**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | * | > File No. 0001801202        |
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| COUNTY OF WESTCHESTER            | ) |                              |
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| To Operate a Public Safety Radio | * |                              |
| Communications System in         |   |                              |
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| 470-480 MHz in Westchester       | * |                              |
| County, New York                 | ) |                              |
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**ORDER**

**Adopted: November 24, 2004 Released: November 29, 2004**

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

# introduction

1.  We have before us an application and a waiver request filed by the
    County of Westchester, New York, ("Westchester" or "the County") for
    authority to operate a public safety radio system on ten UHF
    frequencies[^1] in the New York Metropolitan area.[^2] Westchester
    seeks a waiver, pursuant to Section 337(c) of the Communications Act
    of 1934, as amended (the Act),[^3] of Sections 22.621, 22.651 and
    90.303 of the Commission's Rules,[^4] to use currently unassigned
    frequencies allotted for non-public safety use.[^5] For the reasons
    stated herein, we grant Westchester's waiver request.

# background

2.  Westchester is part of the New York City metropolitan area, located
    north of the Bronx, and has a population of one million people.[^6]
    Several major corporate headquarters such as those of IBM and
    Pepsico are based in the County, and Westchester provides
    electricity to the metropolitan area and water to New York City.[^7]
    Westchester asserts that due to its adjacency to New York City, a
    public safety incident in the County could affect New York City and
    vice versa.[^8]

3.  Westchester states that its limited amount of spectrum is inadequate
    to accommodate its public safety needs.[^9] The County notes that
    its current frequencies are spread across several frequency bands,
    are overcrowded, and are inadequate for multiple incident
    response.[^10] Westchester states that the purpose of a proposed new
    system is to upgrade its existing antiquated radio systems operating
    in various frequency bands in order to provide badly needed reliable
    communications and interoperability among all public safety and
    local government agencies throughout the county.[^11] Westchester
    plans to operate its public safety communications system in two
    zones, with each zone using different frequencies.[^12] Westchester
    is licensed to operate Station WPVA646, Valhalla, New York, but
    Westchester states that none of the UHF, trunked frequency pairs on
    that license can be used in the southern part of the county, closer
    to New York City, without causing or receiving interference.
    Therefore, Westchester proposes to use frequencies from Station
    WPVA646 in the northern zone.[^13] Westchester seeks the subject
    frequency pairs for trunked use in the southern zone.[^14]
    Ultimately, Westchester plans to add another frequency pair (for a
    total of six frequency pairs) to be used in the southern zone, for
    which Westchester will apply when a frequency pair becomes
    available.[^15]

4.  Because the requested frequencies are not designated for public
    safety use, Westchester requires a waiver of Sections 22.7, 22.501,
    22.621, 22.651, 90.303, and 90.311 of the Commission's Rules.[^16]
    Westchester seeks such a waiver pursuant to Section 337(c) of the
    Act.[^17]

5.  On September 1, 2004, the Wireless Telecommunications Bureau placed
    Westchester's application and waiver request on public notice.[^18]
    The Commission received comments from the State of New Jersey (New
    Jersey)[^19] and reply comments from Westchester.[^20] New Jersey
    seeks to use channels adjacent to those sought by Westchester.[^21]
    Thus, New Jersey requests the Commission to formalize what
    Westchester has recited in its application and waiver request,
    *i.e.*, that it will undertake efforts to coordinate and protect the
    relevant channels of New Jersey, Bergen County, and the Jersey City,
    New Jersey Police Department and other relevant agencies.[^22] New
    Jersey requests that the coordination occur during the construction
    and implementation period; and that the Westchester system be
    tested, so that each party can protect the other from interference.
    It also proposes that each party provide reasonable notice to the
    other of changes that could reasonably be viewed as significant once
    operations commence.[^23] Finally, New Jersey requests that the
    Commission obtain an analysis and recommendation from Westchester's
    frequency coordinator consistent with the propagation/coverage
    protocols embodied within the model developed by the
    Telecommunications Industry Association, Working Group 8.8 in
    applying interference criteria and calculation methods for wireless
    communications in the band.[^24] Under these conditions, New Jersey
    has no objection to Westchester's request.[^25] In its reply
    comments, Westchester reaffirms its commitment to coordinate usage
    of its frequencies with all public safety users in New Jersey so as
    to avoid any harmful adjacent channel interference.[^26]

#  discussion

6.  Section 337(c) of the Act provides that the Commission must waive
    any rules necessary to authorize entities providing public safety
    services to operate on unassigned non-public safety spectrum, if the
    Commission makes five specific findings:

-   public safety spectrum is not immediately available;

-   the proposed use will not cause harmful interference to protected
    spectrum users;

-   public safety use of the unassigned frequencies is consistent with
    public safety spectrum allocations in the geographic area;

-   the unassigned frequencies have been allocated for non-public safety
    use for more than two years; and

-   grant of the application is consistent with the public
    interest.[^27]

7.  Public safety services are services whose principal purpose is to
    protect the safety of life, health, or property, provided by
    governmental entities whose primary mission is the provision of such
    services, or by non-governmental entities authorized by such a
    governmental entity, and that are not made commercially available to
    the public.[^28] Based on the record before us, we find that
    Westchester is an entity providing public safety services.[^29] We
    therefore move to examining whether Westchester meets the statutory
    requirements supporting a waiver under Section 337(c) of the Act.

8.  *Immediate availability of public safety spectrum.* Westchester
    contends no public safety spectrum is immediately available that
    would support its proposed radio system.[^30] In support of its
    contention, Westchester submitted a spectrum analysis report
    compiled by an engineering consulting firm.[^31] This report made
    the following observations:

-   The 150-160 MHz band has no available frequencies that meet the
    requirements of Westchester;

-   The 450-454 and 460-466 MHz bands have no available frequencies that
    meet the requirements of Westchester;

-   470-473 MHz and 476-479 MHz bands contain 6.25 kHz bandwidth
    channels, but these frequencies are not available from a practical
    standpoint because no manufacturer provides 6.25 kHz equipment. The
    report further states these channels cannot be coordinated due to
    the close proximity of existing co-channel or adjacent channel
    users;

-   The 482-488 MHz band was permanently allocated to land mobile
    service for public safety communications on April 9, 2004.
    Assignment of individual channels to agencies is performed by the
    New York Metropolitan Advisory Committee (NYMAC). The report
    includes a letter from the NYMAC Chairman indicating that there are
    no available channels for use in southern Westchester County;[^32]

-   The 764-776 and 794-806 MHz bands, while designated for public
    safety use, are not immediately available for Westchester because
    existing television broadcast stations use these frequencies;

-   The 806-821 and 851-866 MHz bands do not have unassigned channels;

-   The 821-824 and 866-869 MHz bands have no wide-area channels
    available to Westchester according to survey of the National Public
    Safety Planning Advisory Committee.[^33]

    The spectrum analysis report is supported by a letter from the
    Association of Public-Safety Communications Officials International,
    Inc. (APCO), an FCC-certified public safety frequency
    coordinator.[^34] Based on the record before us, we concur with
    Westchester's contentions and find that no other public safety
    spectrum is immediately available to satisfy the requested public
    safety service use.

9.  *Technical feasibility of requested use without causing harmful
    interference.* Westchester's proposed frequencies are in the 470-480
    MHz band, which is allocated on a geographically-shared basis with
    television broadcast stations.[^35] In the New York City
    metropolitan area, the Commission regulates the ten requested
    frequencies under Part 22 of its Rules.[^36] Specifically, the
    Commission has designated five of the frequencies requested herein
    for point-to-multipoint transmitters used to support transmitters
    that provide public mobile service, *i.e.,* paging control.[^37] The
    other five frequencies requested herein are designated for trunked
    mobile operations, although the Commission is redesignating channels
    in this range for point-to-multipoint operation as demand decreases
    for trunked mobile operations.[^38] Westchester provided an analysis
    of potential interference and concluded that use of these channels
    by Westchester is technically feasible and will not cause harmful
    interference to other spectrum users entitled to protection from
    interference.[^39] Westchester also meets the spacing requirements
    for co-channel and adjacent channel TV stations.[^40] Westchester
    provided APCO's certification that Westchester's proposed radio
    system will not interfere with other licensed and proposed public
    safety systems.[^41] Based on the record before us, we believe the
    operational and technical parameters of Westchester's proposed
    system meet the Commission's requirements for interference
    protection to incumbent public safety licensees. Moreover, we note
    that the potential for interference to adjacent channel users is
    further diminished because Westchester will use 12.5 kHz bandwidth
    equipment on frequencies designated under Part 22 for 20 kHz
    bandwidth.[^42] We therefore find that Westchester's proposed system
    is technically feasible and will not cause harmful interference to
    protected spectrum users.

10. *Public safety use of the frequencies is consistent with other
    public safety spectrum allocations in the geographic area.* As
    Westchester notes, the frequencies it proposes to use in its public
    safety communications system are within a frequency band where
    public safety land mobile radio operations are authorized, and more
    importantly are currently being used by other public safety agencies
    in the New York City metropolitan area (*e.g.,* New York City,
    Nassau County, and Rockland County).[^43] We therefore find that the
    use of the unassigned frequency pairs for the provision of the
    proposed public safety services is consistent with other allocations
    for the provision of such services in the geographic area specified
    in the application. Moreover, because other agencies in the New York
    City metropolitan area are using these frequencies, we believe that
    granting the request will promote interoperability among public
    safety community in this area.

11. *The frequencies have been allocated for non-public safety use for
    more than two years.* The Commission allocated these frequencies for
    non-public safety use in 1994.[^44] Thus, these frequencies have
    been allocated for their present use for more than two years.

12. *Granting this application is consistent with the public interest.*
    We believe Westchester's filings demonstrate that access to
    additional spectrum is needed in order to promote effective public
    safety communications. As described by Westchester, granting the
    applications and waiver request would be in the public interest as
    it will cure deficiencies in the existing public safety radio
    systems and provide interoperability between various fire
    departments, police departments, EMS corps, and hospitals in
    Westchester County.[^45] The proposed system would be free of
    interference from other users in the New York area and would be
    adequate for response to multiple incidents.[^46] We believe that it
    would further the public interest by affording Westchester's public
    safety community the necessary spectrum to allow it to safely
    protect the lives and property in its care. Indeed, Section 1 of the
    Act defines one of the Commission's over-arching purposes as
    "promoting safety of life and property through the use of ... radio
    communication."[^47] We find it significant that granting the
    instant request will promote interoperability capability among the
    public safety community in the New York City metropolitan area.

13. We agree with New Jersey that Westchester should fulfill its
    commitment to coordinate its use of the requested frequencies. This
    will promote efficient use of spectrum while avoiding harmful
    interference to other public safety entities. Therefore, we expect
    Westchester coordinate usage of its frequencies with the relevant
    public safety users in New Jersey so as to avoid any harmful
    adjacent channel interference.

# conclusion

14. We conclude on the record before us that Westchester's waiver
    request satisfies the criteria set forth under Section 337(c) of the
    Act to obtain a grant of its application to operate a public safety
    communications system on frequencies in the 470-480 MHz band. We
    therefore grant Westchester's request.

# 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 request for waiver associated with the captioned
    application filed by the County of Westchester on July 8, 2004, as
    amended, to use frequencies 476/479.0750, 476/479.1125,
    476/479.2125, 470/473.0750, and 470/473.1000 MHz for public safety
    services as requested in the captioned application **IS GRANTED.**

16. **IT IS FURTHER 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), that File No. 0001801202 **SHALL BE PROCESSED** consistent
    with this *Order* and the Commission's Rules.

17. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0131, 0331.

FEDERAL COMMUNICATIONS COMMISSION

Michael J. Wilhelm

Chief, Public Safety and Critical Infrastructure Division Wireless
Telecommunications Bureau

[^1]: Frequencies in the 300 MHz to 3 GHz range are Ultra High
    Frequencies (UHF), but land mobile frequencies in the 450-512 MHz
    range are sometimes known as the land mobile "UHF band." In this
    *Order*, references to UHF mean 450-512 MHz. *See, e.g.*,
    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, 5215 ¶¶ 11-12 (1999).

[^2]: *See* FCC File No. 0001801202, County of Westchester (filed July
    8, 2004) (Request), as amended on August 2, 2004, August 20, 2004
    (August 20, 2004 Amendment), September 14, 2004, and September 17,
    2004. The original application requested the use of frequency pairs
    476/479.0750, 476/479.1125, and 476/479.2125 MHz. On August 20,
    2004, Westchester amended its application to request the use of
    frequency pairs 470/473.0750 and 470/473.1000 MHz.

[^3]: 47 U.S.C. § 337(c).

[^4]: 47 C.F.R. §§ 22.621, 22.651, 90.303. Westchester also requested
    waiver of any other Commission rules that are necessary to grant its
    application. *See* Request at 1.

[^5]: *See* Request at 1.

[^6]: *Id*.

[^7]: *Id*.

[^8]: *Id*.

[^9]: *Id*. at 2.

[^10]: *Id*.

[^11]: *Id*.

[^12]: *Id*. at 3, Attachment 2, Analysis of Frequency Availability for
    Westchester County Public Safety Communications by Vogel Consulting
    Group, Inc. (Vogel Report) at 3.

[^13]: *Id*.

[^14]: *Id*., August 20, 2004 Amendment at 1.

[^15]: Request at 2-3, August 20, 2004 Amendment at 1.

[^16]: 47 C.F.R. §§ 22.7, 22.501, 22.621, 22.651, 90.303, 90.311.
    Section 22.7 limits eligibility to operate on Part 22 frequencies to
    common (*i.e.,* commercial) carriers. Section 22.501 defines the
    scope of the licensing and operation of the public paging and
    radiotelephone service. Section 22.621 requires the use of
    point-to-multipoint operation on five of the requested frequencies.
    Section 22.651 requires the use of trunked mobile operations on the
    other five frequencies requested. *But see* 47 C.F.R. § 22.655 (FCC
    is redesignating public mobile channels in the 450-470 MHz range
    from trunked mobile operation to point-to-multipoint operation as
    the demand for trunked mobile service decreases). Section 90.303
    provides frequencies available for assignment to land mobile
    systems, referring to Section 90.311, which excludes frequencies in
    the 470-512 MHz range from assignment to private land mobile radio
    applicants if the frequencies are allocated for services under Part
    22.

[^17]: *See* 47 U.S.C. § 337(c).

[^18]: *See* Wireless Telecommunications Bureau Seeks Comment on Request
    for Waiver by the County of Westchester, New York to Operate a
    County-Wide Public Safety Radio System Utilizing Ten UHF Paging
    Control Frequencies, *Public Notice*, 19 FCC Rcd 17392 (WTB PSCID
    2004).

[^19]: *See* Comments of State of New Jersey (filed Sept. 22, 2004) (New
    Jersey Comments).

[^20]: *See* Westchester Reply Comments (filed Oct. 4, 2004)
    (Westchester Reply Comments).

[^21]: *See* New Jersey Comments at 2. New Jersey has applied for use of
    frequency pair 470/473.0875 MHz, adjacent to Westchester's requested
    frequency pairs 470/473.0750 and 470/473.1000 MHz. *See* FCC File
    No. 0001855193.

[^22]: *See* New Jersey Comments at 2.

[^23]: *Id*.

[^24]: *Id*.

[^25]: *Id*.

[^26]: Westchester Reply Comments at 1-2.

[^27]: *See* 47 U.S.C. § 337(c).

[^28]: *See* 47 U.S.C. § 337(f).

[^29]: *See* Nassau County Police Department, *Memorandum Opinion and
    Order*, 17 FCC Rcd 14252, 14258 ¶ 11 (2002).

[^30]: Request at 2, Vogel Report at 4-5.

[^31]: *Id*.

[^32]: Vogel Report, Appendix E, Letter dated July 8, 2004 from Vincent
    Stile, Chairman, NYMAC, to Thomas R. Raffaelli, Program Coordinator
    Radio, County of Westchester.

[^33]: Vogel Report at 4-5.

[^34]: Vogel Report, Appendix A, Letter dated June 18, 2004 from Joseph
    L. Yurman, P.E., APCO Local Advisor, Southern New York State, APCO
    International, to Mr. Thomas R. Raffaelli, Program Coordinator
    (Radio), Westchester County -- Department of Information Technology.

[^35]: Frequencies in the 470-512 MHz band, normally assigned to UHF
    Television channels 14 through 20, were made available for land
    mobile radio use in 11 cities in the early 1970s in the \"UHF-TV
    Sharing\" proceeding. *See* Land Mobile Use of TV Channels 14
    through 20, Docket No. 18261, *Report and Order*, 23 FCC 2d 325
    (1970).

[^36]: 47 C.F.R. § 22.1 *et. seq.*

[^37]: *See* 47 C.F.R. §§ 22.621, 22.627.

[^38]: *See* 47 C.F.R. §§ 22.621, 22.651, 22.655.

[^39]: Vogel Report at 7-10.

[^40]: *Id*. at 6-7.

[^41]: *See* Letter dated Oct. 18, 2004 from Lieutenant Anthony Melia,
    APCO New Jersey Frequency Advisor, APCO International, to Michael
    Wilhelm, Chief, Public Safety and Wireless Division, Federal
    Communications Commission.

[^42]: Request at 3. *See* 47 C.F.R. § 22.621.

[^43]: Request at 3.

[^44]: *See* Revision of Part 22 of the Commission's Rules Governing the
    Public Mobile Services, *Report and Order*, CC Docket 92-115, 9 FCC
    Rcd 6513 (1994).

[^45]: Request at 2.

[^46]: *Id*.

[^47]: 47 U.S.C. § 151.