**DA 06-1316**

**June 27, 2006**

**Wireless Telecommunications Bureau ACTION**

**Wireless Telecommunications Bureau APPROVES**

**Region 22 (MINNESOTA) 700 MHz Regional PLAN**

**WT Docket No. 02-378**

On October 14, 2005, the Region 22 (Minnesota)[^1] 700 MHz Regional
Planning Committee submitted a proposed plan (Plan) for the use of the
12.5 megahertz of spectrum in the 764-776 and 794-806 MHz band (700 MHz
public safety band) designated for General Use.[^2] Region 22 requested
Commission review and approval of the Plan.[^3] In addition, Region 22
requested a waiver of Section 90.527(a)(5), which provides that regional
plans must include an explanation of how the plan was coordinated with
adjacent regions, because it has been unable to obtain Letters of
Concurrence and Dispute Resolution Agreements from two unformed 700 MHz
regions, Region 32 (North Dakota) and Region 38 (South Dakota).[^4] For
the reasons set forth below, we grant the waiver request and approve the
Region 22 700 MHz Regional Plan.

*Background.* In 1998, the Commission adopted a band plan for the 700
MHz public safety band, and established a process to allow regional
planning committees (RPCs) maximum flexibility to meet state and local
needs, encourage innovative use of the spectrum, and accommodate new and
as yet unanticipated developments in technology and equipment.[^5] The
Commission's role in relation to the RPCs involves, as a general matter,
(1) defining the regional boundaries; (2) requiring fair and open
procedures, *i.e.*, requiring notice, opportunity for comment, and
reasonable consideration; (3) specifying the elements that all regional
plans must include; and (4) reviewing and accepting proposed plans (or
amendments to approved plans) or rejecting them with an explanation.[^6]

*Plan Requirements.* There are fifty-five RPCs and each committee is
required to submit its plan for the assignment of licenses for General
Use spectrum.[^7] Each regional plan must contain certain elements[^8]
and must be coordinated with adjacent regions.[^9] RPCs are expected to
ensure that their committees are representative of all public safety
entities in their regions by providing adequate notice of all meetings,
opportunity for comment, and reasonable consideration of views
expressed. Plans must include an explanation of how all eligible
entities within the region were given such notice.[^10] Plans should
list the steps undertaken to encourage and accommodate all eligible
entities to participate in the planning process, such as holding
meetings in various parts of the region. In addition, a regional plan
should describe outreach efforts made to tribal governments.

Regional plans may differ somewhat in approaches to spectrum planning
and management. In particular, some plans may make specific assignments
to eligible public safety entities, while others may establish an
allotment pool approach based on political boundaries such as
counties.[^11] However, all 700 MHz plans submitted for review and
approval must sufficiently address each of the common elements set forth
in the Commission's regional plan requirements.[^12] RPCs also are
encouraged to consider utilizing the guidelines developed by the Public
Safety National Coordination Committee (NCC).[^13]

*Review of the Region 22 Plan.* Region 22 submitted its proposed plan on
October 14, 2005.[^14] Region 22 convened the first of seventeen 700 MHz
regional planning meetings beginning on January 8, 2001, wherein it
appointed its officers and adopted bylaws.[^15] The Plan includes copies
of published meeting announcements, notices and a detailed membership
list.[^16] The membership appears to be sufficiently diverse and we note
that meetings were held throughout the State, in an apparent effort to
encourage participation and facilitate attendance.[^17] The Plan details
the operations of the regional plan committee, procedures for requesting
spectrum allotments,[^18] plan modification, frequency coordination, and
interference protection measures. The Plan discusses system
implementation and spectrum utilization.[^19] The Plan was coordinated
with two of four adjacent regions and also includes *Inter-Regional
Coordination Procedures and Procedures for Resolution of Disputes that
May Arise Under FCC Approved Plans* (signed by the chairpersons of 700
MHz Regional Planning Regions 15 and 45).[^20]

*Waiver Request.* Section 1.925 of the Commission's Rules, 47 C.F.R. §
1.925, provides that a waiver of the Commission's Rules may be granted
if it is shown that 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
in view of the unique or unusual circumstances of the instant case,
application of the rule(s) would be inequitable, unduly burdensome or
contrary to the public interest or if the applicant has no reasonable
alternative. Region 22 requests a waiver of Section 90.527(a)(5), which
provides that regional plans must include an explanation of how the plan
had been coordinated with adjacent regions, because Region 22 was unable
to obtain Letters of Concurrence and Dispute Resolution Agreement from
Regions 32 (North Dakota) and Region 38 (South Dakota).[^21] Region 22
states that it distributed a draft plan to its adjacent regions in
January 2005, and in turn received both letters of concurrence and
dispute resolution agreements from Region 15 (Iowa) and Region 45
(Wisconsin). Region 22 states that it has made reasonable efforts to
contact and obtain the consent of all adjacent regions.

Region 22 reports that although Region 32 and Region 38 have selected
conveners[^22] they have not yet established dates for their first
meetings. In addition, Region 22 states that both North Dakota and South
Dakota are involved in large VHF projects and do not anticipate
convening a 700 MHz RPC in the near future.[^23] Region 22 further
states that it provided a copy of the Plan to the 700 MHz conveners and
that both conveners felt comfortable that their regions' needs have been
addressed, because Region 22 adopted the CAPRAD pre-allocated frequency
assignments.[^24] Region 22 believes that Regions 32 and 38 will have
sufficient spectrum to meet their needs when they elect to commence 700
MHz regional planning. Finally, in support of the waiver request, Region
22 explains that the 700 MHz public safety spectrum is available for
immediate licensing and implementation with Region 22, upon approval of
its Plan.[^25] Region 22 also states that eligible entities are
designing systems and waiting for the actual assignment of the
frequencies as allocated in the Region 22 Plan.

On January 19, 2006, the Region 22 Plan was placed on *Public Notice*
for comment.[^26] We received one comment on the Plan.[^27] The National
Association of Regional Planning Committees (NARPC) supports the request
for waiver of Rule 90.527(a)(5) citing Regon 22's outreach efforts with
the representatives of the unformed regions. NARPC further states that
Region 22 has demonstrated due diligence in plan development through the
utilization of the CAPRAD channel allotments at the border areas which
NARPC believes would provide sufficient channel availability for the
unformed regions future use. Based on the information before us, we
agree.

We note that Region 22, having formed its planning committee in January
2001, has apparently worked diligently to develop a 700 MHz Plan, which
it adopted at its October 12, 2004 meeting. Furthermore, we observe that
Minnesota has developed an 800 MHz statewide trunked radio system to
encourage the development of a multi-agency, multi-tasking shared
network.[^28] Minnesota intends to augment the 800 MHz statewide trunked
system with 700 MHz channels at sites where there are insufficient 800
MHz channels.[^29] We therefore believe it would be inequitable and not
in the public interest to postpone the Commission's approval of the
Region 22 700 MHz Plan.[^30] Accordingly, we grant the requested waiver
relief.

However, we reiterate that grant of this waiver does not relieve Region
22 of its continuing obligation to obtain Letters of Concurrence and
Inter-Regional Dispute Resolution Agreements from Region 32 and Region
38 once they are formed.[^31] Further, this waiver grant does not remove
the requirement for Region 22 to conduct inter-region coordination of
applications where necessary.

This decision is based on the particular, documented factors presented
here, including, but not limited to, Region 22's progress in 700 MHz
public safety band implementation, the phased implementation of
Minnesota's statewide trunking system,[^32] and the inactive status of
Region 32 (North Dakota) and Region 38 (South Dakota). In addition, we
find that Region 22 has exercised due diligence through its efforts to
consider and factor in the future 700 MHz public safety band spectrum
needs along the border between Minnesota and North and South Dakota. We
do not foresee granting waivers of the adjacent region coordination
requirement under circumstances less compelling than those presented
here.

We have reviewed the Plan submitted by Region 22, and conclude it
complies with other applicable FCC rules and policies. Accordingly,
pursuant to Section 4(i) of the Communications Act of 1934, as amended,
47 U.S.C. § 154(i), and Section 1.102(b) of the Commission's Rules, 47
C.F.R. § 1.102(b), the Region 22 (Minnesota) 700 MHz Public Safety Plan
is APPROVED.

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.

Action by the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau.

\- FCC -

[^1]: The Region 22 (Minnesota) 700 MHz regional planning area
    encompasses the entire state of Minnesota, consisting of
    eighty-seven counties, and shares its northernmost border with the
    Canadian provinces of Manitoba and Ontario.

[^2]: *See* Letter dated September 28, 2005 from Steve Pott, Chairman,
    Region 22 to Marlene H. Dortch, Secretary, FCC (submitting the
    Region 22 700 MHz Plan on behalf of the Region 22 700 MHz Regional
    Planning Committee) and Request for Waiver of Concurrence Letter and
    Dispute Resolution Agreement with Region 32 (North Dakota), filed on
    October 14, 2005 (Waiver Request); *see also* Letter dated December
    13, 2005 from Steve F. Pott, Chairman, Region 22 to Marlene H.
    Dortch, Secretary, FCC (submitting revised membership information,
    Plan Attachment 2), filed December 13, 2005.

[^3]: The Plan includes copies of published meeting announcements,
    notices, membership and tribal government information. *See* Plan,
    Attachments 2, 3 and 5.

[^4]: *See* 47 C.F.R. § 90.527(a)(5). Region 22's adjacent regions are
    Region 25 (Iowa), Region 32 (North Dakota), Region 38 (South Dakota)
    and Region 45 (Wisconsin).

[^5]: *See* 47 C.F.R. § 90.527; *see also* The Development of
    Operational, Technical and Spectrum Requirements for Meeting
    Federal, State and Local Public Safety Agency Communication
    Requirements through the Year 2010, *First Report and Order and
    Third Notice of Proposed Rulemaking,* WT Docket No. 96-86, 14 FCC
    Rcd 152 (1998) (*First Report and Order*).

[^6]: *See* *First Report and Order,* 14 FCC Rcd at 195 ¶ 87.

[^7]: *See* 47 C.F.R. § 90.531. The 700 MHz public safety band plan
    contains twenty-four megahertz of spectrum for public safety
    services at 764-776 MHz and 794-806 MHz, and is divided into several
    segments by designated purpose: General Use, Interoperability,
    Secondary Trunking, State License, Low Power and Reserve channels.

[^8]: *See* 47 C.F.R. § 90.527; *see also* *First Report and Order*, 14
    FCC Rcd at 193-94 ¶ 84.

[^9]: *See* 47 C.F.R. § 90.527; *see also First Report and Order*, 14
    FCC Rcd at 190-96 ¶¶ 77-89.

[^10]: *See First Report and Order*, 14 FCC Rcd at 193-94 ¶ 84. RPCs
    were directed to promptly adopt operating procedures that "ensure
    that all entities will be given reasonable notice of all committee
    meetings and deliberations." *Id.* at 195 ¶ 86.

[^11]: *See* Plan, Attachments 7 and 8 for Channel Allotments by Class
    (General Use Voice 25 kHz) and Allotments by FCC Channel. See Plan
    Attachments 12 and 13 for Wideband Channel Allotment Per County and
    Per Channel. Region 22 utilized the frequency packing program within
    the Computer Assisted Pre-coordination Resource and Database System
    (CAPRAD) administered by the National Law Enforcement and
    Corrections Technology Center-Rocky Mountain Region (NLECTC-RM) to
    create its channel allocation plan. The NLECTC-RM is a program of
    the National Institute of Justice and is sponsored by the University
    of Denver through the Denver Research Institute. The CAPRAD system
    is available at
    [http://caprad.nlectc.du.edu](http://caprad.nlectc.du.edu/). CAPRAD
    pre-designated initial allotments are pre-allocated in county-like
    area frequency pools. Given this approach any modifications to the
    existing Region 22 Frequency Allotment List will require an
    amendment to the Plan.

[^12]: *See* 47 C.F.R. § 90.527.

[^13]: The NCC was a federal advisory committee established by the
    Commission in 1999 to address and advise the Commission on
    operational and technical parameters for use of the 700 MHz public
    safety band. The NCC was also tasked with providing voluntary
    assistance in the development of coordinated regional plans, and
    developed a *Regional Planning Guidebook.* Following the sunset of
    the NCC's charter on July 25, 2003, the National Public Safety
    Telecommunications Council (NPSTC) agreed to continue to provide
    assistance to regional planners. The *Guidebook* is available at the
    NPSTC website <http://www.npstc.org/documents.html>.

[^14]: *See supra* note 2.

[^15]: Plan Section 4, Notification Process at 9-10. *See also*
    Attachment 5, Letter to Minnesota Indian Affairs Council dated
    January 6, 2004. Notification to Tribal police agencies was
    accomplished through the Minnesota Sheriff's Association and
    Minnesota Chiefs of Police Association.

[^16]: Plan Attachments 3 and 4 -- Meeting Notices and Minutes. Meetings
    were held at several locations---Mankato, Shoreview, St. Paul---and
    also utilized video-conferencing.

[^17]: Plan Attachment 2 (Revised). *See also* Letter dated December 13,
    2005 from Steve F. Pott, Chairman, Region 22 to Marlene H. Dortch,
    Secretary, FCC (submitting revised membership information, Plan
    Attachment 2), filed December 13, 2005.

[^18]: Plan Section 5.5, Spectrum Allocation Procedure at 12, and Plan
    Sections 8.1 through 8.3, Allocation of General Use Spectrum at
    30-34.

[^19]: Plan Sections 5.15-5.16, Protection Ratios and Channel Loading
    Requirements; Plan Sections 6.0-6.8 Interoperability Channels
    (calling and tactical channels; deployable systems and trunking
    operations on the interoperability channels); Plan Section 8.10,
    Trunking Requirements at 38-39; Plan Section 8.13, System Coverage
    Limitations at 39-40. For a discussion of wideband data channel
    planning and implementation, see Plan Sections 8.3 through 8.3.5.

[^20]: Plan Attachments 17 and 18. Concurrence Letters and Dispute
    Resolution Agreements (Letters of Concurrence and Dispute Resolution
    Agreements between Region 22 and adjacent regions, Region 15 (Iowa)
    and Region 45 (Wisconsin).

[^21]: *See* 47 C.F.R. § 90.527(a)(5).

[^22]: *See* *First Report and Order,* 14 FCC Rcd at 195 ¶ 86. The
    relevant 800 MHz RPC appoints the 700 MHz regional planning convener
    to plan and conduct the initial 700 MHz regional planning committee
    meeting for the purpose to establish the committee and elect
    officers.

[^23]: Waiver Request at 1.

[^24]: Waiver Request at 1. CAPRAD channel allotments used by Region 22
    at their border areas will provide sufficient channel availability
    to the unformed regions. *See supra* note 11.

[^25]: *See* 47 C.F.R. §§ 90.529, 90.531(b)(5).

[^26]: *See* Comments Invited on Region 22 (Minnesota) 700 MHz Regional
    Planning Committee Proposed Public Safety Plan, *Public Notice,* WT
    Docket No. 02-378, 21 FCC Rcd 312 (WTB PSCID 2006). Comments were
    due February 21, 2006 and reply comments were due March 8, 2006.

[^27]: *See* Comments filed by Stephen T. Devine, Chair, National
    Association of Regional Planning Committees, WT Docket No. 02-378,
    filed Feb 21, 2006.

[^28]: Plan Section 5.9, Statewide Trunking Plan at 14-15.

[^29]: Plan Section 5.9, Statewide Trunking Plan. Minnesota's statewide
    radio project, the Allied Radio Matrix for Emergency Response system
    (ARMER), is a region-wide 800 MHz trunked radio system initially
    constructed in the seven metropolitan counties plus Chisago and
    Isanti counties to facilitate reliable interoperability. Plans for
    expansion include the addition of a high-speed mobile data
    communications layer. *See* Plan Attachment 10, *A Plan for Adding a
    High-Speed Mobile Data Communications Layer to the Region-Wide
    Public Safety Radio Communications System-Phase One.*

[^30]: *See* Wireless Telecommunications Bureau Approves Region 12
    (Idaho) 700 MHz Regional Plan, *Public Notice*, 21 FCC Rcd 2382 (WTB
    PSCID 2006).

[^31]: Once completed, a copy of such documentation must be filed in WT
    Docket 02-378 where it will become part the Region 22 700 MHz Plan.

[^32]: See Wireless Telecommunications Bureau Approves Minnesota (Region
    22) 800 MHz Public Safety Plan Amendment, *Public Notice*, PR Docket
    No. 93-130, 20 FCC Rcd 14691 (PSCID WTB 2005). The amendment
    documented the new and revised channel assignments necessary to
    accommodate Phase 2 and Phase 3 of Minnesota's ARMER system, a
    statewide trunking system.