Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| GARMIN AT, INC.                  | ) |                              |
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| Request for Waiver of Part 87    | * |                              |
| Rules to Permit Equipment        |   |                              |
| Authorization and Use of         | * |                              |
| Universal Access Transceivers on | * |                              |
| the Frequency 978 MHz            | ) |                              |
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**ORDER**

**Adopted:** June 24, 2004 **Released:** June 28, 2004

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

1.  *Introduction*. On April 1, 2004, GARMIN AT, Inc. (GARMIN) filed a
    request for waiver of the Commission's Part 87 rules to permit the
    authorization of Universal Access Transceiver (UAT) equipment and to
    permit UAT operation on the frequency 978 MHz.[^1] For the reasons
    discussed herein, we grant the Waiver Request subject to conditions
    set forth below.

2.  *Background*. UAT is a radio datalink technology that has been
    developed to provide Automatic Dependent Surveillance -- Broadcast
    Service (ADS-B) and other services to the aviation community.[^2]
    Deployment of ADS-B will enhance safety of flight by enabling
    aircraft in the same airspace to precisely track each other's
    movement, reducing the risk of mid-air collisions. On October 16,
    2003, the Commission issued a *Report and Order and Further Notice
    of Proposed Rule Making* in WT Docket No. 01-289, in which it
    proposed to amend the Part 87 Rules governing the Aviation Radio
    Service to, *inter alia*, authorize UAT operations on the 978 MHz
    frequency.[^3] Specifically, the Commission proposed to amend or add
    Sections 87.137(a) (to specify the emission designator F1D for UAT
    operations on 978 MHz), 87.139(l)(1) (to impose emission limitations
    on UAT operations), 87.141(k) (to impose modulation requirements on
    UAT operations), 87.173(b) (to list 978 MHz in the table of
    frequencies as available for UAT operations), and 87.187(ff),
    87.263(g), 87.345(f), 87.349(e), 87.375(e), 87.417(c), and
    87.475(b)(9) (all to authorize the use of 978 MHz for UAT data
    transmission).[^4] These proposals remain pending before the
    Commission.

3.  GARMIN filed the Waiver Request seeking a waiver of Sections 87.137,
    87.145 and 87.187 of the Commission's Rules[^5] and any other
    applicable provisions of the Commission's Rules so that GARMIN's UAT
    Model No. GDL 90 may be certified and authorized for operation on
    978 MHz in accordance with the Commission's UAT proposal in the
    *Part 87* FNPRM in advance of a Commission decision on whether to
    adopt the proposal.[^6] GARMIN represents that its UAT is designed
    to broadcast on the 978 MHz frequency with the emission designator
    1M70F1D and 50 watts output power, and that the transceiver complies
    with both the relevant Federal Aviation Administration (FAA)
    Technical Standard Order, FAA TSO-C154 and with the RTCA DO-282
    Minimum Operating Performance Standards (MOPS) that were jointly
    developed by government and industry.[^7]

4.  GARMIN says that it has supported the FAA's trials of UAT technology
    in Alaska, and continues to support FAA efforts to deploy UAT
    technology in the lower 48 states.[^8] According to GARMIN, many
    members of the aviation community, including a number of flight
    schools, want to use UAT.[^9] It adds that implementing the service
    in high density flight training areas, where radar services are
    costly or unavailable, will greatly enhance public safety.[^10] The
    FAA supports grant of the requested waiver, indicating in an
    accompanying letter that the GDL 90 is the first UAT brought to
    market that complies with the RTCA MOPS and the FAA TSO standard,
    and that expeditious certification and operational approval of the
    GDL 90 will benefit aviation safety.[^11] Both GARMIN and the FAA
    assert that waiver relief is essential now because there is an
    immediate need to deploy UAT in the interest of flight safety, and
    the benefits of UAT should not be delayed until the release of an
    order addressing this and the other issues raised in the *Part 87
    FNPRM*.[^12]

5.  On April 15, 2004, the Public Safety and Critical Infrastructure
    Division (Division), Wireless Telecommunications Bureau, issued a
    Public Notice requesting comment on the Waiver Request.[^13] In
    response to the Public Notice, Embry-Riddle Aeronautical University,
    a flight training school, filed comments strongly supporting the
    Waiver Request, stating that UAT is a vital part of ADS-B, which
    will assist flight instructors and students in maintaining
    situational awareness, warn them of nearby traffic, and provide them
    with currently unavailable safety options.[^14] GARMIN filed reply
    comments reiterating that an expeditious grant of the requested
    waiver would serve the public interest, and noting that no comments
    in opposition to the Waiver Request have been filed.[^15]

6.  *Discussion*. Section 1.925 of the Commission's Rules specifies that
    the Commission may grant a waiver upon a showing either that (i) 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 (ii) in
    view of unique or unusual factual circumstances of the instant case,
    application of the rule(s) would be inequitable, unduly burdensome
    or contrary to the public interest, or the applicant has no
    reasonable alternative.[^16] Based on our review of the record, we
    conclude that the Waiver Request should be granted because the
    public interest in aviation safety would be furthered by such action
    and the underlying purpose of the waived rules -- promotion of
    flight safety, and efficient and effective aviation radio
    communication -- would be frustrated absent a waiver. Accordingly,
    subject to conditions described below, we hereby waive Sections
    87.137, 87.139, 87.141, 87.145, 87.173, 87.187, 87.263, 87.345,
    87.349, 87.375, 87.417, and 87.475,[^17] as necessary to permit
    equipment authorization and operation on 978 MHz of GARMIN UAT Model
    GDL 90.

7.  The Commission already has tentatively concluded that amending the
    Part 87 Rules to accommodate UAT technology on 978 MHz would serve
    the public interest.[^18] Nothing in the instant record calls that
    conclusion into question. No party has opposed the Waiver Request or
    suggested any reason to deny the Waiver Request. GARMIN, supported
    by Embry-Riddle Aeronautical University and, most significantly, by
    the FAA,[^19] has cogently explained how and why grant of the
    requested waiver relief would provide immediate benefits to aviation
    safety, including but not limited to pilot training benefits,
    without any apparent countervailing public harm. The potential
    benefits of UAT-facilitated ADS-B service in allowing pilots to keep
    better track of other aircraft in their vicinity and thus avoid
    mid-air collisions, are clear. As noted in the *Part 87 FNPRM*,
    moreover, UAT technology has been field-tested extensively not only
    in Alaska, but also at several sites within the continental United
    States, including the FAA Technical Center near Atlantic City, New
    Jersey, NASA's Runway Incursion Prevention System test bed at
    Langley, Virginia, and the Dallas-Ft. Worth Airport.[^20] The
    results from those field tests have persuaded the FAA and others
    that UAT technology can be safely, effectively and efficiently
    integrated into existing avionics in a manner that advances aviation
    safety. On this record, then, we agree with GARMIN and the FAA that
    it would be counterproductive to completely prohibit additional UAT
    deployment until the Commission adopts and releases a Report and
    Order addressing the *Part 87 FNPRM,* inasmuch as this may not occur
    for several months.[^21]

8.  In keeping with GARMIN's representations and our intent to authorize
    UAT operations pursuant to the instant waiver only in a manner
    consistent with the Commission's proposal in the *Part 87 FNPRM*, we
    condition the waiver on the GARMIN UAT operating only on the
    frequency 978 MHz with the emission designator 1M70F1D and a maximum
    permissible output power of 50 watts. In addition, emissions from
    the UAT must be attenuated in accordance with the emission mask in
    the proposed amendment of Section 87.139 as set forth in Appendix B
    of the *Part 87 FNPRM*; the UAT transmitter must use F1D modulation
    without phase discontinuities; and the UAT must otherwise comply
    with both FAA TSO-C154 and with RTCA DO-282. We also incorporate as
    conditions to the waiver several pledges and acknowledgements made
    by GARMIN in the Waiver Request.[^22] First, use of the GARMIN UAT
    pursuant to this waiver shall be limited to U.S.-registered
    aircraft, airport equipment operators (*e.g.*, fuel trucks, tugs,
    and snow plows), and FAA-sanctioned ground stations. Second, the
    GARMIN UAT shall be sold only through established avionics
    distribution channels authorized by the FAA to make major
    alterations and return aircraft to service. The GARMIN UAT shall not
    be made available to the general public. Third, under no
    circumstances may the operation of the UAT cause harmful
    interference or otherwise become a hazard to air navigation, or
    violate any international agreement or treaty. Should GARMIN become
    aware of any such occurrence, it must notify the Commission
    immediately. Fourth, the waiver granted herein may be terminated at
    the Commission's sole discretion, without hearing, if the Commission
    deems such action appropriate. Likewise, the Commission may modify
    the terms of the waiver at any time, at its sole discretion,
    including without limitation imposing restrictions on uplink slots,
    surveillance radius, or maximum power. Finally, the waiver is
    subject to the outcome of the WT Docket No. 01-289 rulemaking
    proceeding with respect to UAT issues, and our decision to grant the
    waiver is without prejudice to the resolution of those issues.

9.  *Conclusion*. For the reasons discussed herein, and subject to the
    conditions described herein, we conclude that grant of GARMIN's
    Waiver Request would further the public interest and is warranted
    under Section 1.925 of the Commission's Rules. We therefore
    conditionally grant GARMIN's request to waive the Part 87 Rules as
    necessary to permit the certification of its UAT Model GDL 90 and to
    authorize the use of the UAT Model GDL 90 on the frequency 978 MHz.

10. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 303(r)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Section 1.925 of the Commission's Rules, 47 C.F.R. §
    1.925, the Request for Waiver of GARMIN AT, Inc. filed April 1,
    2004, is GRANTED, subject to the conditions set forth above.

11. 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 Critical Infrastructure Division
>
> Wireless Telecommunications Bureau

[^1]: Letter dated April 1, 2004, from Larry S. Solomon, Attorney for
    GARMIN AT, Inc., to D'wana R. Terry, Chief, Public Safety and
    Critical Infrastructure Division, FCC (Waiver Request).

[^2]: ADS-B Service automatically broadcasts Global Positioning
    System-derived information on the location, velocity, altitude,
    heading, etc. of an ADS-B equipped aircraft to other ADS-B equipped
    aircraft and also to ADS-B ground stations for distribution to air
    traffic control systems. For a more detailed description of both UAT
    and ADS-B, see www.alaska.faa.gov/capstone/docs/uat.htm.

[^3]: *See* Review of Part 87 of the Commission's Rules and Concerning
    the Aviation Radio Service, *Report and Order and Further Notice of
    Proposed Rule Making*, WT Docket No. 01-289, 18 FCC Rcd 21432, 21468
    ¶ 77 (2003) (*Part 87 FNPRM*).

[^4]: *See Part 87 FNPRM* Appendix B, 18 FCC Rcd at 21505-15.

[^5]: 47 C.F.R. §§ 87.137, 87.145, 87.187.

[^6]: Waiver Request at 1.

[^7]: *Id*. RTCA is an FAA-sponsored association of aeronautical
    organizations with diverse membership. Organized in 1935 as the
    Radio Technical Commission for Aeronautics, RTCA today includes over
    200 government, industry, and academic organizations from the United
    States as well as other nations, who seek technical solutions to
    problems involving the application of electronics and
    telecommunications to aeronautical operations.

[^8]: *Id*. at 2.

[^9]: *Id*.

[^10]: *Id*.

[^11]: Letter date-stamped Mar. 19, 2004, from George K. Sakai, Spectrum
    Policy and Management, FAA, to D'wana R. Terry, Chief, Public Safety
    and Critical Infrastructure Division, FCC (FAA Letter).

[^12]: Waiver Request at 2; FAA Letter at 1. The FAA adds that since it
    maintains a data base of all avionics, including UAT, on all
    aircraft authorized to fly in the United States, it will be able to
    assist the Commission "in maintaining configuration control" should
    any final Commission Rules governing UAT differ from those proposed.

[^13]: *See* Wireless Telecommunications Bureau Seeks Comment on GARMIN
    AT Inc. Request for Waiver of Part 87 Rules to Authorize
    Certification and Use of Universal Access Transceivers, *Public
    Notice*, 19 FCC Rcd 6884 (2004). Comments were due by May 17, 2004
    and reply comments were due by May 27, 2004.

[^14]: Embry-Riddle Aeronautical University Comments (filed May 3,
    2004).

[^15]: GARMIN Reply Comments (filed May 27, 2004). GARMIN also noted in
    its Reply Comments that it has received the requisite Technical
    Standard Order authority from the FAA for operation of the GDL 90,
    that testing of the unit had been completed by a Telecommunications
    Certification Body, and that it anticipates being ready to file an
    equipment certification application in early June if allowed to do
    so. *Id*. at 2.

[^16]: 47 C.F.R. § 1.925(b)(3).

[^17]: 47 C.F.R. §§ 87.137, 87.139, 87.141, 87.145, 87.173, 87.187,
    87.263, 87.345, 87.349, 87.375, 87.417, and 87.475. We are waiving,
    as needed, both the rules specifically identified by GARMIN in the
    Waiver Request and the other rules that the Commission, in the *Part
    87 FNPRM*, proposed to amend to accommodate UAT operations, to
    better ensure that there is no unanticipated obstacle to providing
    GARMIN with the full scope of the waiver relief intended.

[^18]: *Part 87 FNPRM*, 18 FCC Rcd at 21468 ¶ 77. We emphasize that the
    instant waiver, granted under delegated authority, does not prejudge
    the Commission's resolution of the UAT proposals and issues in the
    WT Docket No. 01-289 rulemaking proceeding. As noted *infra*, the
    waiver is expressly conditioned on the outcome of that proceeding.

[^19]: The Commission generally defers to the FAA as expert agency for
    air safety*. See, e.g*., Streamlining the Commission\'s Antenna
    Structure Clearance Procedure, *Memorandum Opinion and Order and
    Order on Reconsideration*, WT Docket No. 95-5, 15 FCC Rcd 8676, 8679
    ¶ 5 (2000).

[^20]: *Part 87 FNPRM*, 18 FCC Rcd at 21468 ¶ 77.

[^21]: We note that a summary of the *Part 87 FNPRM* Proposed Rules was
    published in the Federal Register only on April 12, 2004, after
    GARMIN filed the Waiver Request, and that the pleading cycle still
    has not run its course as of the release date of this *Order*. *See*
    69 Fed. Reg. 19140 (April 12, 2004). *\[?verify latter assertion --
    reply comments due July 6\].*

[^22]: *See* Waiver Request at 2.