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State of Maine - MSCOMMNET Project

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Released: February 5, 2013

Federal Communications Commission

DA 13-148

Before the



In the Matter of


File Nos. Listed in Attached Appendix
Request For Waiver of Section 90.35(a) of the

Commission’s Rules


Adopted: February 5, 2013

Released: February 5, 2013

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



1. The State of Maine – MSCommNet Project (Maine) has filed multiple applications for a
trunked statewide private land mobile radio (PLMR) system using frequencies in the VHF band.1 For a
subset of these applications, Maine seeks a waiver of Section 90.35(a) of the Commission's rules2 to
operate on certain Industrial/Business Pool frequencies that are designated for use by railroads.3 For the
reasons detailed below, we grant Maine’s waiver request for the applications listed in the attached



2. Maine is upgrading its existing state-wide public safety radio communications network.
According to Maine, its current two-way mobile radio systems are “outdated, difficult to maintain, and no
longer adequate to serve respective departments’ critical needs.”4 Consequently, Maine plans to
consolidate all of its agency radio systems into a new narrowband (12.5 kHz channel bandwidth) VHF
trunked Project 25 radio system.5
3. Maine contends that the VHF band (150-170 MHz) is the only viable frequency band for its
statewide radio network because of signal propagation, geography, cost and interoperability
considerations.6 Furthermore, Maine notes that most local public safety agencies in the state rely
primarily on VHF band radio communications, calling it the “de facto public safety band in Maine.”7

1 Since October 2011, Maine has filed over 100 applications under FCC Registration Number (FRN) 0019538925.
2 47 C.F.R. § 90.35(a).
3 See waiver request included with the applications listed in the attached appendix (I/B Waiver Request).
4 Maine Waiver Request at 2.
5 Id. at 3.
6 Id. at 4.
7 Maine Reply Comments at 7.

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DA 13-148

4. Maine claims its new consolidated radio system will require 342 VHF frequencies distributed
across 40 sites, including 151 trunked pairs (302 frequencies) and 40 simplex channels.8 Maine states it
sought to use Public Safety Pool frequencies to meet its requirements, but that, even taking extensive
frequency reuse into account, sufficient Public Safety Pool frequencies are not available. Thus, Maine
claims it must use non-public safety frequencies, including frequencies designated for railroad use to
fulfill its system requirements.9

5. Consequently, Maine filed several applications for trunked private land mobile radio facilities
on certain 160 MHz frequencies,10 which are exclusively coordinated by the Association of American
Railroads (AAR).11 Because Maine is ineligible to use Industrial/Business Pool frequencies in connection
with its MSCommNet Project, it requires a waiver of the eligibility requirements in Section 90.35(a) of
the Commission’s rules in order to incorporate these railroad-specific frequencies into its statewide
network.12 Maine contends that its proposed use of railroad frequencies would not unduly limit the
availability of railroad frequencies in or near Maine because the state currently has “very limited railroad
service within its borders and none of the large (Class I) railroads currently operate track within the
6. On January 23, 2012, the Public Safety and Homeland Security Bureau (Bureau) issued a
public notice seeking comment on Maine’s waiver request.14 In particular, the Bureau sought comment
from parties who would be affected by Maine’s use of railroad frequencies. It asked about the extent to
which these frequencies are used by railroads within or near the State of Maine, and whether there are
railroad lines within the state that may require these frequencies in the future.
7. Comments. Fourteen commenters support Maine’s waiver request, including the Maine
legislature, the Office of the Governor, and nine other Maine government agencies.15 Several such
agencies contend that Maine “presently operates a communications system that is deficient in providing
effective communications.”16

8 Maine Waiver Request at 6.
9 Id. at 6-7.
10 The file numbers for these applications are listed in the attached Appendix.
11 Id. The frequencies subject to exclusive coordination by the American Association of Railroads (AAR) are
denoted with an “LR” in the Coordinator Column of the Industrial/Business Pool Frequency Table. See 47 C.F.R.
§§ 90.35(b)(2)(iv) and 90.35(b)(3).
12 47 C.F.R. § 90.35(a).
13 Maine Waiver Request at 8.
14 Public Safety & Homeland Security. Bureau Seeks Comment on Applications & Waiver Request Filed by the
State of Maine for 150 MHz Industrial/Business Frequencies, Public Notice, 27 FCC Rcd 2521 (2012) (Public
15 See Comments of State of Maine, Office of the Governor; the Maine State Legislature; Maine’s Department of
Inland Fisheries; Department of Marine Resources; Department of Public Safety; Department of Corrections; Office
of the State Fire Marshal; Maine Emergency Management Agency (MEMA); Emergency Management County
Directors Council; Office of Information Technology (OIT); Commissioner of Maine, Department of Defense,
Veterans and Emergency Management; United States Coast Guard; American Association of State Highway and
Transportation Officials (AASHTO); and Enterprise Wireless Alliance (EWA).
16 Maine Department of Inland Fisheries and Wildlife Comments at 1; Maine Department of Marine Resources
Comments at 1; Maine Department of Public Safety Comments at 1; Maine Department of Corrections Comments at

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DA 13-148

8. A few commenting parties, however, oppose Maine’s waiver request. The American
Association of Railroads (AAR) states that it “would oppose any request to coordinate these frequencies
for public safety use.” 17 The Railway Association of Canada (RAC) also states that it will “vigorously
oppose the use of spectrum in the [160.17 MHz – 161.58 MHz band] by the State of Maine in the
Canada-US coordination zone.”18
9. Memorandum of Understanding. On October 26, 2012, AAR and Maine (collectively, the
Parties) concluded a Memorandum of Understanding (MOU) which resulted in AAR withdrawing its
opposition.19 In the MOU, Maine agrees to modify its pending applications in order to seek a lesser
number of railroad frequencies.20 In addition, the Parties agree to cooperate in the elimination or
mitigation of interference which affects either party.21 In response, the RAC voiced its support for the
MOU and indicated it no longer has concerns with Maine’s proposed use of railroad frequencies.22
Subsequently. Maine amended its pending applications consistent with the MOU. Because Maine and
AAR have agreed on the affected frequencies, and because RAC no longer objects, we focus solely on
Maine’s request for a waiver of the eligibility requirements of Section 90.35(a).



10. Section 1.925 of the Commission’s Rules states that in order to obtain a waiver of the
Commission’s Rules, a petitioner must demonstrate either that (i) the underlying purpose of the rule(s)
would not be served or would be frustrated by application to the present case, and that a grant of the
waiver would be in the public interest;23 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.24
11. Applying the second prong of our waiver standard, we find Maine has justified its request for
a waiver of the eligibility standards in Section 90.35(a) of the Commission's rules. As we stated in a
previous Order,25 we agree that there are insufficient Public Safety Pool frequencies available in the VHF
(Continued from previous page)

1; Maine Office of the State Fire Marshal Comments at 1; MEMA Comments at 1; Maine Emergency Management
County Directors Council Comments at 1.
17 Opposition to Request for Waiver, filed Feb. 13, 2012, by AAR, re File Nos. 0004980650 et al. (AAR
18 RAC Opposition at 4.
19 See Memorandum of Understanding between American Association of Railroads and the State of Maine, Office of
Information Technology (MOU) attached to applications listed in the attached appendix on Oct. 26, 2012. See also
Letter from Michele C. Farquhar, Counsel to AAR, to Marlene Dortch, Secretary, Federal Communications
Commission (Nov. 2, 2012).
20 MOU at Appendix A.
21 AAR will test for interference on the frequencies that Maine selects for use on MSCommNet, and the Parties will
cooperate to eliminate interference to other LR-frequency users and to facilitate migration to another frequency if
necessary. MOU at ¶ 2.b.
22 Email from Barry Isherwood, Manager, Terrestrial Coordination, Industry Canada, to Brian Marenco, Federal
Communications Commission (dated Dec. 6, 2012).
23 47 C.F.R. § 1.925(b)(3)(i).
24 47 C.F.R. § 1.925(b)(3)(ii).
25 In the Matter of State of Maine - MSCommNet Project, Order, 27 FCC Rcd 8891, 8894 (PSHSB WTB 2012).

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DA 13-148

band for Maine’s statewide radio system.26 We acknowledge that Maine’s terrain, with its heavily
forested areas, is difficult to penetrate for adequate radio coverage using frequencies above the VHF
band.27 We therefore find it unduly burdensome to require Maine to build a statewide radio system on
higher frequencies—where adequate radio coverage is difficult to achieve—solely to use frequencies
from the Public Safety Pool (i.e., frequencies for which it is typically eligible). Furthermore, we find it in
the public interest for Maine to expand MSCommNet and, thereby, to facilitate interoperability with
federal, state and local public safety officials using predominantly VHF communications systems.28
12. The conclusion of the MOU between Maine and AAR and RAC’s withdrawal of its objection
to the waiver request factored significantly in our decision to approve the waiver and we commend Maine
and AAR for their cooperation in reaching consensus. In doing so, they have facilitated successful
coordination of the affected frequencies along the Canada border, and reduced the size of Maine’s
footprint on railroad frequencies



13. Accordingly, IT IS ORDERED pursuant to Section 1.925 of the Commission’s rules, 47
C.F.R. § 1.925, that the waiver request filed by the State of Maine – MSCommNet Project IS GRANTED.
14. IT IS FURTHER ORDERED that the license applications listed in the attached appendix
filed by State of Maine – MSCommNet Project, SHALL BE GRANTED with the following condition:
Operation on LR frequencies from the Industrial/Business Pool will be in accordance with the provisions
detailed in paragraph 2.b of the Memorandum of Understanding between the licensee and the American
Association of Railroads.
15. This action is taken under delegated authority pursuant to Sections 0.131, 0.191, 0.331 and
0.392 of the Commission’s rules, 47 C.F.R. §§ 0.131, 0.191, 0.331, 0.392.
Michael J. Wilhelm
Deputy Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau

26 See Maine Frequency Studies.
27 Foliage loss can be calculated using the following formula: L = 1.33 (f*0.284*d*0.588), where L is the foliage loss in
decibels along a path blocked by dense, dry, in-leaf temperate-climate trees, f is the frequency in GHz, and d is the
path length in meters. See Weissberger, M. A., "An Initial Critical Summary of Models for Predicting the
Attenuation of Radio Waves by Trees, " ESD-TR-81- 101, Electromagnetic Compatibility Analysis Center,
Annapolis, MD, August 1981.
28 I/B Waiver Request at 5 (noting that all federal, state and local agencies operate in the VHF band except for the
City of Portland).

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DA 13-148


State of Maine Applications Seeking Frequencies Coordinated by Railroad Coordinator (LR)29
ULS Application Numbers
* This application will be granted under this order if all objections from Industry Canada are

29 47 C.F.R. § 90.35(b)(2)(iv).

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