**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. A056229             |
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| UNIVERSITY OF SOUTHERN           | ) |                              |
| CALIFORNIA                       | * |                              |
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| For a Public Safety License      |   |                              |
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| Pursuant to Section 337 of the   | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 7, 2001 Released: February 8, 2001**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# INTRODUCTION and executive summary

1.  We have before us an application[^1] and waiver request[^2] filed by
    the University of Southern California ("USC" or "the University"),
    for authority to use certain frequencies in its public safety land
    mobile radio communications system in Los Angeles, California. USC
    seeks a waiver, pursuant to Section 337 of the Communications Act of
    1934, as amended (the "Act"),[^3] of certain provisions in Part 22
    of the Commission's Rules to use frequencies allotted for
    point-to-multipoint paging control.[^4] For the reasons stated
    below, we deny USC's waiver request and dismiss its application.

# background

2.  USC requests authorization to add five channel pairs of
    frequencies[^5] to its public safety land mobile radio
    communications system.[^6] Three of the requested channel pairs are
    allotted for point-to-multipoint operation under the Commission's
    Part 22 Public Mobile Radio Service rules.[^7] Two of the channel
    pairs requested, 506/509.0750 MHz and 506/509.1000 MHz, are located
    in between the other requested channels and are not listed in the
    Commission's Rules. USC proposes to utilize those frequencies by
    operating with a bandwidth of 12.5 kHz.[^8] Additionally, USC
    proposes to limit the operation of its system to an eight-mile
    radius.[^9]

3.  USC, a private educational institution, includes a Department of
    Public Safety (DPS) and is located in Los Angeles, California.[^10]
    In an agreement with the Los Angeles Police Department, USC's DPS
    proposes use of the subject frequency pairs in its communications
    system to respond to an increased demand among its users.[^11] USC's
    DPS serves the university's downtown campuses and has three hundred
    employees and forty-five campus patrol cars.[^12]

4.  USC's waiver request was placed on public notice on November 29,
    2000.[^13] We received comments from Paging Systems, Inc. ("PSI")
    and the City of Santa Monica, California ("Santa Monica"), which
    both oppose grant of USC's application. USC filed a reply
    comment.[^14] PSI filed an Opposition to Reply Comments
    (Opposition)[^15] on December 21, 2000, and USC filed a Motion to
    Strike the Opposition.[^16]

5.  PSI argues that it possesses authorizations for frequencies 506.1125
    MHz, 506.0875 MHz and 509.0625 MHz, which makes these frequencies
    unavailable to USC.[^17] PSI notes that Section 337(c) requires that
    the desired spectrum be unassigned.[^18] In that connection, PSI
    alleges that granting USC's application would also cause harmful
    interference with its operation and contravene Section
    337(c)(1)(B).[^19] Additionally, PSI argues that other public safety
    spectrum is immediately available for use by USC.[^20] Thus, PSI
    contends that USC fails to satisfy Section 337(c)(1)(A).

6.  Similarly, Santa Monica argues that its application for frequencies
    506.0625 MHz and 509.0875 MHz was filed prior to USC submitting its
    application and would therefore be processed before USC's
    application.[^21] Based on a "first-come, first-serve" processing of
    applications, Santa Monica asserts that it would be licensed before
    USC and USC would be required to avoid harmful interference with its
    operations.[^22] Santa Monica states that USC would cause harmful
    interference to its operations because its transmitter site would be
    less than ten miles away from USC's campus.[^23]

7.  In its reply comments, USC asserts that Santa Monica, as an
    applicant, is not entitled to interference protection.[^24]
    Furthermore, USC claims that it filed an application prior to Santa
    Monica, and Santa Monica's assertion that it filed its application
    first is false.[^25] Alternatively, USC proposes that it and Santa
    Monica share use of the subject frequencies.[^26] Additionally, USC
    alleges that PSI is not operating on 506.1125 MHz, 506.0875 MHz and
    509.0625 MHz and, as a result, should have its authorization
    terminated.[^27] USC also insists that no other spectrum allocated
    for public safety use is immediately available.[^28]

# discussion

8.  USC requests a waiver pursuant to Section 337 of the Act, which
    provides public safety entities with a statutory means of obtaining
    a waiver of the Commission\'s Rules to permit them to use
    frequencies not allocated for public safety use.[^29] Subsection
    (c)(1) of Section 337 provides as follows:

\(c\) Licensing of Unused Frequencies for Public Safety Services.‑‑

\(1\) Use of unused channels for public safety services.‑‑Upon
application by an entity seeking to provide public safety services, the
Commission shall waive any requirement of this Act or its regulations
implementing this Act (other than its regulations regarding harmful
interference) to the extent necessary to permit the use of unassigned
frequencies for the provision of public safety services by such entity.
An application shall be granted under this subsection if the Commission
finds that‑‑

\(A\) no other spectrum allocated to public safety services is
immediately available to satisfy the requested public safety service
use;

\(B\) the requested use is technically feasible without causing harmful
interference to other spectrum users entitled to protection from such
interference under the Commission\'s regulations;

\(C\) the use of the unassigned frequency for the provision of public
safety services is consistent with other allocations for the provision
of such services in the geographic area for which the application is
made;

\(D\) the unassigned frequency was allocated for its present use not
less than 2 years prior to the date on which the application is granted;
and

\(E\) granting such application is consistent with the public
interest.[^30]

9.  When considering requests under Section 337, we first must determine
    whether the applicant is an "entity seeking to provide public safety
    services."[^31] The statute describes public safety services as
    services that are provided by state or local government entities or
    by nongovernmental organizations that are authorized by a
    governmental entity whose primary mission is the provision of such
    services.[^32] Although USC classifies itself as a corporation in
    its application, it has demonstrated that its DPS is a
    non-governmental entity authorized by a governmental entity whose
    primary mission is the provision of such services, namely the Los
    Angeles Police Department.[^33] The statute states that public
    safety services are those services the sole or principal purpose of
    which is to protect the safety of life, health or property.[^34]
    USC's DPS provides police and ambulance services to the main campus
    and the medical school campus.[^35] In its request, USC explains
    that the faculty, students and staff rely on DPS to protect their
    lives and property while on the two campuses.[^36] Lastly, the
    statute provides that public safety services cannot be made
    commercially available to the public.[^37] USC maintains that its
    system will be limited to serving the students, faculty and staff of
    the University.[^38] Based on the information before us, we are
    persuaded that the sole or principal purpose of USC's DPS is to
    protect the safety of life, health and property of university
    students and personnel, thereby satisfying the eligibility criteria
    established by Section 337.

10. USC requests authorization to add five channel pairs, 506/509.0625
    MHz, 506/509.0750 MHz, 506/509.0875 MHz, 506/509.1000 MHz, and
    506/509.1125 MHz to its public safety communications system.[^39]
    Upon review of our licensing records, we found that five of the ten
    requested frequencies are assigned to other licensees in the same
    geographic area. Specifically, frequencies 506.0625 MHz and 509.0875
    MHz are licensed to Santa Monica,[^40] and 506.0875 MHz, 509.0625
    MHz and 506.1125 MHz are licensed to PSI.[^41]

11. USC insists that only a licensee is afforded protection from harmful
    interference and argues that Santa Monica is not entitled to
    protection from harmful interference.[^42] Because Santa Monica
    acquired an authorization to operate on those frequencies after USC
    filed its reply comments, USC's argument is now moot.[^43] USC also
    argues that PSI is not using frequencies 506.1125 MHz, 506.0875 MHz
    or 509.0625 MHz.[^44] USC claims that it monitored the subject
    frequencies in September 1999 and again in December 2000. In
    September 1999, USC alleges there was no activity on any of the
    three frequencies, and in December 2000, USC reports that there was
    minimal "channel saver" activity where timed messages were
    transmitted. USC's allegations, which appear to be based on its
    sporadic monitoring of the channel, do not make a *prima facie* case
    that PSI permanently discontinued operation.[^45] The Commission's
    rules provide that a licensee must return an authorization for
    cancellation if the station has not provided service to subscribers
    for ninety continuous days.[^46] USC does not allege that it
    monitored for a period of ninety consecutive days. Since USC
    proposes operation less than ten miles away from the Santa Monica
    transmitter[^47] and less than twenty miles away from the PSI
    transmitters, we conclude that the frequencies are assigned in the
    same geographic area as USC proposes to operate.[^48] While the
    Commission's rules do not specifically identify a minimum distance
    separation to avoid harmful interference for the 470-512 MHz band,
    we believe a twenty-mile radius is insufficient to protect existing
    licensees from harmful interference. In this connection, we note
    that the transmitter separation requirement for the 928-960 MHz
    band, another band for point-to-multipoint paging operations under
    the Commission's Part 22 rules, states that the required minimum
    distance separation between co-channel fixed transmitters is 113
    kilometers, approximately 70 miles.[^49]

12. In its reply comments, USC proposes conditional shared use with
    Santa Monica if it is determined that Santa Monica's application
    will be processed prior to USC's application and thereby entitled to
    protection from harmful interference.[^50] We reject that request
    because relief under Section 337 of the Act is limited to instances
    where the requested frequencies are "unassigned."[^51] Given that
    certain of the subject frequencies are assigned, USC may not obtain
    a waiver pursuant to that section.[^52] The frequency pairs
    506/509.0625 MHz and 506/509.0875 MHz are not available frequencies
    under Section 337 of the Act. With respect to the channel pair
    506/509.1125 MHz, the frequency 506.1125 MHz is assigned to PSI.
    Because USC requested the frequencies as channel pairs, not as
    single frequencies, we conclude that the channel pair 506/509.1125
    MHz is also not available under Section 337 of the Act.

13. We now turn to whether USC has met the statutory criteria for grant
    of a waiver under Section 337(c)(1) of the Act for use of frequency
    pairs 506/509.0750 MHz and 506/509.1000 MHz. The plain language of
    subsection (c) provides that a waiver request under this section
    shall be granted only upon a finding that all five conditions are
    met regarding the spectrum specifically sought by an applicant.[^53]
    Where any one of the five conditions is not met, the subject waiver
    will not be granted.[^54]

14. We find that USC's request to use frequency pairs 506/509.0750 MHz
    and 506/509.1000 MHz does not satisfy Section 337(c)(1)(B), which
    requires that the proposed use not cause harmful interference to
    other spectrum users entitled to protection from such
    interference.[^55] Here, USC proposes to change the bandwidth to
    12.5 kHz.[^56] USC's proposed operation on 506/509.0750 MHz and
    506/509.1000 MHz would overlap the authorized bandwidth of PSI,
    which is licensed to operate on 506.0875 MHz with an authorized
    bandwidth of 20 kHz).[^57] Similarly, USC's proposed operation on
    506/509.1000 MHz would overlap the authorized bandwidth of PSI's
    operation on 506.1125 MHz.[^58] In these circumstances, USC's
    failure to coordinate its use of the proposed frequencies with a
    frequency coordinator, and its failure to provide a technical
    analysis regarding the impact offset channel operation may cause to
    existing licensees, prevents us from finding USC has satisfied
    Section 337(c)(1)(B).[^59] While USC argues that limiting its
    operations to an eight-mile radius from the campus avoids any
    harmful interference to existing licensees,[^60] we are unable to
    validate this assertion without an engineering study. Therefore, we
    find that USC has failed to show that the requested use is
    technically feasible without causing harmful interference to other
    spectrum users entitled to protection from such interference under
    the Commission's rules.

# conclusion

15. We find that USC has not demonstrated that it meets the criteria for
    a waiver of the Commission's Rules pursuant to Section 337(c)(1) of
    the Act, because five of the point-to-multipoint channels requested
    are in fact already licensed to entities in the Los Angeles,
    California area and USC has not shown that the requested use of the
    remaining channels it seeks is technically feasible without causing
    harmful interference to other spectrum users entitled to protection
    from such interference under the Commission's rules. Accordingly, we
    must deny USC's request to use the subject frequencies for public
    safety services, and we need not address whether USC has submitted
    evidence that would allow us to make the other findings required by
    Section 337(c)(1) of the Act.

# ordering clauses

16. **IT IS ORDERED** that pursuant to Sections 4(i) and 337 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 337,
    the waiver request filed on June 9, 2000, by the University of
    Southern California to use frequencies 506/509.0625 MHz,
    506/509.0750 MHz, 506/509.0875 MHz, 506/509.1000 MHz, and
    506/509.1125 MHz at the requested locations for public safety
    services **IS DENIED,** and the associated application, FCC File No.
    A056229 **IS DISMISSED.**

17. **IT IS FURTHER ORDERED** that the Motion to Strike filed by the
    University of Southern California on January 2, 2001 **IS GRANTED**
    and the "Opposition to Reply Comments" filed December 21, 2000 by
    Paging Systems, Inc. **IS STRICKEN**.

18. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

    D'wana R. Terry

    Chief, Public Safety and Private Wireless Division

    Wireless Telecommunications Bureau

[^1]: FCC File No. A056229, University of Southern California (filed
    June 9, 2000).

[^2]: *See* Letter from Delaney M. DiStefano, Schwaninger & Associates,
    P.C. to Public Safety and Private Wireless Division (dated June 8,
    2000 and filed June 16, 2000) (Request).

[^3]: 47 U.S.C. § 337.

[^4]: Specifically, 47 C.F.R. § 22.621 allots the desired channels to
    point-to-multipoint operations.

[^5]: The specific frequencies that USC proposes to use are 506/509.0625
    MHz, 506/509.0750 MHz, 506/509.0875 MHz, 506/509.1000 MHz, and
    506/509.1125 MHz.

[^6]: Request at 1.

[^7]: 47 C.F.R. § 22.621.

[^8]: *See* Request at 2.

[^9]: *Id* at 3.

[^10]: *Id*. at 2.

[^11]: *Id*. at Attachment 2, Memorandum of Understanding Between
    University of Southern California and the City of Los Angeles.

[^12]: *Id*. at 2.

[^13]: Wireless Telecommunications Bureau Seeks Comment On Request for
    Waiver By the University of California To Obtain a License For Ten
    Channels Allocated For Paging Control Operations, *Public Notice*,
    DA 00-2584 (WTB PSPWD rel. Nov. 29, 2000).

[^14]: *See* Comments filed December 11, 2000 by Paging Systems, Inc.
    (PSI Comments); Comments of the City of Santa Monica, California,
    filed December 11, 2000 (Santa Monica Comments); and Reply Comments
    of the University of Southern California, filed December 18, 2000
    (USC Reply Comments).

[^15]: *See* Opposition to Reply Comments filed December 21, 2000 by
    PSI.

[^16]: *See* Motion to Strike filed by USC and dated January 2, 2001. We
    grant USC's Motion to Strike and do not consider PSI's "Opposition
    to Reply Comments." We are persuaded by USC's Motion to Strike that
    PSI's Opposition to Reply Comments would not assist in the
    resolution of this matter.

[^17]: *See* PSI Comments at 3.

[^18]: *Id*. at 2-3.

[^19]: *Id*. at 5.

[^20]: *Id*. at 3-4.

[^21]: *See* Santa Monica Comments at 3-4.

[^22]: *Id*. at 2-4.

[^23]: *Id*. at 2; *see also* *id* at Attachment -- Letter from Dr.
    Henry L. Richter, Richter Group Communications Consultants to Robert
    Gurss, Shook, Hardy & Bacon, LLP, Counsel for the City of Santa
    Monica, California.

[^24]: USC Reply Comments at 1-2. *See* discussion *infra* para. 11.

[^25]: *Id*. at 2.

[^26]: *Id*. 3-4.

[^27]: *Id*. 4-5.

[^28]: *Id*. 5-6.

[^29]: *See* 47 U.S.C. § 337.

[^30]: 47 U.S.C. § 337(c)(1); *see also* Balanced Budget Act, § 3004.

[^31]: 47 U.S.C. § 337(c)(1). Section 337(f) defines the term "public
    safety services" as "services --

    \(A\) the sole or principle purpose of which is to protect the
    safety of life, health, or property;

    \(B\) that are provided --

    \(i\) by the State or local government entities; or

    > \(ii\) by nongovernmental organizations that are authorized by a
    > governmental entity whose primary mission is the provision of such
    > services; and
    >
    > \(C\) that are not made commercially available to the public by
    > the provider."

[^32]: 47 U.S.C. § 337(c)(1)(B).

[^33]: Request at 2.

[^34]: 47 U.S.C. § 337(c)(1)(A).

[^35]: *See* Request at 2.

[^36]: *Id*; *see also* Request at Attachment, Letter from Tom Hehir,
    Deputy Chief, Department of Public Safety, University of Southern
    California.

[^37]: 47 U.S.C. § 337(c)(1)(C).

[^38]: Request at 1-2.

[^39]: *Id*. at 1.

[^40]: *See* City of Santa Monica, California, *Order*, DA 00-2854 (WTB
    rel. Dec. 20, 2000).

[^41]: License ID No. L00117428.

[^42]: USC Reply Comments at 1-2.

[^43]: Similarly, USC contends that its application was first in line to
    be processed, not Santa Monica's. USC Reply Comments at 2. We
    disagree, however, because the application to which USC refers, FCC
    File No. D131508, was dismissed on the basis that USC applied for
    Part 22 frequencies without the benefit of a waiver and failed to
    secure frequency coordination or submit the application through the
    frequency coordinator.

[^44]: USC Reply Comments at 4-5.

[^45]: *See* Cellular Design Corporation, *Memorandum Opinion and
    Order*, 14 FCC Rcd 13059, 13064 ¶12 (1999) ("\[W\]e agree with the
    Bureau\'s conclusion that an allegation of sporadic monitoring, by
    itself, is insufficient to conclusively demonstrate that a station
    has permanently discontinued operation.")

[^46]: 47 C.F.R. § 22.317.

[^47]: The USC transmitter would be 8.1 miles away from Santa Monica's
    site for frequencies 506.06250 MHz and 509.0875 MHz.

[^48]: The USC transmitter would be 17.32 miles away from the PSI site
    for frequencies 506.0875 MHz and 506.1125 MHz. We note also that PSI
    is licensed on 506.1125 MHz in Santa Ana, California, which would be
    48.25 miles from the proposed USC transmitter site.

[^49]: 47 C.F.R. § 22.625(a); *see also* 47 C.F.R. § 90.307 (requiring
    145 kilometers, approximately 90 miles, separation between 470-512
    MHz licensees and UHF-TV channels).

[^50]: USC Reply Comments at 3-4.

[^51]: 47 U.S.C. § 337(c)(1).

[^52]: *Id.*

[^53]: *See* 47 U.S.C. § 337(c)(1).

[^54]: South Bay Regional Public Communications Authority, *Memorandum
    Opinion and Order*, 13 FCC Rcd 23781, 23796 ¶ 33 (1998) (*South
    Bay*); Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934, as Amended, *Report and Order and
    Further Notice of Proposed Rulemaking*, WT Docket No. 99-87, FCC
    00-403 ¶ 132 (rel. November 20, 2000).

[^55]: 47 U.S.C. § 337(c)(1)(B).

[^56]: Request at 2.

[^57]: FCC License Id. No. L00117428, 47 C.F.R. § 22.621. PSI's
    authorized bandwidth is from 506.0775 MHz to 506.0995 MHz. Under
    USC's proposal, it would have an authorized bandwidth from 506.06875
    MHz to 506.08125 MHz and 506.09375 MHz to 506.10625 MHz.

[^58]: FCC License Id. No. L00117428, 47 C.F.R. § 22.621. PSI's
    authorized bandwidth is from 506.1025 MHz to 506.1225 MHz. Under
    USC's proposal, it would have an authorized bandwidth from 506.09375
    MHz to 506.10625 MHz.

[^59]: *Compare* County of San Mateo, California, *Memorandum Opinion
    and Order*, 14 FCC Rcd 19002, 19008 ¶ 12 (WTB 1999) and County of
    Burlington, New Jersey, *Order on Reconsideration*, DA 00-814 ¶ 11
    (WTB rel. April 12, 2000) (finding that use of frequencies that are
    immediately adjacent to frequencies used by public safety entities
    and coordinated by APCO satisfy Section 337(c)(1)(B)).

[^60]: Request at 3.