**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

CITY OF SUFFOLK ) FCC File Nos. A012768-A012775

) A016193-A016197

Request for Waiver and ) A016199

Applications for Authorization ) D132625

to Operate Operational Fixed Stations )

On Frequency 155.760 MHz )

**ORDER**

**Adopted: January 4, 2000 Released: January 6, 2000**

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

# 

1.  *Introduction.* The City of Suffolk (Suffolk or the City) has filed
    a waiver request, and the above-captioned associated applications,
    to permit it to use frequency 155.760 MHz for fixed services.[^1]
    For the reasons discussed herein, we deny the request and dismiss
    the applications.

2.  *Background.* Our licensing records indicate that on June 21, 1982,
    Suffolk received authorization to utilize frequency 155.760 MHz, and
    that Suffolk renewed this authorization on April 28, 1987, March 3,
    1992, and March 20, 1997. Pursuant to the Commission's rules,
    frequency 155.760 MHz is designated for base or mobile, but not
    fixed, use.[^2] It now appears, however, that Suffolk has used this
    frequency for operational fixed operations. On November 6, 1997,
    Suffolk requested a waiver of Section 90.20(c)(3) of the
    Commission's Rules to allow it to use frequency 155.760 MHz for
    operational fixed operations.[^3] Suffolk indicated that it had
    utilized the frequency in this fashion to govern its sanitary sewer
    pump station telemetry system since the construction of the city's
    water plant in 1982, and stated that it had been advised by the
    frequency coordinator for the Public Safety Pool, Associated
    Public-Safety Communications Offices, Inc. (APCO), "to request a
    waiver to continue to operate at this frequency, due to limited
    available frequencies."[^4] In support of its request, Suffolk
    stressed the importance of the alarm system to its operations and
    the protection that the alarm system provides to minimize the
    environmental impacts due to inadvertent sewer pump station
    failures.[^5]

3.  On December 18, 1997, APCO filed a letter in support of Suffolk's
    request.[^6] APCO stated that Suffolk's original 1982 application
    "was not a clear representation of their system."[^7] APCO also
    stated that while Suffolk had not altered its basic system, as time
    has progressed, "the availability of allotted spectrum for FXO
    \[fixed operational\] operations in the Tidewater area of Virginia
    is \[no longer\] suitable for the City of Suffolk's required area of
    operation."[^8] APCO further stated that Suffolk's system had not
    caused any known interference to other public safety users. [^9]

4.  On January 12, 1998 and March 24, 1998, Suffolk filed the
    above-captioned applications seeking authorization to operate
    additional operational fixed stations on frequency 155.760 MHz.[^10]
    The Public Safety and Private Wireless Division, Licensing and
    Technical Analysis Branch (Branch) returned the March Applications
    on July 14, 1998, because they lacked evidence of frequency
    coordination.[^11] The Branch further stated that the March
    Applications also needed to be amended because they sought
    authorization to operate operational fixed stations on frequency
    155.760 MHz, a frequency designated for base/mobile operation.[^12]
    The Branch acknowledged that Suffolk and APCO had submitted a waiver
    request to permit fixed use, but stated that it was not inclined to
    grant this request because APCO and Suffolk did not provide adequate
    justification for such a waiver.[^13] The Branch recommended that
    Suffolk correctly license its system by selecting another frequency
    for its operational fixed telemetry operation that did not require a
    waiver.[^14]

5.  On September 14, 1998, APCO resubmitted the March Applications with
    the appropriate frequency coordination numbers, and urged the Branch
    to grant the requested waiver because, given the wide coverage area
    currently required for the telemetry system and the projected growth
    of Suffolk's pumping station facilities, "no other single frequency
    assignment was deemed appropriate, existent or practical at this
    time."[^15] Suffolk also submitted a letter, in which it noted that
    it had operated its telemetry system on frequency 155.760 MHz for
    over sixteen years and depended on continued use of this system to
    ensure the continual operation of its growing sanitary sewer and
    community well systems.[^16] Suffolk also reiterated its claim that
    it had never experienced an impact to or from other operations in
    its utilization of this frequency. [^17]

6.  *Discussion.* Section 1.925(b)(3) of the Commission's Rules provides
    that the Commission may grant a waiver of a rule upon a showing
    that (i) the underlying purpose of the rule would not be served by
    application in the instant case and that a grant would be in the
    public interest; or (ii) in view of the unique or unusual factual
    circumstances of the instant case, application of the rule would be
    inequitable, unduly burdensome or contrary to the public interest,
    or the applicant has no reasonable alternatives.[^18] We find that
    Suffolk has not met either standard.

7.  Suffolk has not argued that the underlying purpose of the rule
    designating frequency 155.760 MHz for base or mobile use would not
    be served by denying a request to use the frequency for fixed
    operations. In addition, we do not believe that Suffolk's operation
    for over seventeen years not in compliance with the terms of its
    authorization is a unique circumstance justifying the requested rule
    waiver. On the record before us, we conclude that such an action
    would not serve the public interest. Moreover, we note that the
    Commission has designated several frequencies in the
    154.4625--154.47875 MHz and 173.20375--173.39625 MHz bands for fixed
    operational operations, and Suffolk has not clearly explained why it
    cannot operate its telemetry system on any of these
    frequencies.[^19]

8.  In the event that Suffolk is currently operating in violation of its
    authorization, we instruct it to cease such operations immediately,
    and to only use the subject frequency for base or mobile use. In
    addition, we reserve our discretion to take appropriate action to
    address this violation in a separate proceeding. To the extent that
    Suffolk needs to use the frequency for fixed operations while it
    finds another frequency to conduct such operations, it should
    consider pursuing special temporary authority to cover such interim
    operations.[^20]

9.  Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 309
    of the Communications Act, as amended, 47 U.S.C §§ 154(i), 309, and
    Section 1.925 of the Commission\'s Rules, 47 C.F.R § 1.925, the
    waiver request filed by the City of Suffolk on November 6, 1997, IS
    DENIED, and applications FCC File Nos. A012768-A012775, filed
    January 12, 1998 and applications FCC File Nos. A016193-A016197,
    A016199, and D132625, filed March 24, 1998, ARE DISMISSED.

10. 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]: *See* Application Return Notices for the Private Land Mobile Radio
    Services, FCC File Numbers A016193-A016199 (July 14, 1998) (July
    Return Notices).

[^2]: 47 C.F.R. § 90.20(c)(3).

[^3]: Letter, dated November 6, 1997, from Albert S. Moor II, P.E.,
    Director of Public Utilities, City of Suffolk to FCC.

[^4]: *Id.*

[^5]: *Id.*

[^6]: Letter, dated December 18, 1997, from David R. Warner, APCO
    Virginia to FCC.

[^7]: *Id.*

[^8]: *Id.*

[^9]: *Id.*

[^10]: *See* Applications for Mobile Radio Service Authorization, FCC
    File Numbers A012768-A012775 (filed January 12, 1998) (January
    Applications) and Applications for Mobile Radio Service
    Authorization, FCC File Numbers A016193-A016199 (filed March 24,
    1998) (March Applications) (FCC File Number A016198 was subsequently
    redesignated FCC File Number D132625). On April 1, 1998, the Public
    Safety and Private Wireless Division, Licensing and Technical
    Analysis Branch (Branch) returned the January Applications without
    taking action on them, pursuant to a request from Suffolk to
    withdraw the applications. *See* Facsimile transmission, dated
    January 13, 1998, from Rachel Mortimer, APCO Virginia to Kathy
    McLucas, FCC. Suffolk resubmitted the January Applications on April
    20, 1998, and included a note stating that it intended for its
    November 6, 1997, request for waiver to apply to the resubmitted
    January Applications.

[^11]: *See* July Return Notices.

[^12]: *Id.*

[^13]: *Id.*

[^14]: *Id.*

[^15]: Letter, dated September 10, 1998, from David R. Warner, APCO
    Virginia to Mike Regiec, FCC.

[^16]: Letter, dated September 8, 1998, from Albert S. Moor II, P.E. and
    Director of Public Utilities, City of Suffolk, to David Warner, APCO
    Virginia. Suffolk stated that the Branch's decision jeopardized the
    water supplies of over one million customers in Suffolk and other
    communities whose drinking water supplies originate or are stored in
    reservoirs within the City.

[^17]: *Id.*

[^18]: 47 C.F.R. § 1.925(b)(3).

[^19]: *See* 47 C.F.R. § 90.20.

[^20]: *See* 47 C.F.R. § 1.931.