## Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

American electric power service )

Corporation )

)

Request for Waiver of Section 90.179 )

of the Commission's Rules )

**ORDER**

**Adopted: January 18, 2000 Released: January 20, 2000**

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

## I. Introduction

1.  On December 3, 1998, American Electric Power Service Corporation
    (AEP) filed a Request for Waiver of Section 90.179 of the
    Commission's Rules[^1] to permit it to share its 800 MHz
    Industrial/Land Transportation (I\\LT) and Business Category system
    with public safety and Federal Government users on a non-profit,
    cost-shared basis, and to operate and utilize a multistate Public
    Safety/Power Radio Service system.[^2] The Waiver Request was placed
    on public notice on July 1, 1999.[^3] We received two comments[^4]
    and three reply comments.[^5] Based on the record in this
    proceeding, we conclude that the waiver request should be granted in
    part and denied in part. Specifically, we grant the request to allow
    AEP to share its frequencies with public safety and Federal
    Government users, but we do not at this time authorize the addition
    of any frequencies designated for public safety use to AEP's system.

## 

## II. Background

2.  American Electric Power Company, Inc. serves, through its subsidiary
    operating companies, almost seven million people in parts of Ohio,
    Michigan, Indiana, Kentucky, West Virginia, Virginia and Tennessee.
    [^6] AEP, which provides support services to American Electric Power
    Company, Inc., is licensed for one hundred and twenty-five 800 MHz
    I/LT facilities that, when fully constructed, will provide
    communications capabilities over more than forty-five thousand
    square miles.[^7] AEP uses its system to dispatch and coordinate
    inspection, maintenance and emergency response activities.[^8]

3.  AEP requests (a) that it be allowed to share its system with any
    public safety agency, Federal Government agency or public service
    provider,[^9] and (b) that any public safety agencies desiring to
    add their channels to the AEP system be permitted to do so without
    seeking further authority from the Commission.[^10] Under Part 90 of
    the Commission's Rules, private land mobile radio (PLMR) frequencies
    in the 800 MHz band are divided into the following "categories": (a)
    Specialized Mobile Radio, (b) Public Safety, (c) Business, (d) I/LT,
    and (e) General.[^11] As a general matter, entities are licensed on
    frequencies in the category or categories for which they meet the
    eligibility criteria. Section 90.179(a) of the Commission's Rules
    provides that an entity may share its PLMR station only with users
    that would be eligible for separate authorization to use those
    frequencies.[^12] A waiver of Section 90.179(a) of the Commission's
    Rules is necessary to permit Public Safety eligibles and Federal
    Government entities to share AEP's I/LT and Business frequencies and
    to permit AEP and other public service providers to share Public
    Safety frequencies.

4.  In support of the Waiver Request, AEP states that it has been
    approached by a number of public safety and local government
    entities interested in the possibilities of sharing.[^13] In
    addition, AEP attached letters from Pike County, Kentucky, Emergency
    Communications Service (Pike County) and MedFlight, stating that
    they are interested in AEP's system because of their respective
    communications problems.[^14] Pike County states that due to the
    terrain of the area, its current systems do not adequately cover
    Pike County, and thus put public safety personnel in danger.[^15]
    MedFlight, an aeromedical and critical care ground transport system
    located in Columbus, Ohio, states that it covers nearly two-thirds
    of the state of Ohio and often experiences major communications
    problems in its attempts to serve such a large area.[^16]

5.  The Texas Department of Transportation (TxDOT) states in its comment
    supporting the Waiver Request that the sharing of the 800 MHz
    systems by the public safety and Federal Government entities
    promotes the Commission's goal of greater spectrum efficiency for
    those with limited resources.[^17] TxDOT currently shares two such
    systems in Texas, and states that it has enjoyed cost savings and
    enhanced communications as a direct result.[^18]

## III. Discussion

6.  To obtain a waiver of the Commission's Rules, a petitioner must
    demonstrate either that the grant would be in the public interest
    and the underlying purpose of the rule would be frustrated or not
    served by the application to the present case;[^19] or that 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.[^20] We
    find that AEP has shown that a waiver of Section 90.179(a) is
    warranted to permit it to share its I/LT and Business frequencies
    with public safety and Federal Government agencies. However, we are
    not persuaded that a waiver that would allow public safety agencies
    to add their frequencies to AEP's system is warranted at this time.
    Our basis for these determinations is set forth below.

7.  *Sharing I/LT and Business Frequencies*. We find that AEP has
    demonstrated that its first proposal involves unique circumstances.
    AEP's system, when completed, will be a state-of-the-art dispatch
    system that covers over forty-five thousand square miles.[^21] This
    area includes some remote rural areas that currently have limited
    public safety communications infrastructure and where wireless
    communications are particularly important due to the distances that
    must be covered and the relative scarcity of wireline communications
    facility.[^22] In addition, we note that

denial of the waiver could possibly undermine efforts in the public
safety community to develop and establish shared systems that foster
interoperability and operational flexibility.[^23]

8.  We conclude that granting a waiver of Section 90.179(a) under these
    circumstances would further the public interest. It is our belief
    that this proposal would provide the public safety agencies in the
    areas covered by AEP's system to obtain wide-area coverage without
    incurring the expense of constructing an entire wide area-backbone
    system.[^24] We further believe that granting the waiver will also
    facilitate communications between public safety agencies and the
    electric utilities. In this connection we note that utilities and
    other public service providers support, and sometimes respond
    before, public safety agencies when an incident occurs.[^25]
    Therefore, we believe interoperability between public safety
    agencies and public service providers such as utilities promotes
    effective public safety communications, both daily and in large
    disaster situations.[^26] We have noted the importance of
    facilitating such interoperability when granting similar
    requests.[^27]

9.  Finally, AEP has demonstrated that there are no reasonable
    alternatives within the existing rules to accommodate the described
    needs. We note that public safety agencies have special
    communications requirements, including, among other things, (1)
    dedicated capacity and/or priority access available at all times
    (and in sufficient amounts) to handle unexpected emergencies; (2)
    highly reliable (redundant) networks which are engineered and
    maintained to withstand natural disasters and other emergencies; (3)
    ubiquitous coverage within a geographical area; and (4) unique
    terminal equipment (mobile or portable units) designed for quick
    response in emergency situations.[^28] In addition, the letters from
    Pike County and MedFlight indicate that the existing systems for
    those public safety agencies are inadequate for their respective
    needs.[^29] Public safety and public service entities that need
    technically advanced, wide-area communications services, but lack
    access to spectrum and sufficient funding for systems that would
    provide the same benefits as the proposed system, have no reasonable
    alternative to the proposed system.

10. *Use of Public Safety Frequencies.* Regarding AEP's request that we
    allow public safety agencies to add their frequencies to AEP's
    system without further Commission authorization, the Association of
    Public-Safety Communications Officials-International, Inc. (APCO), a
    public safety communications organization, asserts that the scarce
    spectrum designated for public safety should not be made available
    for non-public safety use, even if it is a shared use.[^30] APCO
    further asserts that the request is premature and open-ended,
    because AEP failed to provide any specific information as to which
    public safety licensees will provide access to their frequencies,
    which Public Safety Pool frequencies will be used and the extent to
    which non-participating public safety entities may be adversely
    affected.[^31] The State of Ohio also objects to AEP's request that
    we allow public safety agencies to add their frequencies to AEP's
    system without further Commission authorization for similar
    reasons.[^32]

11. AEP responds that its sole reason for requesting the waiver is to
    accommodate the needs and requests of the public safety
    community.[^33] It concedes that it has no current requests to add
    800 MHz Public Safety Pool frequencies to its infrastructure, but
    states that it is very likely that public safety licensees will want
    to join the AEP system if the waiver of Section 90.179 is
    granted.[^34] The United Telecom Council (UTC), a trade association
    of which AEP is a member, supports AEP's request for similar
    reasons.[^35] AEP also notes that it does not need the Public Safety
    Pool frequencies to support its own internal needs.[^36]

12. We conclude that AEP's request that we allow any public safety
    agencies that may decide to utilize AEP's system to add their
    frequencies to the system should be denied. While we have permitted
    such Public Safety/Power Radio Service systems in the past, we have
    done so only at the request of specific public safety licensees to
    contribute frequencies to such systems.[^37] Moreover, in allowing
    such systems we have considered whether the arrangement would result
    in a net loss of spectrum designated for public safety use.[^38]
    Therefore, we believe that it is most prudent to authorize such
    arrangements pursuant to a request from specific public safety
    entities. Otherwise, we would be unable to determine whether a
    proposed system furthered the public interest. We find AEP's request
    to be speculative, and we are not persuaded that grant of this
    portion of its request is warranted under the circumstances
    presented.

## IV. Conclusion

13. For the reasons stated herein, we find that AEP has met the burden
    for waiver of Section 90.179 of the Commission's Rules. This *Order*
    grants AEP's request for waiver to permit it to share its I/LT and
    Business frequencies with public safety and Federal Government
    eligibles on a non-profit, cost shared basis. However, we deny AEP's
    request that any public safety agencies desiring to add their
    frequencies to AEP's system, for use by all participants in the
    system, be permitted to do so without further Commission
    authorization. The action taken herein serves the public interest in
    that it will encourage more efficient use of the spectrum and
    provide improved opportunities for interoperable communications by
    the public safety and public service community, without the
    possibility of a net loss of public safety spectrum.

## V. Ordering Clauses

14. IT IS ORDERED that pursuant to Section 4(i) of the Communications
    Act of 1934, as amended, 47 U.S.C. § 154(i), and Sections 1.925 and
    90.179 of the Commission's Rules, 47 C.F.R. §§ 1.925, 90.179, the
    Waiver Request filed by AEP on December 3, 1998, IS GRANTED IN PART
    and DENIED IN PART, as set forth above.

15. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 CFR §§ 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. § 90.179.

[^2]: American Electric Power Services Corporation (AEP) Request for
    Waiver (filed December 3, 1998) (Waiver Request).

[^3]: FCC Seeks Comments on American Electric Power Service Corporation
    Request for Waiver to Permit Sharing of Industrial and Land
    Transportation and Business System with Public Safety and Federal
    Government Users, *Public Notice*, DA 99-1301 (WTB PSPWD rel. July
    1, 1999).

[^4]: ^?^Comments were received from the Texas Department of
    Transportation (TxDOT) and the Association of Public-Safety
    Communications Officials-International, Inc. (APCO).

[^5]: Reply Comments were received from AEP, the United Telecom Council
    (UTC) and the State of Ohio. AEP filed an Additional Reply Comment
    to respond to the Reply Comments made by the State of Ohio.

[^6]: Waiver Request at 2.

[^7]: *Id.* at 3.

[^8]: *Id*.

[^9]: Public service providers are non-public safety entities that
    furnish, maintain, and protect the nation's basic infrastructures
    which are required to promote the public's safety and welfare.
    Public Safety Wireless Advisory Comm., *Final Report* 45 (September
    11, 1996) (*PSWAC Final Report*).

[^10]: *Id.* at 8.

[^11]: ^?^*See* 47 C.F.R. §§ 90.615, 90.617.

[^12]: 47 C.F.R. § 90.179(a).

[^13]: Waiver Request at 10.

[^14]: *See* Waiver Request, Ex. E (Letter from Pike County Emergency
    Communications Service (Pike County)), Ex. F (Letter from
    MedFlight).

[^15]: ^?^*See* Waiver Request, Ex. E (Letter from Pike County).

[^16]: *See* Waiver Request, Ex. F (Letter from MedFlight).

[^17]: Texas Department of Transportation Comments at 1.

[^18]: *Id.*

[^19]: 47 C.F.R. § 1.925(b)(3)(i).

[^20]: 47 C.F.R. § 1.925(b)(3)(ii) (formerly 47 C.F.R. § 90.151(a)).

[^21]: *See* Waiver Request at 2-3.

[^22]: *See* Waiver Request at 2; *see also* Report and Plan for Meeting
    State and Local Government Public Safety Agency Spectrum Needs
    Through the Year 2010, *Report and Plan*, 10 FCC 5207, 5219 (1995);
    *PSWAC Final Report* at 30.

[^23]: The Commission noted the importance of interoperability when it
    stated, "inability to communicate hinders cooperation and
    coordination between public safety agencies on a day-to-day basis as
    well as during emergencies. We believe that the present inability of
    public safety agencies to communicate with each other is one of the
    most critical deficiencies in today's public safety communications."
    The Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Agency
    Communication Requirements Through the Year 2010, *Notice of
    Proposed Rule Making*, WT Docket No. 96-86, 11 FCC Rcd 12460, 12469
    ¶ 22 (1996) (*Public Safety First Notice)*; *see* Development of
    Operational, Technical and Spectrum Requirements for Meeting the
    Federal, State and Local Public Safety Agency Communication
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, *First
    Report and Order and Third Notice of Proposed Rule Making*, WT
    Docket No. 96-86, 14 FCC 152, 156-57 ¶ 7 (1998); Development of
    Operational, Technical and Spectrum Requirements for Meeting
    Federal, State and Local public Safety Agency Communication
    Requirements through the Year 2010, *Second Notice of Proposed Rule
    Making*, WT Docket 96-86, 12 FCC 17706, 17718-23 ¶¶ 26-36 (1997);
    *PSWAC Final Report* at 19-20 and 45-48.

[^24]: *See* Waiver Request at 5.

[^25]: ^?^*PSWAC Final Report* at 33.

[^26]: *Id.* at 20, 32-33.

[^27]: ^?^*See, e.g.*, Texas Utilities Services, Inc., *Order,* 13 FCC
    4258, 4261 ¶ 7 (WTB 1997); Central and South West Services, Inc.,
    *Order*, 13 FCC RCD 16162, 16167 ¶ 35 (PSPWD 1998); *see also* H.R.
    Conf. Rep. No. 217, 105^th^ Cong., 1^st^ Sess. 572 (1997)
    (discussing 47 U.S.C. § 309(j)(2) (as amended by the Balanced Budget
    Act of 1997, Pub. L. No. 105-33, § 3002, 111 Stat. 251)).

[^28]: *PSWAC Final Report* at 14.

[^29]: *See* Waiver Request, Ex. E (Letter from Pike County Emergency
    Communications Service (Pike County)), Ex. F (Letter from
    MedFlight).

[^30]: Comments of APCO at 3.

[^31]: *Id*. at 2-3.

[^32]: *See* Reply Comments of the State of Ohio.

[^33]: Reply Comments of AEP at 3.

[^34]: *Id*. at 4.

[^35]: *See* Reply Comments of UTC.

[^36]: Reply Comments of AEP at 3.

[^37]: *See* State of South Carolina, *Order*, 13 FCC Rcd 8787, 8795 ¶
    14 (WTB 1997); Commonwealth of Pennsylvania, *Order*, DA 99-1756, at
    ¶ 14 (WTB PSPWD rel. August 31, 1999). Moreover, these requests
    involved proposals for systems that otherwise might not be
    constructed, rather than proposals to expand the frequencies of an
    existing Power Radio Service system.

[^38]: ^?^State of South Carolina, 13 FCC Rcd at 8793 ¶ 9; Commonwealth
    of Pennsylvania at ¶ 14.