 2.
10 Id. citing State of Maine, Order, 27 FCC Rcd 8891 (PSHSB 2012); State of Maine, Order, 28 FCC Rcd 7388
(PSHSB 2013); Shelby County, Alabama, Order, 27 FCC Rcd 388 (PSHSB 2012); West Virginia Dept. of Health
and Human Services/State Trauma Emergency Care Sys., Order, 25 FCC Rcd 12566 (PSHSB 2010).
11 Letter to Mr. David Turetsky, Chief, Public Safety and Homeland Security Bureau and Ms. Ruth Milkman, Chief,
Wireless Telecommunications Bureau, from Mr. Mark E. Crosby, President and Chief Executive Officer, the
Enterprise Wireless Alliance, September 9, 2013 (EWA Reply).
12 47 C.F.R. § 90.173(a).
assigned on a shared basis, and Section 90.187,13 which provides that only trunked systems below 470
MHz are eligible for exclusive frequencies.14
We believe the Commission’s existing processes accommodate the scenarios EWA describes; we
therefore decline to confirm that EWA’s proposed standards conform to the Commission’s rules and
policies respecting public safety licensees’ access to I/B frequencies. As EWA notes, Section 90.175 of
the Commission’s rules “does not differentiate between PS and IB applicants.”15 Rather, the rule requires
FACs to recommend the “most appropriate frequency,” with no express limitation to the spectrum pool
for which the applicant is eligible.16 Precedent establishes that, in the proper case, a FAC may identify an
“appropriate frequency” in a spectrum pool other than the pool for which the applicant is eligible.17
We can foresee circumstances in which a FAC could suitably recommend an out-of-pool
frequency as “most appropriate” for a new entrant or an existing licensee seeking to expand its system.
For example, a case could arise in which the public safety pool is so heavily used that requiring a new
entrant to use a shared frequency would materially deteriorate the grade of service required by incumbent
licensees. In such a case the “appropriate frequency” could be an unused I/B frequency, assuming that
such a frequency were available without creating a spectrum shortfall or materially deteriorating the grade
of service in the I/B pool – even if both the incumbent operations and the proposed operations would be
in conventional mode and therefore ordinarily required to share spectrum pursuant to Section 90.173.
As is generally its practice with respect to waiver requests, the Commission takes a case-by-case
approach to evaluating proposals from public safety entities that seek I/B frequencies.18 The Commission
defers to the FAC’s technical determination that there is no suitable public safety pool spectrum available
13 47 C.F.R. § 90.187.
14 EWA Reply at 1-2.
15 EWA Letter at 1. See 47 C.F.R. § 90.175.
16 47 C.F.R. § 90.175; see also 47 C.F.R. § 90.7 (defining frequency coordination as “[t]he process of obtaining the
recommendation of a frequency coordinator for a frequency(ies) that will most effectively meet the applicant’s
needs while minimizing interference to licensees already operating in a given frequency band.”).
17 See, e.g., West Virginia Department of Health and Human Resources/Bureau of Public Health/State Office of
Emergency Medical Services, Order, 28 FCC Rcd 7089 (PSHSB 2013)(waiver to use I/B frequencies granted where
suitable public safety frequencies not available and sufficient I/B frequencies remained after waiver granted.); City
of Augusta, Maine, Order 28 FCC Rcd. 4706 (PSHSB 2013)(public safety licensee granted waiver to share I/B
frequencies upon a demonstration that suitable public safety frequencies were not available because licensee was
close to the Canada border); State of Maine, Order, 28 FCC Rcd 988 (PSHSB 2013)(licensee demonstrating that
suitable public safety frequencies were not available despite extensive frequency reuse in its system granted waiver
to use I/B and railroad frequencies); Shelby County, Alabama, Order, 27 FCC Rcd. 388 (PSHSB
2012)(notwithstanding contrary comments by EWA, allowing County to use I/B frequencies on a showing that
suitable public safety frequencies were not available); City of Los Angeles, Order, 23 FCC Rcd 8720 (PSHSB
2008)(public safety licensee granted access to I/B frequencies on showing that suitable public safety pool
frequencies were not available.)
18 EWA’s standards would amount to per se tests. The first would be a per se test for new conventional public
safety entrants who would be denied access to I/B frequencies no matter how heavily public safety frequencies in
the area are used. EWA Letter at 2. The second would be a per se test that a new trunked public safety entrant
could not seek a waiver to use I/B frequencies unless it showed that all public safety pool licensees had exclusive
“FB8” status on all public safety pool frequencies. Id. at 3.
and that the selected I/B frequencies are appropriate and avoid or minimize interference to other users,
and reviews de novo the legal issue of whether the applicant meets the Commission’s well-established
waiver standard.19 Only when a proponent of use of I/B frequencies by a public safety entity satisfies the
Commission’s waiver standards will the Commission grant the requested waiver.
In evaluating public safety entities’ requests for I/B frequencies, the Commission will continue to
carefully review FAC’s recommendations and ensure that the applicant satisfies the Commission’s waiver
criteria. We emphasize that FACs must carefully and accurately ascertain that no suitable public safety
frequencies are available before recommending recourse to I/B frequencies. We see no need, however, to
change our traditional case-by-case analysis of such requests. Thus, in response to EWA’s request for
“FCC guidance regarding the appropriate standard for EWA . . . to use in evaluating such requests,”20 we
refer EWA to the cases cited herein and to this letter’s explanation of how the Commission responds to
waiver requests filed by new entrants or existing public safety licensees seeking use of I/B channels.
Should you need any additional information or would like to discuss this matter further, please
contact me at (202) 418-1300 or by e-mail at firstname.lastname@example.org or Roger Sherman at (202) 418-
0656 or by e-mail at email@example.com.
David G. Simpson
Roger C. Sherman
Rear Admiral, USN (Ret.)
Chief, Public Safety and Homeland Security Bureau
Wireless Telecommunications Bureau
cc: Elizabeth Sachs, Esq.
19 See 47 C.F.R. § 1.925 (“The Commission may grant a request for waiver if it is shown that: (i) The underlying
purpose of the rule(s) would not be served or would be frustrated by application to the instant 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.”); 47 C.F.R. § 90.175(h)(FAC recommendations “advisory”
20 EWA Letter at 1.
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