Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | * | FCC File Number 0000117246   |
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| CITY OF SANTA MONICA, CALIFORNIA | ) |                              |
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| For a Public Safety License      | * |                              |
| Pusuant to Section               |   |                              |
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| 337 of the Communications Act of | * |                              |
| 1934, as Amended                 | ) |                              |
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**ORDER**

**Adopted: December 19, 2000 Released: December 20, 2000**

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

**I. Introduction**

1.  We have before us an Application[^1] and Request for Waiver (Waiver
    Request) of Sections 22.501, 22.621, and 90.303 of the Commission's
    Rules,[^2] filed February 18, 2000, by the City of Santa Monica,
    California (Santa Monica) to permit it to use for public safety
    communications UHF channels allocated for paging control
    operations.[^3] Santa Monica seeks the waiver pursuant to Section
    337 of the Communications Act of 1934, as amended.[^4] For the
    reasons stated herein, we will grant Santa Monica's Waiver Request.

**II. Background**

2.  Initially, Santa Monica's Waiver Request sought frequencies 506.0625
    MHz, 509.0625 MHz, 506.1125 MHz, and 509.1125 MHz.[^5] On May 12,
    2000, Santa Monica withdrew its request for three of the
    frequencies, 506.1125 MHz, 509.0625 MHz, and 509.1125 MHz, because
    they already were assigned to other licensees in the same geographic
    area.[^6] Santa Monica reiterated its request for frequency 506.0625
    MHz, and requests that the channel be paired with frequency 509.0875
    MHz.[^7] Santa Monica states that it will use the subject channel
    for essential tactical communications of its police department,
    public transit safety communications, and enhanced dispatch
    capability for its fire department.[^8]

3\. On April 20, 2000, the Public Safety and Private Wireless Division
released a Public Notice, soliciting comments on Santa Monica's Waiver
Request.[^9] Two comments were filed in this proceeding.[^10] In his
comments, Mr. Ken Genser, the Mayor of Santa Monica, states that the Los
Angeles metropolitan area, which encompasses Santa Monica, faces severe
radio spectrum congestion, which has a serious impact on public safety
agencies.[^11] As a result, he urges the Commission to give favorable
consideration to the Waiver Request as expeditiously as possible.[^12]
In its comments, Paging Systems, Inc. (PSI), a provider of commercial
paging services, objects to Santa Monica's request for 506.0625 MHz
because, it asserts, there are other frequencies available to Santa
Monica in the 450 MHz, 800 MHz, and 900 MHz bands.[^13]

4\. On May 12, 2000, Santa Monica filed reply comments. Santa Monica
disagrees with PSI that there are available frequencies in the 450 MHz,
800 MHz, and 900 MHz bands[^14] and cites decisions by the Commission
and the Wireless Telecommunications Bureau regarding similar Section
337(c) waiver requests to support its contention that there are no
public safety radio frequencies available in the Los Angeles
metropolitan area.[^15] Thus, Santa Monica urges the Commission to grant
its amended Waiver Request and application.[^16]

**III. Discussion**

III. 

5\. In the Balanced Budget Act of 1997, Congress provided public safety
entities with a statutory means of obtaining a waiver of the
Commission's Rules to the extent necessary to permit use of unassigned
frequencies for the provision of "public safety services."[^17] Section
3004 of the Balanced Budget Act amended the Communications Act to add
Section 337. Section 337(c)(1) 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 allocation 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.  \(E\) granting such application is consistent with the public
    interest.[^18]

6\. When considering requests under Section 337, we must make an initial
determination of the applicant's eligibility for consideration of its
waiver request under the statute. We are required to apply the
subsection 337(c) criteria to requests for "licensing of unused
frequencies" submitted by "an entity seeking to provide public safety
services."[^19] However, eligibility depends upon whether the proposed
use constitutes "public safety services."[^20]

7.  As to this threshold inquiry of eligibility to invoke Section 337,
    Santa Monica states that it will use the requested channel for
    essential tactical communications of its police department, public
    transit safety communications, and enhanced dispatch capability of
    its fire department.[^21] We find that the purpose of the service
    proposed by Santa Monica is to protect the safety of life, health,
    or property, as required by subsection 337(f).[^22]

8.  We now consider whether Santa Monica meets the statutory criteria
    for grant of a waiver under Section 337(c)(1) of the Communications
    Act. The plain language of subsection (c) provides that a waiver
    request should be granted only upon a finding that all five
    conditions are met regarding the spectrum specifically sought by an
    applicant.[^23]

9.  *No other spectrum allocated to the public safety services is
    immediately available to satisfy the requested public safety service
    use*. Santa Monica submits a statement from the Richter Group, its
    communications consultant, indicating that data base searches reveal
    that public safety channels in the Los Angeles basin are saturated
    with users and that no available public safety frequencies can be
    identified.[^24] Based upon our analysis of the information
    submitted in the Richter Group's statement, we conclude that Santa
    Monica has shown that no other public safety spectrum is immediately
    available in the Los Angeles area.[^25]

10. *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.* Santa
    Monica's communications consultant also found no interference
    potential to other spectrum users of adjacent frequencies in the
    area, if frequency 506.0625 MHz were assigned to Santa Monica.[^26]
    Further, the Richter Group stated that frequency 509.0875 MHz can be
    paired with frequency 506.0625 MHz.[^27] We conclude, therefore,
    that Santa Monica has made a sufficient showing that the use of the
    frequencies in question is technically feasible and would not
    interfere with existing licensees.

11. *The use of the unassigned frequencies 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.* Santa Monica states that both the City of
    Santa Monica and Los Angeles County are major users of the 470-512
    MHz band in the Los Angeles area.[^28] Santa Monica believes that
    its use of the requested frequencies will promote public safety
    interoperability and is consistent with other public safety
    allocations in the Los Angeles area.[^29] Thus, we find that Santa
    Monica has demonstrated that its use of the frequencies at issue
    would be consistent with the Commission's prior public safety
    allocations in that area.

12\. *The unassigned frequencies were allocated for their present use
not less than 2 years prior to the date on which the application will be
granted*. On August 2, 1994, the Commission allocated the frequencies in
question for Part 22 point-to-multipoint operation.[^30] The allocation
became effective January 1, 1995. Thus, the frequencies requested by
Santa Monica were allocated for their present use more than two years
ago.

13. *Granting the application is consistent with the public interest*.
    Santa Monica is a governmental entity requesting frequencies for
    official activities, the principal purpose of which is the
    protection of life, health, and property.[^31] The frequency pair
    requested by Santa Monica will be used by its police, fire, and
    public transit departments to provide tactical and dispatch
    communications critical for public safety response activities, and
    for vehicle location necessary in order to track emergency
    situations on public transit vehicles.[^32] Santa Monica states that
    because its current radio frequency assignments that support police,
    fire, public works, airport, and transit public safety systems are
    overloaded with an average of approximately 100 radios per channel,
    it has a significant need for an additional channel pair.[^33] Santa
    Monica also stresses that the vast majority of other public safety
    users in the Los Angeles area transmit most of their public safety
    communications in the 470-512 MHz band and that any new channels
    that it can obtain should also be in that band so that
    interoperability can be achieved.[^34] Therefore, we find that Santa
    Monica has adequately demonstrated that the grant of its Section
    337(c) request is consistent with the public interest.

**IV. Conclusion**

14. We conclude that Santa Monica's request for waiver pursuant to
    Section 337 meets the requisite criteria under the statute for a
    waiver of our Rules. Therefore,we grant Santa Monica's Wavier
    Request and its associated amended license application.

> **V. Ordering Clauses**

15. Accordingly, **IT IS ORDERED** that, pursuant to Sections 4(i) and
    337(c) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 337(c), the Waiver Request of City of Santa Monica for
    waiver of Sections 22.501, 22.621, and 90.303 of the Commission's
    Rules, 47 C.F.R. §§ 22.501, 22.621, 90.303 **IS GRANTED** and the
    associated amended license application for frequency pair
    506.0625/509.0875 MHz, FCC File No. 0000117246, **SHALL BE
    PROCESSED** in accordance with this *Order*.

16. This action is taken under delegated authority pursuant to Section
    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. 0000117246.

[^2]: 47 C.F.R. §§ 22.501, 22.621, 90.303.

[^3]: Waiver Request at 1.

[^4]: *See* 47 U.S.C. § 337; *see also* Balanced Budget Act of 1997,
    Pub. L. No. 105-33, § 3004, 111 Stat. 251 (Balanced Budget Act).

[^5]: Waiver Request at 2.

[^6]: Waiver Amendment at 1.

[^7]: *Id*. at 1-2.

[^8]: Waiver Request at 3.

[^9]: Wireless Telecommunications Bureau Seeks Comment on Request for
    Waiver by City of Santa Monica, California to Obtain a License for
    Four Channels Allocated for Paging Operations, *Public Notice*, 15
    FCC Rcd 7545 (WTB PSPWD 2000).

[^10]: A late-filed comment, received May 3, 2000, was filed by Mr. Ken
    Genser, Mayor of Santa Monica (Genser Comment). Paging Systems, Inc.
    (PSI) also submitted a late-filed comment, received May 2, 2000 (PSI
    Comment). Mr. Genser offered no explanation why his comment was
    late. PSI said its comment was late due to the three-hour time
    difference between PSI and its counsel. In the interest of having as
    complete a record as possible, we will accept both late-filed
    comments.

[^11]: Genser Comments at 1.

[^12]: *Id*.

[^13]: PSI Comments at 4-5. In addition, PSI opposed Santa Monica's
    request for frequencies 506.1125 MHz, 509.0625 MHz, and 509.1125
    MHz, but, as noted above, Santa Monica has withdrawn that portion of
    its request.

[^14]: Santa Monica Reply Comments at 1-2.

[^15]: South Bay Regional Public Communications Authority, *Memorandum
    Opinion and Order*, 13 FCC Rcd 23781, 23796 ¶ 34 (1998) (South Bay);
    City of Pomona, California, *Order*, 15 FCC Rcd 15597, 15600 ¶ 8
    (WTB 2000) (Pomona).

[^16]: Santa Monica Reply Comments at 2.

[^17]: *See* U.S.C. § 337; *see also* Balanced Budget Act, § 3004.

[^18]: 47 U.S.C. § 337(c)(1); *see also* Balanced Budget Act, § 3004.

[^19]: 47 U.S.C. § 337(c).

[^20]: Section 337(f) defines the term "public safety services" as
    "services\--

    the sole or principal purpose of which is to protect the safety of
    life, health, or property;

    that are provided\--

    \(i\) by 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."

[^21]: Waiver Request at 3.

[^22]: 47 U.S.C. § 337(f).

[^23]: *See* 47 U.S.C. § 337(c)(1); *see also* Implementation of
    Sections 309(j) and 337 of the Communications Act of 1934, as
    Amended, *Notice of Proposed Rule Making*, WT Docket No. 99-87, 14
    FCC Rcd 5206, 5234 ¶ 56 (1999); South Bay, 13 FCC Rcd at 23796 ¶ 33.

[^24]: Statement of Henry L. Richter, Ph.D, P.E., Richter Group,
    Communications Consultants, Palm Springs, California, dated February
    17, 2000 at 1 (Richter Statement).

[^25]: *See also* South Bay, 13 FCC Rcd at 23796 ¶ 34; Pomona, 15 FCC
    Rcd at 15600 ¶ 8.

[^26]: Richter Statement at 1.

[^27]: Waiver Amendment at 2.

[^28]: Waiver Request at 10.

[^29]: *Id*.; *see also* the historical discussion of the use of the
    470-512 MHz band in South Bay, 13 FCC Rcd at 23797 ¶¶ 36-37.

[^30]: Revision of Part 22 of the Commission's Rules Governing the
    Public Mobile Services, *Report and Order*, CC Docket No. 92-115, 9
    FCC Rcd 6513, 6634-35 (1994).

[^31]: Waiver Request at 8.

[^32]: *Id*. at 8-9.

[^33]: *Id*. at 6-7.

[^34]: *Id*. at 9.