**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0001402577      |
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| THE NEW YORK STOCK EXCHANGE,     | ** |                              |
| INC.                             |    |                              |
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| Application and Request for      | *) |                              |
| Waiver for Authority to Operate  | ** |                              |
| a Paging System in New York      |    |                              |
| City, NY, on Frequencies 151.190 | *  |                              |
| MHz, 151.220 MHz, 151.400 MHz,   | *) |                              |
| 159.285 MHz, and 159.420 MHz     | ** |                              |
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**ORDER**

**Adopted: February 10, 2004 Released: February 12, 2004**

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

# INTRODUCTION

1.  In this *Order*, we address the above-captioned application and
    waiver request (Request) of the New York Stock Exchange, Inc.
    (NYSE).[^1] NYSE requests waivers of Sections 90.20(a) and
    90.35(c)(31) of the Commission's Rules to permit NYSE to be
    authorized to operate a paging system in New York City on
    frequencies 151.190 MHz, 151.220 MHz, 151.400 MHz, 159.285 MHz, and
    159.420 MHz.[^2] We grant the Request, as set forth and discussed
    below.

# BACKGROUND

2.  On September 13, 1984, NYSE was granted a license to operate a
    paging system at its location in Manhattan on frequencies 151.190
    MHz, 151.220 MHz, 151.400 MHz, 159.285 MHz, and 159.420 MHz under
    Call Sign WZU487, for a term not to exceed five years. According to
    Commission records, the license was not renewed in accordance with
    Commission rules.[^3] On November 12, 2002, NYSE filed an
    application for special temporary authority (STA) to permit
    temporary operations on the previously authorized facilities, and at
    a "stand-ready" site in Brooklyn.[^4] On November 13, 2002, the
    Licensing and Technical Analysis Branch (Branch) of the former
    Public Safety and Private Wireless Division [^5] of the Wireless
    Telecommunications Bureau denied the STA because it did not include
    evidence of NYSE having been issued a license on the frequencies,
    and thus appeared to request authorization to initiate service,
    which is not a permissible purpose for an STA under Section 1.931 of
    the Commission's Rules.[^6] On February 21, 2003, NYSE filed a new
    STA application for authorization to operate at the Manhattan and
    Brooklyn sites, with evidence that NYSE had previously been licensed
    on the subject frequencies at the Manhattan site.[^7] The Branch
    granted the application on February 25, 2003, under Call Sign
    WPXB394.[^8] Subsequently, NYSE filed the captioned application on
    July 31, 2003, for a new permanent license for the operations
    currently authorized under Call Sign WPXB394.

# discussion 

3.  Section 1.925 of the Commission´s Rules provides that a waiver of
    the rules may be granted if it is shown that the underlying purpose
    of the rule(s) to be waived would not be served or would be
    frustrated, and a grant of the requested waiver would be in the
    public interest. A waiver also may be granted if it is shown that,
    in view of unique or unusual factual circumstances, applying the
    rule would be inequitable, unduly burdensome, or contrary to the
    public interest, or the applicant has no reasonable alternative.[^9]
    For the reasons set forth below, we conclude that NYSE has
    demonstrated that grant of its Request is warranted.

4.  Under the Commission's Rules, the subject frequencies are designated
    for use by Industrial/Business eligibles such as NYSE only in Puerto
    Rico and the Virgin Islands.[^10] In the rest of the country, the
    frequencies are available only to Public Safety eligibles,[^11] and
    are designated for forestry-conservation use.[^12] NYSE requested
    waivers of Sections 90.20(a) (allocation to the Public Safety Pool
    outside of Puerto Rico and the Virgin Islands) and 90.35(c)(31)
    (available to Industrial/Business eligibles in Puerto Rico and the
    Virgin Islands). We believe that NYSE also needs a waiver of
    90.20(c)(3) (designation for forestry-conservation use outside
    Puerto Rico and the Virgin Islands), and that a waiver of Section
    90.20(c)(3) would obviate the need for a waiver of Section
    90.35(c)(31). Accordingly, we shall treat the Request as seeking
    waivers of Section 90.20(a) and (c)(3).

5.  The purpose of those provisions is to ensure adequate spectrum for
    forestry-conservation activities, and to avoid interference to such
    communications from incompatible services.[^13] NYSE asserts that,
    since implementation of its paging system in 1984, it has received
    no complaints of interference from co-channel users regarding its
    operations on the subject frequencies and, similarly, has itself
    received no interference from any such co-channel users when it
    operates on the frequencies.[^14] In addition, we note that NYSE
    requested and obtained frequency coordination for use of the
    frequencies from the Forestry Conservation Communications
    Association (FCCA), the FCC-certified frequency coordinator for
    spectrum designated for forestry-conservation use, and that FCCA
    does not object to the Request.[^15] We also note that
    forestry-conservation activity in New York City is limited, at best.
    Consequently, we agree with NYSE that grant of the Request would not
    undermine the rule's purpose.

6.  We also conclude that grant of the Request is in the public
    interest. According to NYSE, the system now provides service to more
    than 900 pagers that generates an average of over 90,000 pages a
    day, and is relied on by traders and others to identify stocks and
    their prices for facilitating NYSE´s business and the buying and
    selling of stocks.[^16] NYSE argues that, unless the Request and
    application are granted, termination of the paging service at its
    previously-authorized location would have a devastating impact on
    NYSE´s operations and, in turn, have catastrophic consequences on
    the entire economy.[^17] NYSE also requests that it be authorized to
    operate the paging system on the five requested frequencies at an
    additional location, in Brooklyn, on a standby basis for use when an
    emergency or other event disrupts operations at the Manhattan
    site.[^18] NYSE states that this request is in response to the
    events of September 11, 2001, and that the new location, which is
    within a 25-mile radius of the Wall Street location, would serve as
    a contingency site at which to continue the disrupted paging
    operations.[^19]

# CONCLUSION

7.  In light of the absence of any interference to any other user from
    NYSE´s proposed use of the requested frequencies for its paging
    system and the importance to the national economy of NYSE´s use at
    its existing location and at a new backup location in Brooklyn, we
    find that a grant of NYSE´s request for waiver is warranted. We also
    believe that grant of the Request serves the public interest by
    making efficient use of the subject spectrum.[^20]

# ORDERING CLAUSES

8.  Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission´s Rules, 47 C.F.R. § 1.925, the
    Request for Waiver associated with the above-captioned application,
    FCC File No. 0001402577, filed by the New York Stock Exchange on
    July 31, 2003, as amended on August 5, 2003, IS GRANTED.

9.  IT IS FURTHER ORDERED that File No. 0001402577 SHALL BE PROCESSED
    consistent with this *Order* and the applicable Commission Rules.

10. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commissions Rules, 47 C.F.R. §§ 0.131, 0.331.

    FEDERAL COMMUNICATIONS COMMISSION

    D'wana R. Terry Chief, Public Safety and Critical Infrastructure
    Division Wireless Telecommunications Bureau

[^1]: FCC File No. 0001402577 (filed July 31, 2003; amended August 5,
    2003, January 29, 2004, and February 2, 2004).

[^2]: 47 C.F.R. §§ 90.20(a), 90.35(c)(31).

[^3]: The New York Stock Exchange, Inc., *Order*, 18 FCC Rcd 8057, 8057
    ¶ 2 (WTB PSPWD 2003) (*NYSE Order*). NYSE asserts that the license
    was timely renewed except for the most recent renewal term. *See*
    Request at Attachments B and C. In any event, we note that there is
    no dispute that at some point the license expired by its own terms.

[^4]: FCC File No. 0001087362 (filed Nov. 12, 2002).

[^5]: The Commission reorganized the Wireless Telecommunications Bureau
    effective November 13, 2003, and the relevant duties of the Public
    Safety and Private Wireless Division were assumed by the Public
    Safety and Critical Infrastructure Division. *See* Reorganization of
    the Wireless Telecommunications Bureau, *Order*, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003).

[^6]: *See NYSE Order*, 18 FCC Rcd at 8057-58 ¶ 2 (citing 47 C.F.R. §
    1.931).

[^7]: FCC File No. 0001206658 (filed Feb. 21, 2003).

[^8]: The STA was renewed on August 20, 2003, and has a current
    expiration date of February 20, 2004.

[^9]: 47 C.F.R. § 1.925(b)(3).

[^10]: *See* 47 C.F.R. § 90.35(c)(31).

[^11]: *See* 47 C.F.R. § 90.20(a).

[^12]: *See* 47 C.F.R. § 90.20(c)(3).

[^13]: *See* Joe Friend, *Letter*, 18 FCC Rcd 24608, 24668-69 (WTB PSPWD
    2003).

[^14]: Request at 1 n.5.

[^15]: Letter dated July 23, 2003 from Joseph F. Friend, FCCA, to Don
    Andrew, Personal Communications Industry Association.

[^16]: Request at 1, 2.

[^17]: *Id*. at 2.

[^18]: *Id.* at 1 n.3.

[^19]: *Id*.

[^20]: In this connection, we note that grant of the requested relief is
    consistant with the spectrum utilization goals outlined in the
    Spectrum Policy Task Force Report, which states that it is important
    to optimize and facilitate access to, and use of, the radio
    spectrum. Spectrum Policy Task Force Report, ET Docket No. 02-135,
    at 15 (Nov. 2002).