**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | FCC File No. 0000598246      |
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| COUNTY OF MECKLENBURG            | ** |                              |
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| Request for Waiver of General    | *  |                              |
| Category Freeze to Permit        | *) |                              |
| licensure of 800 MHz General     | ** |                              |
| Category Station in Charlotte,   |    |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 5, 2002 Released: August 8, 2002**

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

# INTRODUCTION

1.  We have before us a request by the County of Mecklenburg, North
    Carolina (Mecklenburg) for a waiver of Sections 90.683(b), 90.615,
    90.617(d) and 90.681[^1] or Section 1.949[^2] of the Commission's
    Rules.[^3] Mecklenburg requests the waiver to permit it to obtain a
    license to operate an 800 MHz General Category[^4] Station in
    Charlotte, North Carolina.[^5] Specifically, Mecklenburg seeks
    replacement of an expired license for Station WNUL988, Charlotte,
    North Carolina.[^6] Mecklenburg applied for a new license through a
    December 18, 2001 application for frequencies in the 800 MHz General
    Category channels.[^7] For the reasons discussed herein, we grant
    Mecklenburg's waiver request.

# BACKGROUND

2.  In 1994, the Commission proposed a new licensing framework for
    Specialized Mobile Radio (SMR) systems in the 800 MHz band.[^8]
    After release of the *Further Notice*, there was a significant
    increase in the number of requests for General Category channels
    made by SMR applicants and licensees. On October 4, 1995, the
    Wireless Telecommunications Bureau suspended the filing of new
    applications for 800 MHz General Category channels (freeze) to
    ensure that resolution of the spectrum allocation issues raised in
    the *Further Notice* would not be compromised.[^9] The Commission
    subsequently redesignated the General Category channels exclusively
    to the 800 MHz SMR service, whereby mutually exclusive initial
    applications would be subject to competitive bidding, and excluded
    private land mobile radio (PLMR) licensees from eligibility for this
    spectrum.[^10] On reconsideration, however, the Commission reversed
    its decision concerning eligibility and reinstated the eligibility
    of PLMR applicants for General Category Channels.[^11] The
    Commission also partially lifted the freeze on General Category
    channels to permit potential Economic Area (EA) applicants[^12] to
    relocate incumbents from the upper 10 MHz block of 800 MHz spectrum
    to the General Category channels.[^13] In all other respects, the
    Commission maintained the freeze so as not to frustrate its efforts
    regarding future licensing of General Category channels.[^14]

3.  On March 6, 2001, Mecklenburg's authorization for Station WNUL988,
    which operated on channels 851.3375, 851.3625, 852.3375, 852.3625
    and 853.3375 MHz, expired. On December 18, 2001, Mecklenburg filed a
    new application for an authorization to operate a Public Safety Pool
    Station in the Charlotte, North Carolina area on General Category
    frequencies 851.3375, 851.3625, 852.3375, 852.3625 and 853.3375
    MHz.[^15] In its application, Mecklenburg asserts that the instant
    channels are critical to the County's public safety communications
    system, which is used by police, fire, and medical, as well as other
    safety organizations that rely on the Station for emergency
    communications.[^16] The North Carolina Department of Crime Control
    & Public Safety Division of the State Highway Patrol states that the
    instant frequencies, combined with other current licenses, form the
    backbone of North Carolina's largest 800 MHz public safety system
    and support over 8500 units owned and operated by the County of
    Mecklenburg and the City of Charlotte (Charlotte).[^17]

4.  In a February 21, 2002 letter, Mecklenberg supplemented its renewal
    request by explaining that the station serves an urban region
    containing 6.3 million people within a 100-mile radius of Charlotte.
    This region is a major crossroad of commerce, transportation, rail
    and highway infrastructure and facilities.[^18] Mecklenburg further
    asserts that the frequencies sought are a critical part of the
    emergency communications for police, fire, and emergency medical
    services in downtown Charlotte, N.C. [^19] Mecklenburg explains that
    the frequencies are part of a system designed to operate in a
    difficult environment with numerous high rise buildings and steel
    structures.[^20] In addition, two nuclear plants are near downtown
    Charlotte. Specifically, the McGuire Plant is approximately
    seventeen miles away and the Catawba Plant, in York County, is
    approximately twenty-five miles away.[^21] The frequencies are
    critical to enhancing the County's wireless infrastructure.[^22]

5.  Nextel Communications, Inc. through its wholly-owned subsidiary,
    Nextel Spectrum Acquisition Corp. is the EA licensee of EA 023
    (Charlotte) Blocks D, E and EE, which contain the five frequencies
    (851.3375, 851.3625, 852.3375, 852.3625 and 853.3375 MHz) on which
    Mecklenburg seeks to operate.[^23] Mecklenburg asserts that Nextel,
    the EA licensee, supports a grant of Mecklenburg's application.[^24]
    Nextel concurs with Mecklenburg's operation on the instant
    frequencies because of the public safety nature of the station's
    use.[^25]

6.  In its May 30, 2002 letter, Mecklenburg sets forth the efforts it
    has made to ensure future compliance with the Commission's rules
    Mecklenburg had its license application frequency coordinated,
    obtained and timely renewed an STA authorizing it to continue
    operating on the subject frequencies. Mecklenburg also conferred
    with both the Association of Public-Safety Communications Officials
    and the Chair of the 800 MHz Regional Planning Committee to ensure
    effective future license administration, and hired both a spectrum
    resources service and legal representation to facilitate compliance.
    Lastly, as stated above, Mecklenburg obtained the consent of Nextel,
    the affected EA licensee in this matter.

# DISCUSSION

7.  The Commission will grant a waiver of its rules if (a) it is in the
    public interest and the underlying purpose of the rule would be
    frustrated or not served by application to the present case, or (b)
    in view of unique or unusual factual circumstances, application of
    the rule would be inequitable, unduly burdensome, or contrary to the
    public interest, or the applicant has no reasonable
    alternative.[^26] In this case, after Mecklenburg let its license
    expire, Nextel obtained the right to operate on these channels
    pursuant to its EA licenses. Mecklenburg therefore requires a waiver
    of Section 90.683(b) of the Commission's rules to obtain a new
    authorization for its continued operations on the subject
    frequencies. Mecklenburg, a public safety entity, also requires a
    waiver of Sections 90.615, 90.617(d), and 90.681 of the Commission's
    Rules, which collectively make these frequencies available for
    licensing only on a geographic area basis.[^27]

8.  The purpose of the rules for which a waiver is needed is to provide
    a fair and equitable balance between competing interests of 800 MHz
    licensees seeking to provide local service and those seeking to
    provide geographic area service.[^28] The rules promote competition
    while providing opportunities for incumbents to continue to pursue
    their business plans, allowing licensees the opportunity to deploy a
    multiplicity of technologies and promote technical innovation.[^29]
    The rules also further the goal of regulatory symmetry between 800
    MHz licensees and other competing providers of Commercial Mobile
    Radio Services.[^30]

9.  In this case, we conclude that Mecklenburg has demonstrated that
    grant of a waiver is warranted under the first prong of the waiver
    standard. We conclude that the underlying purpose of the rules would
    not be frustrated in this instance because Nextel, the EA licensee
    for the subject frequencies, consents to the grant of Mecklenburg's
    application. Further, the purpose of the rules would not be
    compromised by grant of a waiver because Nextel, through its EA
    license, has extensive authority to operate throughout the EA but
    has voluntarily elected to accommodate Mecklenburg's proposed
    continued operations. Moreover, Nextel could choose to partition or
    disaggregate its EA license;[^31]thus, Nextel could have elected to
    enter into a sharing arrangement with Mecklenburg. We also consider
    it significant that Mecklenburg had a prior license authorizing its
    operation on the instant frequencies in the 800 MHz General
    Category. If Mecklenburg had not allowed its license to expire,
    Nextel would have been required to protect Mecklenburg's prior
    operations.[^32] Thus, granting Mecklenburg request will be not
    increase the actual number of station licensees than there were at
    the time Nextel acquired its EA license.

10. We also conclude that grant of a waiver would be in the public
    interest. Mecklenburg has made a detailed showing that use of these
    frequencies are critical elements of Mecklenburg's public safety
    communications system. We note that we have granted other waivers of
    the General Category freeze when applicants have demonstrated strong
    public interest reasons for a waiver and the affected EA licensees
    have not objected to the waiver.[^33] We believe the same principles
    apply here. We conclude, based on the record before us, that the
    County of Mecklenburg, North Carolina's waiver request should be
    granted.

# ORDERING CLAUSES

11. Accordingly, 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, that the waiver request filed
    by the County of Mecklenburg, North Carolina on July 30, 2001 with
    respect to FCC File No. 0000598246 IS GRANTED.

12. IT IS FURTHER ORDERED, pursuant and Section 4(i) and 309(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 309(a),
    that the Licensing and Technical Analysis Branch SHALL PROCESS FCC
    File No. 0000598246 in accordance with this *Memorandum Opinion and
    Order*.

13. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331of 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]: 47 C.F.R. §§ 90.683(b), 90.615, 90.617(d) and 90.681.

[^2]: 47 C.F.R. § 1.949.

[^3]: Letter, dated May 30, 2002, from John E. Logan, Special Counsel
    for Mecklenburg County to John Schauble, Chief, Policy and Rules
    Branch, Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau dated May 30, 2002 (May 30, 2002 letter).

[^4]: The General Category is comprised of one hundred and fifty
    contiguous 25 KHz channels in the 800 MHz Band. *[See]{.underline}*
    47 C.F.R. § 90.615.

[^5]: Letter, dated July 30, 2001, from Gordon S. Walker, Mecklenburg
    County, NC to Licensing and Technical Analysis Branch, Federal
    Communications Commission filed with December 18, 2001 application
    for new license in 800 MHz General Category Channels (Application).

[^6]: *Id.* On July 30, 2001, Mecklenburg petitioned for a waiver of 47
    C.F.R. §§ 1.949(a) and 1.955(a)(1) to allow "reinstatement" of its
    license for Station WNUL988. *See* Letter, dated July 30, 2001, from
    Gordon S. Walker, Mecklenburg Telecommunications Manager. This
    petition for reinstatement of Station WNUL988 is superseded and made
    moot by the subsequent application for a new station in the 800 MHz
    General Category channels. Thus, we do not address the grounds for
    the petition for reinstatement contained in Mecklenberg's July 30,
    2001 letter. Our decision need consider only the waiver request for
    grant of a new license.

[^7]: *See* FCC File No. 0000598246.

[^8]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Further Notice of Proposed Rulemaking*, PR Docket No. 93-144, PP
    Docket No. 93-253, 10 FCC Rcd 7970 (1994) (*Further Notice*).

[^9]: *See* Licensing of General Category Frequencies in the
    806-809.750/851-854.750 MHz bands, *Order*, 10 FCC Rcd 13190 (WTB
    1995).

[^10]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of the SMR Systems in the 800 MHz Frequency Band,
    *First Report and Order, Eighth Report and Order and Second Further
    Notice of Proposed Rulemaking*, PR Docket No. 93-144, GN Docket No.
    93-252, PP Docket 93-253, 11 FCC Rcd 1463 (1995) (*800 MHz SMR
    Report and Order*), and *Memorandum Opinion and Order on
    Reconsideration*, 12 FCC Rcd 9972 (1997) (*800 MHz SMR Memorandum
    Opinion and Order*).

[^11]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of the SMR Systems in the 800 MHz Frequency Band,
    *Memorandum Opinion and Order on Reconsideration*, PR Docket No.
    93-144, GN Docket No. 93-252, PP Docket 93-253, 12 FCC Rcd 9972,
    9975 ¶ 4 (1997).

[^12]: In the *800 MHz SMR Report and Order*, the Commission adopted
    geographic licensing based on EAs for the upper 10 MHz of the 800
    MHz SMR service. *See* *800 MHz SMR Report and Order*, 11 FCC Rcd at
    1484 ¶¶ 24-25. The U.S. Department of Commerce Bureau of Economic
    Analysis has established 172 EAs which cover the continental United
    States. *See* Final Redefinition of the BEA Economic Areas, 60 Fed.
    Reg. 31114 (Mar. 10, 1995).

[^13]: *See* *800 MHz SMR Report and Order*, 11 FCC Rcd at 1508 ¶¶
    74-75.

[^14]: *Id.* at 1509 ¶ 76.

[^15]: FCC File No. 0000598246.

[^16]: *Id.*

[^17]: Letter, dated February 6, 2002, from Harold Meacombs of the North
    Carolina Department of Crime Control & Public Safety Division of the
    State Highway Patrol to Wendy Caruthers, APCO-AFC, Daytona Beach,
    Florida. This letter was included with the request for a Special
    Temporary Authorization filed by Mecklenburg.

[^18]: Letter, dated February 21, 2002, from John E. Logan, Special
    Counsel to the County of Mecklenburg, North Carolina to John
    Schauble, Chief, Policy and Rules Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau, Federal
    Communications Commission.

[^19]: *Id.*

[^20]: *Id.*

[^21]: *Id.*

[^22]: *Id.*

[^23]: *See* Letter, dated July 31, 2001, from James B. Goldstein,
    Regulatory Attorney -- Government Affairs, Nextel Communications to
    the Licensing & Technical Analysis Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau, Federal
    Communications Commission (Nextel Letter).

[^24]: Walker Letter, *supra*.

[^25]: Nextel Letter.

[^26]: *See* 47 C.F.R. § 1.925(b)(3).

[^27]: *See* 47 C.F.R. §§ 90.615, 90.617(d), 90.681.

[^28]: *See* *800 MHz SMR Report and Order*, 11 FCC Rcd at 1468 ¶ 2*.*

[^29]: *Id*.

[^30]: *Id*.

[^31]: *See* 47 C.F.R. § 90.911.

[^32]: *See* 47 C.F.R. § 90.693.

[^33]: *See* State of Florida, *Order*, 16 FCC Rcd 2174 (WTB PSPWD
    2001); City of Denton, Texas, *Order*, 15 FCC Rcd 23643 (WTB PSPWD
    2000).